Appearance in Criminal Law. Illusion and Reality in the Description of Evil

Studiu publicat în volumul In Honorem Flavius Antoniu Baias. Aparența în drept, tomul II, Ed. Hamangiu, București, 2021, p. 682-702.

1. In criminal justice systems, defining the conditions of liability is a complex task. One set of problems derives from the many functions that criminal norms must simultaneously carry out: providing rules of conduct for ordinary citizens, limiting the discretionary power of prosecutors, judges, and juries; establishing the foundation for sentencing. 

On the route of setting the conditions of liability, a very crucial step is that of defining the form and content of the specific offences. This step requires selecting and modelling specific paradigms of human conduct to be described and forbidden. 

The definition of the various offence could be hypothetically created by an act of arbitrary will and could consist of any command the law maker has the force to impose. We can also think that a hypothetical legislator might concentrate in “global, comprehensive rules” all the conditions of liability: from the requirements of mental capacity to the variables concerning justifications and excuses. In short, we could think of rules including a list of everything that must be verified for a sanction to be applied. However, this is not the way things have usually gone. Substantive criminal law has been having, especially in the last two centuries, a quite stable structural physiognomy. At least in respect to fundamental crimes like murder, larceny, robbery, rape, arson, burglary and so on. Criminal law does not provide global, comprehensive rules of liability^[1]. Rather it focusses on specific conducts, listing, in its “special part”, a series of “offences” and leaving to different rules and sources of law (the general part, the case law, the legal doctrine) the definition of the other requirements of liability (criminal capacity, justifications, excuses, and so on).

2. Each offence definition is expressed by language^[2]. However, one of the most surprising features of the criminal law is probably the most evident: criminal law doesn’t use direct speech. It doesn’t say “don’t steal!” or “don’t kill! Criminal law establishes the fundamental rules of conduct for all members of the society and yet doesn’t recur to direct imperatives^[3]. 

Criminal law doesn’t speak, doesn’t “say”; it rather… “tells”. 

It orders by telling, by storytelling. It orders through the narration, the depiction, the illustration of what is wrong. Prohibitions and commands are expressed by a narrative, which consists of micro-stories, kind of “bonsai tales” which render a vision: a vision about the appearance of what is wrong, unjust, evil^[4]. 

3. This is true both at common law and according to statutory law. Let’s consider “burglary”: its narrative, according to the common law definition, tells the story of “someone who’s breaking and entering the house of another in the nighttime, with intent to commit a felony therein….”^[5]. The tale of larceny tells us of “someone who’s taking and carrying away the property belonging to another…”^[6]. 

Statutory story telling is not different: robbery narrates of “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear”^[7]; arson is the story of “who sets fire to or burns or causes to be burned… any structure forest land, or property^[8]. Art. 624 bis of the Italian Criminal Code defines a particular kind of theft, “purse snatching”, as the story of someone “[…] who gets the possession of another’s chattel, […] taking it from the person that holds it, by grabbing it out of another’s hands or ripping it off the person, to obtain a profit for himself or others”. And so on^[9]. 

4. The narrative of a wrongful conduct (an action and often an omission) is the essential instrument used to shape and communicate the prohibition^[10]. The narrative generates, with its style, images, mental images, of what is evil, wrong, unjust. The narrative style is an example of what, in rhetoric, is called “hypotyposis”^[11]: hypotyposis is a “way of telling” that enhances the capacity of words to “put in front of the eyes” of the reader the content of the narrative. As a sort of mirror of horror, the words of the law vividly reflect the appearance, the iconography of the prohibited behaviours. Thanks to hypotyposis, thanks to the hypotyposis of the narrative, it is possible to clearly imagine how the evil, the wrong, the unjust look like. 

Images generated by language are mental images. But the history of law and the history of art show that it is not difficult to pass from the mental imagery to an actual depiction of offences, representing them in real pictures. This is an example for an old Criminal law treatise, the Praxis rerum criminalium first published by Dutch criminalist Joos Damhoudere in 1554^[12]:

Criminal law is indeed the most visual and iconographic branch of the legal system. It works projecting in the minds of the citizens the visible forms, of the appearances of what must not be done^[13]. 

The possibility to render the imagery of norms is not common to other areas of the law^[14]. It depends on the very particular narrative used by criminal law to describe offences. In private law, extracontractual responsibility often depends on a general, non-typified, duty not to damage others (principle of neminem laedere). According to art. 1240 of the French civil code, «Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer». What matters is simply the causation of harm, no reference is made to the modality of the action. Private, administrative, procedural, and even constitutional law seldom adopt the hypotyposis style of criminal law: the requirements of a valid contract are usually “listed”, not “visually narrated”; the same can be said about the legal conditions necessary to form a valid testament, to start a company or to finalize a divorce. What possible storyboard can be written out of definitions like art. 1550 of the California civil code, that says: “It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration”?

5. Defining an offence is indeed a quite demanding enterprise. Words would convey little meaning if they did not picture a comprehensible paradigm of wrongdoing, of evil, if you like: a form of conduct, the picture of an appearance that “makes sense” for the members of the community. Defining an offence requires the ability to conceive and design appearances, the ability to identify patterns of wrongdoing, to catch paradigmatic forms of action, to elaborate “types” and to coin their impression into the words of a definition. 

“Type”: here is the essential concept. Defining an offence, is an activity of type-making^[15]. Making a type means to create a paradigm, an iconic shape, an appearance which renders an exemplary form of wrong, of evil. Defining larceny, rape, robbery and so on means to forge types. Typification of offences is a circular process: types, in some way, pre-exist the legal definition, but they are also shaped by the process of law making. Making an offence-type is an activity similar to the work of a sculptor, who has to set free a precise form out of a block of gross marble; other times typification is similar to the work of a painter who proceeds with a more plastic, continuous, proactive creation. 

Throughout history, and especially in the remote past, offence types have been defined in the first place within the society. Communities identified shared patterns of relevant wrongdoing and these patterns constituted the basis for prohibitions and sanctioning: larceny, burglary, arson, rape, battery, and other similar conduct crimes, are the outcomes of this kind of type making. They all reflect very visible conducts: taking and carrying away a piece of property; entering a dwelling of another; setting a fire; using force to have a sexual intercourse and so on. The prohibited behaviours are very material, physical, graphic; the action speaks by itself, openly expressing, in front of a hypothetical observer, “a pattern of manifest criminality”^[16]. 

