Legal classification of intoxicated offenses
The term ‘Rauschtat’ (intoxicated offense) refers to the commission of a criminal act under German criminal law while in a state of significant mental disturbance caused by alcohol or other intoxicating substances. This state may result in the offender being significantly limited in their criminal responsibility, or even deemed not responsible, within the meaning of Sections 20 and 21 of the German Criminal Code (StGB).
Below, the legal aspects, conditions, legal consequences, and special regulations relating to intoxicated offenses are structured and explained in detail.
Definition and statutory requirements
Explanation of the term
An intoxicated offense refers to the completion of a criminal offense by a person who, due to the consumption of intoxicating substances—especially alcohol, but also narcotics or medication—is in a state of significant mental disturbance at the time of the act. The decisive factor is that, depending on the extent of the impairment, the offender is either not criminally responsible at all or only to a limited extent.
Relevant statutes
The German Criminal Code (StGB) regulates the consequences of an intoxicated offense, particularly in Sections 20 and 21 regarding (criminal) responsibility, and in Section 323a (“complete intoxication”) as a subsidiary offense. Supplementary provisions are contained in the Juvenile Court Act (JGG) for adolescents and the Narcotics Act (BtMG) concerning intoxication by narcotics.
Effect on criminal responsibility
Lack of criminal responsibility (§ 20 StGB)
Anyone who commits a criminal offense in a state of complete loss of control or insight is, according to Section 20 StGB, not criminally responsible. A prerequisite is that the intoxication causes a biological-psychological exceptional state, eliminating the ability to perceive the wrongfulness or act according to such perception.
Diminished criminal responsibility (§ 21 StGB)
If, at the time of the offense, a person’s ability to control their actions is substantially but not completely impaired, there is diminished criminal responsibility (§ 21 StGB). In such cases, the court may mitigate the sentence. This requires a careful case-by-case evaluation, possibly including a forensic-psychiatric assessment.
Criminal consequences and special aspects
Intentional and negligent induction of intoxicated state
An intoxicated offense is especially relevant under criminal law when the offender has intentionally or negligently induced the state of intoxication. The case law distinguishes between self-induced and non-self-induced states of intoxication. Anyone who foreseeably causes a criminally relevant state cannot rely on a lack of criminal responsibility.
Subsidiary offense: Complete intoxication (§ 323a StGB)
With Section 323a StGB, the legislator created so-called ‘complete intoxication’ as a subsidiary offense. This provision is intended to close gaps in criminal liability that arise when a person, due to lack of criminal responsibility according to Section 20 StGB, commits an unlawful act but cannot be punished for the actual offense. The prerequisites for liability under Section 323a StGB are:
- Inducing a state of intoxication
- Committing a legally prohibited act in the state of intoxication
- Lack of criminal responsibility due to the state of intoxication
The penalty is based on the penalty threatened for the offense that would have been realized under full criminal responsibility.
Attempt, participation, and negligence
Even in cases of intoxicated offenses, attempt, incitement, aiding and abetting, and negligent commission may be relevant on a case-by-case basis. Decisive are the degree of control and the respective subjective and objective elements of the offense.
Conflicts and distinctions
Distinction from ‘actio libera in causa’
The ‘actio libera in causa’ (action free in its cause) must be distinguished from the classic intoxicated offense. In ‘actio libera in causa,’ transferring accountability to the period before the onset of intoxication forms the basis for liability. For example, anyone who intentionally becomes intoxicated in order to later commit a crime while not criminally responsible can be punished for the main offense under the general rules, rather than just under Section 323a StGB.
Conflict with other intoxicated offense provisions
Not every intoxicated offense necessarily results in impunity. The overlap between liability for the principal offense, taking into account Sections 20, 21 StGB and Section 323a StGB, must be carefully examined in each individual case.
Intoxication and civil law consequences
Capacity for delictual liability
In civil law, a state of intoxication that results in a loss of the ability to understand the injustice of one’s actions can also affect delictual capacity (§ 827 BGB) and thus liability for damages. Anyone who culpably induces an intoxicated state and thereby becomes incapable of liability is still liable for damages under § 827 sentence 2 BGB.
Prevention, monitoring, and societal relevance
The legislator sees consistent application and interpretation of the laws on intoxicated offenses as a key contribution to ensuring public safety and deterrence against reckless self-endangerment with potentially hazardous consequences.
Summary
The intoxicated offense is a comprehensive and multifaceted legal concept regulating criminal liability in connection with states of intoxication. While the degree of criminal responsibility must be determined on a case-by-case basis with reference to Sections 20 and 21 StGB, Section 323a StGB establishes a subsidiary offense for self-induced intoxication. The criminal and civil consequences of an intoxicated offense are clearly defined and serve both specific and general prevention purposes.
