Foreseeability and Prior Fault: Examining the Assessment Framework for Intoxication, Blame and Criminal Responsibility

Abstract

Prior fault in cases of intoxication prevents any mental impairments stemming from the intoxication from having exculpatory or mitigatory effects. This article critically examines the pitfalls of using ‘foreseeability’ as a main requirement to establish prior fault in such cases in the Netherlands, with brief comparative references to Polish law. The appropriateness of foreseeability as a criterion strongly depends on the approach taken. When foreseeability is interpreted in an abstract manner, the ability to adequately differentiate between situations of prior fault is greatly reduced. Specifically for intoxication combined with addiction or other mental disorders, this approach to foreseeability may cause overriminalization. The article provides suggestions for a more appropriate assessment framework, which could include a more concrete foreseeability requirement and a volitional criterion.