Over the centuries, offence-types have been more and more elaborated by the “hand-crafted work” of legislators and courts, who mirrored what society had already developed, but often took the lead in a more proactive making of the offence definition. Following the evolution of society, offence types evolved: the effective causation of harm on the one hand, and the subjective elements of the crime (such as intention, malice) gained an increasing importance. The work of legislators and courts received a substantial support also from scholars, such as the authors of the common law treaties written in the XVII and XVIII centuries. They helped the typification enterprise, reviewing and rationalising cases, elaborating conceptual frames, identifying patterns of wrongdoing, and proposing offence definitions.

This is of course an ideal picture, and, over the centuries, the process hasn’t gone always so happily and smoothly. Sometimes typification was relatively easy to make, but the outcome was terrifying: totally unacceptable according to contemporary standards of justice. Criminalization targeted harmless behaviour, or behaviour simply motivated by different ideological orientation: it was the case of offences concerning heresy, witchcraft, homosexuality, critical speech, and the expression of new ideas. Not acceptable today, yet offences typifying these behaviours often reflected, at the time, shared beliefs about wrongdoing. 

Typification is other times incredibly difficult. As we well see, this happens when wrongfulness cannot be easily associated to a univocal form of human conduct, when there is no constant shape, no isomorphism in the way a particular wrong occurs. Frauds and misappropriations are, for the protean forms of their phenomenology, crimes traditionally hard to typify. 

From being an exception, crimes of difficult typification became today almost the rule^[17]. Many new offences, especially those concerning economic activities or other complex social interaction cannot be reduced to univocal, constant, visible forms of wrongdoing. Securities offences, tax, and computer crimes, for example, can take protean forms and most of them are not materially visible when they occur. There is no manifest criminality associated to a specific form of conduct. Insider trading consists in trading a company’s securities by individuals having access to non-public information: to appraise whether the kind of trade, the kind of information and the kind of relation between the individual and the company make someone responsible, prosecutors and defence attorneys may debate, analysing and interpreting hundreds of transactions and apparently innocuous conduct. Similarly, organized crime activities are almost impossible to define referring to constant forms of conduct: think of the multiform modalities trough which gangsters establish and manage illegal networks, reach, and implement agreements, build, and operate unlawful schemes. 

The point is that, today, there is no isomorphism in the way wrongfulness occurs. This is not surprising, since the difficult identification of univocal and conclusive types of criminal conduct is part of a more general trend that affects contemporary life. 

We all experience the increasing immateriality of contemporary reality. We all experience how difficult has become to build, at the social level, an epistemology grounded on the external appearance of things. Meaning is often disconnected from the shapes of the physical reality (we can conclude the same contract dealing with a human being, with a machine, with a website). Meaning is disconnected from the forms of apparent behaviour which comes to our sight: for example, the conduct of someone sitting in front a computer and typing of its keyboard is a conduct per se meaningless: indeed, what counts is not the external shape of that conduct, but the interaction between a person and whatever the computer allows to do, for example moving money worldwide navigating on the internet. 

The search for meaning requires today, more than in the past, a constant and sophisticated hermeneutics of reality as it appears. We must constantly interpret and appraise the appearance of things, taking them not literally, but as signs of different possible meanings. We must constantly ask ourselves whether conducts that look the same, as sitting in front of a computer, do really have the same meaning. On the other hand, we must consider whether conducts that look different, for example sitting in front of a computer to carry out an illegal appropriation of money or the trespassory taking of money from another’s possession have really a different meaning. Often, the correct answer is counter-intuitive: in respect to the production of harm, the same shape of conduct may have different meanings while different shapes of conduct may have the same meaning. 

6. Today, the primary maker of typification is the legislator. Since punishment is the most severe suffering that the State can impose upon an individual, criminalisation and offence definition require a specific set of warranties. Statutes are deemed to be the only appropriate answer for the major concerns involved in the making of criminal law. Therefore, the problem of offence definition is usually discussed under the umbrella of the principle of legality: nullum crimen, nulla pena sine lege.

The debate goes through a series of questions of ethical and political nature such as: who’s legitimated to create criminal law? to what extent law makers must enjoy a democratic investiture? are there substantive limits to criminalisation? what are the limits of judicial creativity? is retroactive law making admissible? Finally: who should define offences and how definitions should look like?

Issues of legitimacy and legality of offence making have been explored at length. Clarity, accessibility, conciseness, precision of the criminal law has been a major concern. Most of the codification work was, and it is, sustained by sophisticated studies about good legislative drafting. 

Notwithstanding such a widespread interest for legal and legislative drafting, the prevailing approach about offence definition remained confined within the conceptual frame of the legality principle. The goals of good drafting were the ones celebrated by legality: offence definitions should communicate clear and understandable rules of conduct to citizens and to provide binding criteria for adjudicators and law enforcement agencies. Most of the analysis about legislative drafting has been motivated – no matter how theoretical the preparatory research had been- by the intention to offer practical instructions to law makers. 

This concern shadowed the interest for the literary aspects of statutes and little attention was paid to offence definitions as pieces of narrative. Little attention was paid to styles, to ways of telling, to the kind of the prose adopted by those texts to describe what an offence is about.

7. Exploring the narrative of criminal offences in not, or not only, a journey in the land of aesthetics. 

The way of writing, the literary style adopted by law makers in order to define criminal offences is not interesting as a matter of artistic taste, fascination or good rhetorical ornament. Offence definitions are, in the first place, ways of telling what wrong, what evil is about. So, a first set of questions will be what kind of writing technique statutes use and why. These questions are not too far from the above-mentioned concerns for the goals of the legality principle, but attention for the narrative offers a different approach to the matter, showing how narrative can catch the shape of evil and how can communicate it both to citizens and adjudicators. 

However, the narrative of offence definition is not interesting only as an instrument capable to effectively communicate rules of conduct and rules of adjudication. Offence definitions and the types that they render are interesting also because they pose a problem of metaphors. First because single words of the definition can be metaphors or can be interpreted metaphorically. In the second and most important place, because each offence, each type, can be seen as a metaphor. Each type of offence, picturing a paradigmatic image of evil, can be seen as a metaphor of the more general idea of evil. 

The same way a painting is a metaphor of the subject that the artist wants to render.