Literature references:
- Fischer, StGB Commentary on §§ 20, 21, 323a StGB
- LK-StGB, loose-leaf commentary, on §§ 20 ff., 323a StGB
- BGHSt 43, 66 – foundational decision on § 323a StGB
References:
Due to its clear statutory formulation, the intoxicated offense is now a central concept in the criminal assessment of offenses associated with alcohol consumption or ingestion of other intoxicating substances.
Frequently Asked Questions
How does an intoxicated offense differ from an act committed with diminished criminal responsibility?
In German criminal law, the intoxicated offense is a special case where the offender commits a criminal act under the influence of intoxication caused by alcohol or other intoxicating substances (§ 323a StGB). It is particularly relevant that the offender becomes not responsible (usually §§ 20, 21 StGB) because they induced intoxication. In contrast, the state of diminished criminal responsibility (§ 21 StGB) refers to a situation in which the perpetrator suffers a significant impairment of control or insight but is not fully legally irresponsible. In the case of an intoxicated offense, liability under § 323a StGB (‘complete intoxication’) is regularly possible if the offender intentionally or negligently intoxicates themselves and, in this state, commits a predicate offense for which subjective intent cannot be established. In contrast, diminished responsibility typically allows for prosecution for the intentionally committed offense itself and also for sentencing mitigation.
What are the requirements for criminal liability under § 323a StGB (‘complete intoxication’)?
For criminal liability according to § 323a StGB, several requirements must be met: First, the offender must have intoxicated themselves by consuming intoxicating substances. It is not necessary for the offender to have intended the exact degree of intoxication; negligence is sufficient. Second, while in the state of intoxication, an unlawful act must have been committed that is punishable by law (the ‘predicate offense’). The decisive factor here is that, due to intoxication, the offender lacks criminal responsibility in the sense of §§ 20, 21 StGB, so they cannot be punished for the predicate offense itself. Third, there must be a temporal and causal connection between the intoxication and the commission of the act. The offense must be objectively punishable and not merely in the perpetrator’s imagination. Subjectively, it is sufficient that the offender caused their intoxication intentionally or negligently.
What is the legal situation if someone voluntarily intoxicates themselves?
A person who voluntarily intoxicates themselves and commits a crime in this state may be punished under § 323a StGB (‘complete intoxication’), provided that an unlawful act was committed for which the offender cannot be held criminally responsible due to intoxication. This provision mainly aims to close gaps in criminal liability: had the offender not become intoxicated, they could be liable—but due to self-induced intoxication, they lack culpability, so § 323a StGB functions as a catch-all clause. It is also relevant that liability under § 323a StGB is excluded if the intoxication was involuntary, for example, due to coercion or deception.
What is the significance of the so-called ‘predicate offense’ in connection with intoxicated offenses?
The so-called ‘predicate offense’ is the crime committed during the state of intoxication. It is decisive for liability under § 323a StGB, since § 323a requires that a punishable act (the predicate offense) be committed during intoxication. However, it is not possible to punish the offender for the predicate offense itself, as they are not legally responsible; therefore, § 323a serves as a replacement or subsidiary offense. The predicate offense must actually be committed, but subjective elements such as intent are only required insofar as they relate to causing the intoxication. The severity of the sanction for the intoxicated offense is guided by the sentencing range of the predicate offense, but may not exceed it.
Are there exceptions where, despite intoxication, there is no liability under § 323a StGB?
Liability under § 323a StGB does not apply if the offender was involuntarily intoxicated—for example, due to an unexpected reaction to medication or due to the secret administration of the intoxicating substance. In addition, § 323a StGB does not apply where there are special grounds for exclusion of guilt or justification, such as necessity or self-defense. Liability is also excluded if the act committed during intoxication is not punishable (e.g., merely a regulatory offense). Finally, it should be noted that an offense is considered an intoxicated offense under § 323a StGB only if, at the time of the predicate offense, the perpetrator, as a result of intoxication, is excluded from or significantly limited in criminal responsibility under §§ 20, 21 StGB.
How does an intoxicated offense affect sentencing?
When sentencing for an intoxicated offense under § 323a StGB, it should be noted that the applicable sentencing range is based on that of the predicate offense, but must not exceed its maximum. In determining the sentence, the court particularly considers the degree of personal responsibility, the nature and severity of the predicate offense, and the circumstances of the intoxication. Mitigating factors may include the offender’s inability to foresee the consequences of their behavior while intoxicated, while intentional induction of intoxication or particular dangerousness can be considered aggravating.
Do victims of intoxicated offenses have special rights in criminal proceedings?
Victims of intoxicated offenses have, in principle, the same rights as victims of other crimes, since the predicate offense was objectively committed by the offender, even if the required subjective elements were missing. They may participate as joint plaintiffs in the proceedings, assert claims for damages and compensation for pain and suffering, and have the right to victim support and counseling services. The fact that the offender can only be punished under § 323a StGB due to their intoxicated state, and not for the predicate offense itself, does not affect civil law claims against the offender. In individual cases, residual fault on the part of the offender may still limit liability, especially if there was no negligence involved.