8. Considering the aims and function of the criminal law, the iconographic nature of offence definitions can be surely considered a very effective technique of communication. As we said at the beginning of this paper, the criminal law bears, indeed, simultaneous burdens: to give rules of conduct to citizens, and to set rules of adjudication for judges and juries, telling them at which condition they can convict and punish.

Both tasks, individually and jointly considered, are demanding and difficult to carry out. Communicating rules of conduct is difficult for obvious reasons, the first being the kind of targeted addressees. More than other branches of the legal system, criminal law aims to reach the general public, the common citizen, someone who may know nothing about legal concepts. It is not easy to reach and to communicate rules of conduct to this audience. One way to approach the ordinary person would be to make language as easy as possible, as close as possible to everyday speech. While this solution would immediately open the problem of compatibility with the other goals/functions i.e., with the need to provide an effective guidance of adjudicators’ decisions, it is also doubtful that “simple language”, would be apt to effectively communicate prescription to ordinary citizens. 

Years ago, Professor Paul Robinson elaborated a sophisticate analysis of codification and concluded that criminal codes are not functional because they pretend to satisfy too many functions at the same time: communication of rules of conduct, establishment of rules of adjudication, grading of different classes of offence gravity^[18]. He argued in favour of optimization of each function and proposed elaborating separate codifications for each of the functions. Together with Peter Greene and Natasha Goldstein, he wrote the text of a possible code of conduct and of a possible code of adjudication^[19]. While a detailed analysis this proposal is not possible here, it seems that its most disappointing outcome is that concerning the code of conduct. Adopting direct imperatives like “You should not cause bodily injuries or death to another person” add little to what everybody already knows. Furthermore, since these rules of conduct are not redrafted by Robinson Greene and Goldstein in their drafted code of adjudication (which imputes liability assuming a violation of the rule of conduct), these vague imperatives remain as a very weak guidance for adjudication.

What seems to be objectionable about the idea of an “easy language” as a solution to elaborate a code of conduct for the ordinary citizen, is the assumption that easy communication is a matter of easy words. This approach is objectionable, since communicating what an offence is about, is not merely a matter of words. No definition is successful simply because the ordinary citizen doesn’t have to look words up in the dictionary. 

An offence definition is successful when its narrative is able to picture a type, a form, an icon of evil, of wrong, which is clear and understandable: for the ordinary citizen as for the professional technician. This is not a matter of mere linguistic; a type is understandable when language is able to produce a clear and shared imagination about the prohibited behaviour. For the same reason, when an offence definition depicts a type of offence that is clear for the social imagination and the ordinary citizen, that definition will be a clear and really binding definition also for adjudicators. Language is effective when it pictures an icon of wrongdoing which both ordinary citizens and adjudicators can retrieve in their common imagery. 

The realistic narrative of offence definition is able to produce an imagery, an iconography of offence types. As we will see, these types are sometimes mirrored from real life, other times they are elaborated in a more sophisticated way, as metaphors of an idea of wrongfulness that is not easy to catch and express directly. In both cases, narrative, and not language per se, is the essential instrument of communication. 

9. As we have seen, offence typification often coincides with the reception, and in various degrees with the production, by the law maker, of an iconic definition of evil, of wrong. The definition should be able to connect the legal rule to a social imagery. A shared social imagery is what really gives meaning to the words of the definition. 

In is not easy to trace the remote origins of offence typification, and, in particular, of a typification approach that relies on a visual imagery of wrongdoing. Typification, and the concern for well drafted offence definitions, is surely connected with the rise of the principle of legality, which developed in late XVIII thanks to the Enlightenment cultural turn and the movement for the codification of criminal law. Clear definitions elaborated by a legitimate law maker (parliaments in the main place) constitute an important safeguard against possible abuses of law enforcement agencies. They also warranty certainty of the law and set limits to judicial interpretation. As known since the time of legal realism, this idea of legality is to a good extent wishful thinking. But this is not the question here. The connection between the rise of the legality principle and a totally new and motivated interest for careful legal drafting cannot be seriously doubted. 

However, it is hard to say that typification of offences was unknown to criminal justice systems before Montesquieu, Voltaire, Rousseau or Beccaria posed the foundation of the modern rule of law. 

The effort to define wrongdoing, and the trend to define it iconographically is present from the very beginning of human civilization: the Hammurabi code (about 1790 BC) is an evident example^[20], as well as, in the following centuries, ancient Roman laws, Middle Ages statutes^[21], compilations of laws of the XVI-XVII centuries such as the Constitutio Criminalis Carolina^[22]. A remarkable interest for offence definition is also present, over the centuries, in almost all scholarly work. 

This being the historical evidence, it follows that typification of wrongdoing, as well as the use of realistic narrative to describe its iconography, is in some way independent from the discovery of the modern principle of legality and from the factors that, in the last two centuries, have been pushing post Enlightenment legislators to carefully describe crimes. 

Typification seems to be not only a way to effectively communicate rules to citizens and to effectively constraint the power of adjudicators. Defining a type seems to be the fundamental tool to conceive and structure the prohibition. Making a type means to build a bridge between what a community consider evil, wrongful and an “appearance of things” to which wrongfulness must be linked to be recognized. 

10. The relation between the idea of evil shared by a community and the identification of a list of emblematic behaviours can be very complex. 

Identifying specific forms of conduct, structuring a “pattern the manifest criminality”, is one way of establishing the link. Few pages ago, introducing the concept of typification, we mentioned how important it was, for the development of early crimes, the emergence, in the society, of shared beliefs about visible patterns of aggression. Following the influential arguments developed by George Fletcher, we stressed how these offences revealed a “pattern the manifest criminality”. The prohibited conduct of larceny, for example, is very physical, graphic: any hypothetical observer would judge it as wrong. Formalism, iconicity, isomorphism in the modalities of aggression, univocal meaning of appearance: these seem to be the relevant features of wrongdoing as directly elaborated by the society. 

Without calling these conclusions under question, one may ask whether the formalism of offence types has deeper roots. Whether the relevance of iconographic wrongdoing and the importance of attributing univocal meaning to particular shapes of conduct is common to other social rules. 

One interesting perspective is to notice how these features are common to norms concerning rituals and taboos, such as the so-called rules of purity^[23]. Ancient societies, as well as religious communities, developed and still have a wide range of rules concerning everyday’ s behaviours, rules aimed to prevent impurity, danger, and conflict with God, or with other of supernatural entities. Impurity is a broad concept, including all kind of areas of the social life, such as religion, interpersonal relations, food, hygiene, sex. Examples of these rules are numerous in the Bible, as well as in many religious settings. These norms present, as a constant feature, the highly iconographic, manifest, shape of the prohibited (or of the imposed) conduct as well as a shared understanding about its univocal meaning. We find obligations to do things in a certain way, following precise modalities and a well-defined ritual; we find obligations to refrain from specific behaviours, which also are defined describing the forbidden modality of acting. 

The focus on formalistic modalities of conduct was very important also in the ancient versions of offence definitions. So important to overshadow the very idea of harm. A paradigm of conduct was relevant as a prohibited modality of acting. The analysis of the most ancient Roman laws shows, for example, features very similar to those of purity rules: the oldest crimes of public nature were types of wrongdoing connoted by a very particular modality of the action and the univocal meaning. Even murder, was relevant as a public wrong only if carried out in a particular way. What made the difference was the threat such modalities of conduct were deemed to pose to “the peace of the gods” (pax deorum). What is interesting is that relevance of prohibited behaviour was not affected by the consideration of actual harm (to life, to property etc.) but mainly by the shape of the conduct, by the univocal meaning of the typified paradigm of wrongdoing. 

The analysis of ancient criminal law shows the importance of appearance, of formalism, of “literal” definition of what evil and wrongfulness are about. Wrongdoing embeds evil/wrongfulness. The appearances of evil have a literal meaning: they not only appear as evil, but they are the evil.

As we mentioned, the most remote Roman laws selected as crimes of public concern types of wrongdoing connoted by a very particular modality of action. Even murder, was relevant as a public wrong only if carried out in a particular way, for example in the case of a son killing a father who was heard to shout and cry because of the beating. Or in the case of a pregnant woman who died and was buried without extracting the foetus. What really mattered was not harm “per se”, but rather the conflict between a form of conduct and some kind of higher order. An order that was public, common to entire community, and that was shaken, threaten by the performance of the prohibited conduct. Oldest serious crimes were, for example in Rome, offences against “the peace of the gods” (pax deorum). Threat to this peace was not the consequence of the aggression of individual or socially concrete legal interest (such as life or property), but mainly derived from the violation of an order, which was not a political order, but also a metaphysical order. Violation of this order depended on the “outrageous meaning” of particular forms of conduct.

Linking typification of offences to typification of rules of purity is interesting in various respects. The focus on formalistic modalities of conduct, which characterizes rules of purity, is quite like the “manifest criminality” approach which characterized typification of ancient criminal law. The focus on the modality of action is, in both cases, so important to overshadow the very idea of harm. Paradigm of conduct are relevant mainly as prohibited modality of acting.

Both set of rules have in common the very figurative nature of the prescriptive indication. Both refer to analytical modalities of doing, picturing the forms of behaviour to refrain from, or to be followed in case of positive obligation. Both set of rules have a problematic relation with the prevention of actual “danger”, to a meaningful interest. Even if we tend to see both kinds of rules as aimed to prevent harm, dirt, unhealthy behaviours, often the ritual, formalistic, extrinsic shape of the action is the only thing that really matters. Meaning is univocally attached to specific forms, to specific paradigms of conduct: taking and carrying away the property of another is prohibited as it is prohibited shaving with the wrong hand or eating an impure animal. No actual pecuniary loss is requested to make the trespassory taking punishable as no effective health damage is requested to ground a rule of purity. 

11. Are the paradigms of behaviour defined by the legal definition of the offence crystallised images, still lives to be hung up like paintings in a museum? Or do they interact and change constantly in their relationship with the “formless” world of values and with that of the evil, of the wrongful, of the unjust, whose original form is equally beyond our grasp? In short, what really counts? The appearance, the form, the very icon of prohibited fact as portrayed by the offence definition or, rather, the correspondence between this appearance and some deeper notion of evil, of unjust, which we may assume to stand at the back of the prohibition?^[24]

“O quanta species! sed cerebrum non habet!”^[25]: thus exclaims the fox in a famous fable of Phaedrus as it contemplates the empty beauty of the tragic mask. Must we, too, like the fox, focus on the relationship among these forms, the appearance we find engraved in the definition of an offence, and some underlying substance that establishes its relevance and guides its interpretation?

It is necessary, the fable teaches us, to better understand what we are dealing with when we reproduce the exterior appearance of things.

Do the paradigmatic behaviours described by the offence definition constitute themselves the wrongful, the unjust, the evil? Or are they only paradigmatic instances, epiphanies of them?

The alternative is perhaps clearer if we think about the consequences: if the behaviour typified and depicted in the offence definition is “per se” the unjust and wrongful, then their occurrence is conclusive. If a thief is caught while stealing at night in our home, the offence, the wrongful, the unjust, the evil is precisely what we see: there is little to discuss when we find ourselves before a furtum manifestum. The offence lies wholly in that appearance. Nothing else needs to be verified. From this perspective, the form, the appearance is a terminal notion, it is all that matters. 

But if the appearance of the prohibited behaviour is not the very essence of the offence but rather a “possible phenomenal manifestation” of the latter, the discussion remains open: we can always doubt that that a specific manifestation of that conduct is a real expression of the wrongful, of the unjust lying at the basis of the prohibition. In short, the description of a type of prohibited behaviour does not yet close the discussion with respect to its occurrence. It does not present a conclusive and inevitable meaning.

In the latter case, every instance of behaviour which apparently corresponds to the type described by the offence definition must always undergo a verification. Is that semblance, that appearance of the offence really a manifestation of the disvalue, the unjust, which lies at the basis of the prohibition and which we wish to counter?

The thief has taken and carried away something belonging to another person. But if you think about it, that object, that thing, is a mere physical portion of reality, hence a shell, a carrier of a more complex and possible meaning, such as an economic value. In some cases, a thing (which belongs to others) has no economic value; it may be indeed only a physical portion of somebody’s estate. “Property belonging to another” might be a single apple, a leaf of a tree, a rusty nail, a bag of trash etc. The definition of an offence – larceny, for example – is centred upon the fact of “taking the property of another”, but as “property” it is merely a physical portion of reality and can sometimes turn out to have no significant economic value. In such cases, the scheme of prohibited behaviour is perfectly fulfilled, but we sense that the substance, the reason justifying punishment, is lacking. 

12. Ab omni specie mala abstìnete vos!; thus says Saint Paul in the most common Latin translation of a famous passage of his.^[26]

In the controversial discussion surrounding this famous moral warning, we find a good expression of the problematic alternative we have just been talking about. Paul speaks of “specie mala”. The Latin text can be translated as: abstain from every “evil form”, from every “evil appearance ^[27]. 

However, if we go from the Latin version of St. Paul’s words to the original, we find that things are expressed differently; the Greek text says: “ἀπὸ παντὸς εἴδους πονηροῦ ἀπέχεσθε” which that can be translated “abstain from every kind of evil”^[28]. The original Greek text uses the genitive “kind of evil” (εἴδους πονηροῦ), making no reference to the idea of “evil appearance”, but rather focusing on “kinds”, “instances” of evil.

So precisely in the contrast between the original Greek and the “misleading” Latin translation we see the emergence of the alternative referred to earlier. From the standpoint of criminal law as well, the use of term “type”, in reference to the typified behaviour portrayed by the offence definition, shows the same disquieting ambiguity: we, too, can imagine the alternative between two possible imperatives.

a) In the first place, we could assume that any offence definition sends the following message, “Abstain from the evil appearances I describe” that is, “Abstain from engaging in this and precisely this bad, wicked, behaviour!” This perspective corresponds to the vision of the Latin text of Paul: abstìnete ab omni specie mala.

b) However, we can interpret the command differently. As in the case of Paul’s original text in Greek, we can indeed depart from the idea that evil is inevitably anchored to the appearances and that, on the contrary, it is impossible to attribute to the represented images of evil an unambiguous and definitive meaning.

Choosing this less formalist perspective, the message is: “Abstain from the kind of evil I describe”, meaning the following: “abstain from this conduct since itcan very likely be qualified as evil, wicked, unjust, wrong.” The command is to abstain from the pictured behaviour, but the assumption is that citizens must do so not because they are conclusive, univocal evil forms, but because they are “kinds of evil,” i.e., behaviours which apparently, allegedly, usually constitute a manifestation of the evil, of the unjust, of the wrongful.

13. If we have led the reader along this path, it is not for the purpose of evoking reminiscences of school days or improvising as exegetes of scriptures. In this translation problem there lies a deep ambiguity about the word “type”, a polysemy, which is linked to a fundamental problem not only in criminal law, but also when it comes to moral judgments.

Continuing a little further along this path, we will arrive at an unusual and, I believe, very fascinating place: a place it might be interesting to see together.

A veritable repressive theory of “bad appearances” may be found in ancient doctrine of the Halakhah, the religious law tradition of Judaism. It is a doctrine called Marit (or Maris) or Marat Ayin^[29] . Marit Ayin literally means “appearance to the eye” (a concept, that of “seeing”, “looking”, “spying” very familiar to anyone who has read this book thus far).

Marit Ayin obliges everyone to abstain from all behaviours which, due to similarity of form, may arouse in an observer the suspicion that a substantial rule of the Halakhah is being violated. In short, we must not create the risk that someone might misunderstand the meaning of our behaviour, causing him confusion and, as a result of the misunderstanding, possible subsequent violations of the Halakhah. For example, if the law (in this specific case, the Halakhah) forbids indelibly marking one’s body with a tattoo, according to Marit Ayin, temporary and henna tattoos will also be prohibited, since it is not easy for an outside observer to distinguish between real and fake tattoos.

There are countless cases discussed with reference to religious rituality or rituals tied to food and hygiene: therefore, if it is forbidden to eat molluscs and crustaceans, it will also be prohibited to eat, in public, surimi-based food(not prohibited) which imitates molluscs and crustaceans, either in its form or its use. If it is forbidden to cook veal in cow’s milk, it will also be forbidden to cook it in almond milk, as the latter does not appear distinguishable – given its colour and visible consistency – from cow’s milk. If a person passing in front of the statue of an idol drops a purse containing money on the ground, he cannot pick it up: anyone observing might think he is bowing before that idol.

In short: according to a certain doctrine, well expressed in the rules of Marit Ayin, irrespective of whether our intentions are good, we should pay very careful attention to what our behaviours appear like and make a point of avoiding the forms and outer appearance of prohibited actions; that is, we must “not cause scandal”. We must not arouse a suspicion in those observing our actions that they are precisely the ones that are stigmatised and prohibited.

It is not easy to understand this viewpoint today. The idea that it is better to avoid “causing scandal” evokes the idea of bigoted conformism; the censure of innocuous behaviours simply because of their wrongful or immoral “form”, “appearance” makes us smile and at times feel due indignation.

We likewise respond to a position of a moral (moralistic?) nature with a hostility of a moral (moralistic?) nature. In the sense that “we are against” it, because our idea of individual freedom and self-determination presupposes a “freedom of form” that is incompatible with bigoted conformism founded on a meaning of forms that is assumed to be univocal and undisputable.

Alongside the moral issue, there is also an epistemological one. The two aspects are interconnected and at times hard to distinguish, but it may be worth examining each in order to better understand why they tend to be confused.

As mentioned, our concern about the stigmatisation of those “false appearances” sometimes makes us lose sight of the other aspect of the question, the epistemological one: how do attribute that meaning to those forms? According to Marit Ayin, the meaning is already determined. It is established by the same normative system: all behaviours having the appearance of a prohibited form are prohibited. And though some may just happen to appear similar (as in the case of Marit Ayin), they still warrant stigmatisation.

The contamination occurs by mimesis; there is no attempt to distinguish the moral significance of two identical (or very similar) appearances. Even when some behaviours, such as henna tattooing, or picking up a purse dropped in front of an idol, are solely “innocent imitations” of prohibited behaviours (indelible tattooing by puncturing the skin, the adoration of idols), they should be likewise stigmatised.

All behaviours having the same appearance have the same meaning. 

14. After this lengthy digression, let us go back to the relationship between the appearance of the offence definition and the “wrongful substance” on which its relevance must be grounded.

At this point, we should have learned something more regarding the ambiguous significance of appearances; and of the semblances, the typified paradigms of facts described by offence definitions.

The paradigms of prohibited behaviour take it for granted that appearance is the backbone of “reality” and that a common epistemological vision and set of values can be based on it. Appearances are so to say “rigid”; they possess a continuous iconic trait: like the tragic mask. The “appearance of facts” portrayed in offence definitions are abstract, rigid, and iconic. 

15. That being said, it is quite possible for a portraited appearance of evil, to be a false appearance of evil. This happens when the appearance is not really linked to the “reality”, to the evil, the unjust, that the law maker had in mind conceiving and shaping the offence definition.

There are cases in which the appearance of a certain behaviour does not correspond to a real substantial disvalue or to the actual production of damage or harm. A good example is offered by the case of the theft of a rusty nail or of a single apple. Here the appearance coincides with the formal (abstract) scheme of theft, but since the stolen item (the rusty nail, the single apple) is of no value, the conduct does not concretely produce any appreciable economic damage. 

Going back to the previous metaphors: the tragic mask – which at first glance had fascinated the fox: oh, quanta species! – is nothing other than a papier-mâché cover: without being worn on the actor’s face, without anyone who can impart life and substance to it, it is nothing but an empty shell: the “tragic persona” has been wholly divorced from whoever had given it life.

16. The arguments we developed take us to a finding. The narrative of offences uses sometimes a “literal”, some other times a “metaphorical” approach to the rendering of evil. Sometimes, offence definitions picture appearances that are “literally” what evil/wrongfulness is about. In other cases, the offence definition pictures a form of behaviour which is a metaphorical rendering what evil, what wrongfulness is about^[30].

The most ancient crimes, but also nowadays traditional offences such as larceny, battery, arson, rape, depict forms of behaviour that are “literally” what evil is about. In these cases, think of the old Roman law crime of “burying a pregnant woman without extracting the dead foetus”, the appearance literally coincides with the evil. The same can be said for other cases of manifest criminality: in the paradigmatic case of furtum manifestum, the conduct of the night-time thief who enters in a private home and is caught in the act of stealing is not simply a possible example of thievery wrongfulness. That conduct is, “per se” and without reasonable exceptions, the evil the prohibition wants to prevent. In these cases, the narrative is realistic and literal: whatever is mirrored by the definition, for example the trespassory taking of a piece of property which is located within the space controlled by another individual, has a univocal and literal meaning. 

As in the rules of purity, an immediate and conclusive attribution of meaning is possible. Occurrence of the behaviour iconically pictured by the offence definition, it all that matters; that behaviour doesn’t stand for something else; it is not a sign that remands to a deeper concept of evil or wrongfulness. 

While representation of “literal” wrongdoing was common in the archaic criminal law, dominated by the pattern of manifest criminality, and while this approach is still important in the structure of traditional offences such as larceny, arson, battery, rape and so on, with the evolution of society typification has become a more complex task. It became more and more difficult to define crimes assessing conduct in specific forms of conduct to be taken literally. 

As societies evolved, causation of significant harm became the very gist of criminalisation. And causation of harm, think of aggression to assets, to health, to the wellbeing of society, can take incredibly different forms. The narrative of offences cannot easily identify with literal forms of wrongdoing capable to univocally express what evil/wrongfulness is about in each area of social control. Rather, typification must conceive and define possible ways of rendering of the conflict between human actions and the harm to protected interests. The task of writing new offence requires creativity: it is not possible anymore to simply mirror the appearance of reality. As in fictional tales, as in art, it is necessary to create metaphors. The description of the offence should try to render, with the cognitive instrument of a metaphor, an idea, a possible image of evil/wrongfulness.

This approach is not different from that of painters or sculptors, who, having to render abstract concepts, moral values, or celebrated episodes of the sacred history, identify forms and signs that, in their view, express the very meaning of what cannot be represented literally and mimetically.

The rendering is metaphorical since it “stands for” something else. It stands for what is hard to depict directly and conclusively. 

17. Legislation concerning sex offences is a good example of the limits of a “literal”, appearances oriented, approach to offence rendering. 

In the setting of sexual offences, evil/wrongfulness is about harm to the sexual autonomy of the victim. However, there are many possible ways of rendering the wrongful conflict between a human conduct and such protected interest. One option is to draft a definition, keeping the narrative focus on the modality of action: therefore, a sexual aggression is defined as a violent and threatening conduct which forces the victim to have an unwanted sexual intercourse^[31]. This approach focuses on the appearances and renders a particular image of the prohibited sexual interaction. Within this approach, the narrative ignores the relational, interpersonal, component of the criminal transaction and focuses on the perpetrator’s conduct. However, by disregarding lack of consent as an explicit element of the offence, this approach places on the victim a kind of “duty” to resist to the unsolicited approach. The victim is asked to actively show dissent. Requiring violence and threat, law makers select a particular way of rendering wrongfulness, assuming that a violent or threatening conduct is essential to depict a relevant aggression to sexual autonomy. Based on outdated, discriminatory cultural stereotypes this approach is not easily acceptable today. 

A different rendering approach focus on non-consent of the victim instead than on violent rapes^[32]. Focusing on consent, means focusing on the interpersonal relation. This choice implies to put the victim’s autonomy in a central position, stressing the direct conflict between the perpetrator’s conduct and victim’s self-determination concerning whether to have or to have not a sexual intercourse. However, even in this perspective, one may argue that the perpetrator starts acting wrongfully only when the victim shows in some way her non-consent. This means that until the appearance of non-consent comes out, the perpetrator acts lawfully: even touching the victim’s intimate parts. Hence, a more appropriate rendering of the offence may require not only dissent, but also the preliminary expression of some positive or cooperative consent. A consent that must be communicated before any sexual interaction takes place. Following this perspective, no physical contact with intimate parts is possible, unless consent has been previously expressed.

18. In other settings, the rendering of wrongfulness can be even more problematic, so to solicit different kind of metaphors and different narrative techniques. Low-definition narrative or abstract narrative can be more appropriate. In these cases, the rendering is less figurative, less realistic: it doesn’t mirror the appearance of the external world, but recurs to normative, psychological, immaterial, or shapeless notions. The picture is not iconic, but partially o totally symbolic, digital. In other words, meaning cannot be acquired recurring to resemblance, establishing an analogy between the shape of behaviour pictured in the definition and a shape of behaviour present in the reality of the external world. Rather, the definition requires a decoding key. 

A good example is offered by definitions concerning fraud offences. Section 2 of the English Fraud Act 2006 defines Fraud by false representation stating that: “(1)A person is in breach of this section if he – (a)dishonestly makes a false representation, and (b)intends, by making the representation – (i)to make a gain for himself or another, or (ii)to cause loss to another or to expose another to a risk of loss. (2)A representation is false if – (a) it is untrue or misleading, and (b) the person making it knows that it is, or might be, untrue or misleading. (3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of – [….]”.

In these cases, the definition is discrete, not continuous: it does not mirror the traits of a figure which is morphologically imaginable as a “per se” meaningful shape in the external world. Rather, the narrative enumerates a discrete series of elements. Their meanings must be deciphered and then linked and summed up, so to lead to an assessment about the existence of the crime.

19. Focusing on the non-literal, possibly metaphorical, style of the offence narrative may have some fruitful feedbacks. 

First, it makes us more aware of the selective and evaluative nature of the offence rendering. The narrative of offences shows a possible way of telling and picturing conflicts with protected interests. Definitions do not mirror a behaviour that has already a clear and univocal meaning but picture a possible vision of wrongfulness. This vision is conditioned by many factors: by the appraisal and balance of values, of interests at stake; by the narrative style adopted the reason why literal, realistic, iconographic, and literal narrative is recessive while metaphoric definitions are growing in number, is that, in contemporary societies, picturing literal wrongfulness has become very difficult. As we noted several times, it has become harder and harder to identify specific forms of wrongdoing capable to univocally express wrongfulness. 

There is also another interesting aspect concerning the narrative and the metaphors used to depict wrongfulness. As we noted at the beginning of the paper, offence definitions tell only a part of the story that ends with ascription of criminal responsibility. Definitions render a partial picture: a picture limited to the inculpatory elements of liability; the rest of the tale is scattered throughout the entire legal system. Indeed, even when the prohibited conduct has been carried out, a defence may be present, for example a justification like self-defence. In other words, the rendering of evil/wrongfulness, depicted by the offence narrative, is not final. It is one preliminary way to qualify what happened. As in Akira Kurosawa’s movie Roshomon^[33], there are other possible ways to judge appearances. The offence narrative is defeasible, and it can be contradicted by another narrative and by other metaphors, such as those that try to express what a legal defence is about. 

Reflecting on the appearance of criminal offences drives our attention of this aspect of the criminal law, making us wonder why offence definitions narrates only a partial episode of the articulated tale of criminal liability. 

The question is whether it would be advisable to avoid fragmentation and try to include everything (inculpatory and disculpatory elements) within the frame of the offence definition. This topic cannot be developed here, but what an analysis of narrative makes clear is that writing the comprehensive tale into the offence definition would not be easy. It would not be easy to comprise in a single story, in a single picture, all conditions that make harm relevant and impermissible. Permissibility, lawfulness, depends on a series of factors, which involve the entire legal system. Causing death, injuries, an economic loss can be lawful, for example because a general justification applies. 

The fact is that legal narrative is understandable and effective when the tale is homogenous, coherent, and consistent. Offence definitions cannot follow the narrative model of James Joyce’s Finnegans Wake. They should keep their capacity to picture a continuous iconographic image of what wrong is about. They should not confuse the reader with rhapsodic prose, streams of (legislative) consciousness, sudden changes of subject, digression, or by considering all possible variations of the story. The tale told by the offence definition should include only narration of facts and circumstances with are usually and normally involved in the commission of the prohibited action, letting aside exceptional or marginal cases, like those where a justification applies. 

The issue of consent in sexual offences is again a good example. Even when the crime is defined in terms of a forcible rape, consent can be an issue and it would be advisable to talk about it in the offence definition. It is indeed an issue which is central part of the story. On the contrary, the narrative of the offence should not cover digressions about exceptional circumstances or superseding and unlikely events such as those that exculpate in case of mistake, duress, or insanity. These are circumstances which almost never occur in the ordinary development of the crime. Including these exceptional circumstances in the definition could affect the coherence of the narrative and the production of a meaningful metaphor of wrongfulness. These exceptional elements should be necessarily placed outside of the legislative tale, opening chapters of the narrative, and choosing other metaphors to tell why the apparently wrongful conduct is indeed a lawful or an excusable one.

Footnotes

^[1] For further discussion of many themes touched upon in this essay, and a more detailed bibliography, I refer to my book Fantastic Voyage. The book is available in Italian (M. Papa, Fantastic Voyage. Attraverso la specialità del diritto penale, 2^nd ed., Giappichelli, Turin, 2019), in French (Fantastic Voyage. Un pénaliste au pays du mal, IRJS, Paris, 2020) and Spanish (Fantastic Voyage, A través de la especialidad del derecho penal, Tirant Lo Blanch, Valencia, 2021). A Rumanian translation of the book, prepared by prof. Ioana Paşca (University of Timisoara) will be published in the coming months. In the present essay, I will quote the French edition. 

^[2] “Offense definition” is probably the most effective way of naming what, in continental criminal law doctrine, is called “Tatbestand”, “tipo penal” or “fattispecie incriminatrice”: these terms refer to the type of fact described by the legal provision of a specific crime. Terminological options different from “offense definition” have been considered before making our choice in this paper. “Paradigm of the offense” or “Type of fact” get probably closer to Tatbestand and to the other expressions. However, since they are not commonly used in English legal literature, they would probably result obscure and not immediately understandable. An “offense definition” usually includes “conduct”, “result”, other modalities of the prohibited transaction, and sometimes mens rea elements. I’m aware that “offense definition” does not completely express the significance of the mentioned terms, a significance which is indeed extremely rich.

^[3] M. Papa, Fantastic Voyage, op. cit., pp. 44 ss. See also, M. Papa, The Offense Definition as a Screenplay of Evil: The Rise and Fall of Visual Criminal Law, in Catòlica Law Review 2020, vol. IV nr. 3, pp. 145-174.

^[4] Throughout this essay I will use the concepts of evil, wrongful, and unjust in a fungible way. Beyond the known differences, what these concepts have in common is the reference to an indefinite world of negative values.

^[5] Cf. R. Perkins, R. Boyce, Criminal Law, 3^rd ed., Foundation Press, New York, 1982, p. 246.

^[6] Cf. R. Perkins, R. Boyce, Criminal Law, op. cit., p. 292.

^[7] California Penal Code, Title 8, Ch. 4, sect. 211.

^[8] California Penal Code, Title 13, Ch. 1, sect. 452.

^[9] See M. Papa, The Offense Definition as a Screenplay of Evil: The Rise and Fall of Visual Criminal Law, op. cit., pp. 149 ss.

^[10] M. Papa, Fantastic Voyage. Un pénaliste au pays du mal, op. cit., p. 44 ss.

^[11] In rhetoric, the term “hypotyposis” connotes a vivid description of a scene or an event, as though it were present before the eyes of the audience. See M. Papa, The Offense Definition as a Screenplay of Evil: The Rise and Fall of Visual Criminal Law, op. cit., p. 152. 

^[12] See J. Damhoudere, Praxis Rerum Criminalium, reprint of 1601 edition ed. (Clark, New Jersey: The Lawbook Exchange, LTD., 2005).

^[13] Especially in legal systems where a criminal code is in force, offence definitions are clustered in a section called the “the special part”. The adjective “special” is used to distinguish the “special part”, which contains the list of offences, from the “general” part, which contains general principles and rules concerning liability and imputation. However, “special” is not only the opposite of “general”; indeed, “special” is also, per se, a very revealing term, since its Latin etymology remands to the verb spicio (or specio) which means: to look at, to see. The same root that generates words like “spy”, “spectacle”, “speculum”. So, we can note that the “special part” of the Criminal law is “special” also because it is “visual”: offences definitions are like pictures at an exhibition, views on iconographic paradigms of wrongdoing. I developed this analysis in M. Papa, Fantastic Voyage. op. cit., p. 37 ss.

^[14] Maybe tort law in the Anglo-American legal tradition has similar features, as in the case of torts of trespass, assault, or battery. However, in most legal systems tort liability has a “shapeless”, nonvisual, definition.

^[15] Reference to the concept of Typus has been particularly developed in German criminal law scholarship. See W. Hassemer, Tatbestand Und Typus. Untersuchungen Zur Strafrechtlichen Hermeneutic (Köln-berlin-Bonn-München: Carl Heymanns Verlag KG, 1968). Terms like Tipo, tipificación, tipicità are common also in Spanish and Italian Criminal law literature. For a deeper analysis and further references, M. Papa, Fantastic Voyage, op. cit., pp. 49 ss.

^[16] G.P. Fletcher, Rethinking Criminal Law (1978) (reprint Oxford: Oxford University Press, USA, 2000), pp. 115-16. According to Fletcher, three general patterns of liability dominate the history of the criminal law. The “pattern of manifest criminality” requires “the commission of the offence be objectively discernible at the time it occurs. The assumption is that a neutral third-party observer could recognize the activity as criminal even if he had no special knowledge about the offender’s intention”, idem, at p. 116. Two important features follow the distinguishing mark of manifest liability: the crime develops as a product of community experience rather than being imposed as an act of legislative will; intent has a subsidiary position in the analysis of liability, idem, at p. 117. The other two patterns are that of “subjective criminality, (idem, at pp. 166 ss.) and the pattern of harmful consequences (idem, at 235 ss.). On Fletcher’s theory of manifest criminality see, D. W. Denno, When Two Become One: Views on Fletcher’s ‘Two Patterns of Criminality, in Tulsa L. Rev. 781 (2004) 39 (2004), pp. 781-801.

^[17] See again M. Papa, Fantastic Voyage, op. cit., pp. 253 ss.

^[18] P.H. Robinson, A Functional Analysis of Criminal Law, in Northwestern University Law Review 88 (1994), pp. 857 ss., ID, Structuring Criminal Codes to Perform Their Function, in Buffalo Criminal Law Review 4, no. 1 (April 2000).

^[19] P.H. Robinson, P.D. Greene, N.R. Goldstein, Making Criminal Codes Functional: A Code of Conduct and a Code of Adjudication, in The Journal of Criminal Law and Criminology(1973-) 86, no. 2 (1996).

^[20] See, for example, the detailed narrative of art. 9 of the code: “ If any one lose an article, and find it in the possession of another: if the person in whose possession the thing is found say ‘A merchant sold it to me, I paid for it before witnesses,’ and if the owner of the thing say, ‘I will bring witnesses who know my property,’ then shall the purchaser bring the merchant who sold it to him, and the witnesses before whom he bought it, and the owner shall bring witnesses who can identify his property. The judge shall examine their testimony – both of the witnesses before whom the price was paid, and of the witnesses who identify the lost article on oath. The merchant is then proved to be a thief and shall be put to death. The owner of the lost article receives his property, and he who bought it receives the money he paid from the estate of the merchant”. The Hammurabi code is easily available online, for example at: http://avalon.law.yale.edu/ancient/hamframe.asp. 

^[21] See J. F. Stephen, A History of the Criminal Law of England, Macmillan and Co., London, 1883, II, pp. 196-220.

^[22] The Constitutio Criminalis Carolina dates 1530. It is recognized as the first body of German criminal law. See J. H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France: England, Germany, France, MA: Harvard University Press, Cambridge, 1974, pp.168-74

^[23] I developed this analysis in M. Papa, Fantastic Voyage, op. cit., pp. 82 ss.

^[24] M. Papa, Fantastic Voyage, op. cit., pp. 109 ss.

^[25] “What a sight, but … he has no brains inside!”.

^[26] The phrase appears in the first letter to the Thessalonians, 5.22. For a deeper analysis, M. Papa, Fantastic Voyage, op. cit., pp. 111 ss.

^[27] The Latin translation dates to the Vulgate of St. Jerome, that is, to the end of the 4th century A.D.

^[28] Consulted in the edition, San Paolo, Le lettere. Testo a fronte, Turin, 1990. The passage quoted (Thessalonians, 5.22) is at pp. 220-221.

^[29] References in M. Papa, Fantastic Voyage, op. cit., pp. 116 ss.

^[30] See M. Papa, The Offense Definition as a Screenplay of Evil: The Rise and Fall of Visual Criminal Law, op. cit., pp. 153 ss; idem, Fantastic Voyage, op. cit., pp. 255 ss.

^[31] An emblematic example of this technique was offered by the 1930 Italian Criminal Code. According to, now repealed, art. 519: “Whoever, by violence or threats, compels another to have carnal intercourse shall be punished by imprisonment from three to ten years”.

^[32] This is the case of the English definition of rape. According to sect. 1 of the Sexual Offences Act 2013: “1-(1) A person (A) commits an offence if – (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis (b) B does not consent to the penetration, and […]”.

^[33] Rashomon is a 1950 Japanese film directed by Akira Kurosawa. The film is known for a plot device where different eyewitnesses provide alternative and contradictory versions of the same incident.