Term and Definition of the Putative Offense
Ein Putative Offense (from Lat. putare – “to believe, to suppose”) denotes in legal scholarship a scenario in which a person mistakenly assumes they are committing a criminal act, while objectively no criminal behavior is present. It is thus an ‘imagined offense.’ The putative offense is especially distinguished from so-called factual mistake and other forms of error in criminal law.
At the core of the putative offense is a mistake regarding the actual elements of a criminal offense. The person imagines circumstances that—if they truly existed—would make the act appear unlawful and punishable, but in reality those circumstances are absent.
Distinction from related forms of error
Putative Offense vs. Ineffective Attempt
Das Putative Offense is to be distinguished from the ineffective attempt. While in the case of an ineffective attempt the perpetrator commits an act that, at least in their opinion, could lead to the fulfillment of a criminal offense, this attempt is ineffective for legal or factual reasons (e.g., shooting at a dummy under the assumption it is a human being). In contrast, with a putative offense, criminal liability is already excluded because objectively no offense has occurred.
Putative Offense vs. Delusional Offense
A common misconception is to equate Putative Offense und delusional offense. In the case of a delusional offense, the acting person wrongly believes that their action violates an existing criminal law, even though the act is in fact not punishable (for instance, because they assume a certain action is prohibited). In contrast, with a putative offense, a person mistakenly believes that the object or circumstance of the act exists, though this is objectively not the case.
Requirements and Legal Classification
Subjective and Objective Components
A putative offense requires that the actor subjectively has the intent to commit a crime and behaves accordingly, but objectively the offense is not realized. It is crucial for legal assessment that the punishable act exists only in the mind of the actor—meaning no actual legal interest is violated or endangered.
Example for Illustration
A person mistakenly takes a bar of soap for an explosive and tries to steal it, believing that they are committing theft of explosives. Objectively, however, there is no theft of a dangerous object, so no criminal offense is fulfilled.
Criminal Liability in the Case of a Putative Offense
Most legal systems, especially German criminal law, generally do notpunish a putative offense. Since objectively no criminal offense is fulfilled, the element of the offense required as a prerequisite for a criminal prosecution is already missing. Accordingly, the necessary act constituting the offense is lacking.
Exceptions exist only if the conduct fulfills other criminal offenses (e.g., negligent endangerment, impersonation of a public official) or the act itself constitutes an independent wrongful act.
Putative Offense under German Criminal Law
Statutory Regulation
German criminal law contains no explicit provision regarding the putative offense. The principle of “nulla poena sine lege” (no penalty without law) requires that only acts in which the elements of a penal law are objectively fulfilled can be punished (§ 1 StGB). Therefore, the putative offense remains unpunished since the act exists only in the actor’s imagination.
Legal Consequences and Significance
The putative offense leads neither to liability for attempt nor for preparatory acts, as an endangered or injured legal interest is objectively not present. Administrative offenses typically do not apply either unless the conduct violates the law independently of the imagined crime.
The Issue of Error
The putative offense illustrates the significance of the subjective element in criminal law, particularly in connection with the distinction between intent and mistake. It also highlights the limits of criminal responsibility in actions without any infringement of legal interests.
Putative Offense and Criminal Attempt
Beginning of Attempt in the Context of a Putative Offense
A punishable attempt under § 22 StGB exists only if the offender begins to directly commit a criminal offense. This presupposes that the objective elements could possiblybe fulfilled in the first place. In the case of a putative offense, there is, however, no offense that could be realized, so the threshold for criminal liability for attempt is not crossed.
Case Law
The highest courts have repeatedly decided that criminal liability for attempt requires a real object of the offense and a real possibility of fulfilling the statutory elements. For a putative offense, this is excluded.
Significance of the Putative Offense in Other Areas of Law
Administrative and Civil Law
In both civil and administrative law, the putative offense generally has no independent significance, as it is primarily discussed within the framework of criminal law. Nevertheless, legal considerations from criminal law may also play a role in other areas of law, for example, if the assumption of a legal violation affects contracts, declarations of intent, or administrative decisions.
Summary
The putative offense is a central concept in the doctrine of mistake in criminal law. It refers to cases where an actor mistakenly believes they are committing a criminal offense, even though objectively no crime has been committed. Such a mistaken assumption is generally not sufficient for criminal liability. The putative offense demonstrates criminal law’s dependence on objective legal elements and the significance of factual prerequisites for criminal responsibility. A clear distinction from related forms of mistake, such as the ineffective attempt and delusional offense, is essential for legal assessment.
Frequently Asked Questions
What are the legal consequences if a putative offense exists?
In the case of a putative offense, the perpetrator mistakenly believed that they were committing a punishable act, even though their conduct does not actually fall within the scope of a criminal offense. Legally, this means that, due to the absence of an act fulfilling the elements of the offense, there is no criminal liability. The perpetrator cannot be prosecuted for a completed or attempted offense due to the lack of wrongdoing. Criminal liability for attempt is also precluded since the objective elements are completely absent. However, other offenses such as impersonation of a public official (§ 132 StGB) or regulatory offenses may be fulfilled if the behavior violates an independent norm of wrongdoing.
How does the putative offense differ from the ineffective attempt?
The key distinguishing feature between a putative offense and an ineffective attempt lies in the objective elements: in the case of an ineffective attempt, the perpetrator sets out to fulfill the elements of an offense but fails due to unsuitable means or impossible circumstances (e.g., attempting to steal an empty wallet). In contrast, with a putative offense, the external element of wrongdoing is already absent; there is objectively no criminal conduct. The punishability of the ineffective attempt is expressly regulated (§ 23 (3) StGB), whereas a putative offense generally remains unpunished.
Can a mistake regarding the existence of a justification lead to a putative offense?
A mistake about the existence of a justification, for example the erroneous assumption of self-defense (putative self-defense), must be distinguished from the putative offense. While in the case of a putative offense the perpetrator believes they are acting wrongfully when in reality no offense exists, in the case of a mistake regarding the grounds of justification, the perpetrator mistakenly assumes they are justified, although the prerequisites for justification are objectively lacking. This type of mistake is addressed under § 16 StGB and—depending on the case—affects intent, whereas in a putative offense there is no conduct fulfilling the elements of an offense in the first place.
What is the significance of the putative offense in the area of negligence?
The putative offense is generally irrelevant regarding negligence, as intentional conduct relating to the wrongdoing of the act is required. In negligent offenses, the perpetrator is already unaware of committing a criminal act at all, so mistakes about a prohibition or a danger are relevant only for culpability, but do not qualify as a putative offense. An error in the context of a negligent offense can at most be relevant to culpability, but does not lead to a punishable attempt.
What are the effects of a putative offense on the criminal responsibility of a minor under the JGG?
Even in juvenile criminal law under the Juvenile Court Act (JGG), if a putative offense exists, no criminal sanction can be imposed, since the punishable conduct itself is missing. The educational approach of the JGG applies only if an actual offense has been committed. However, the behavior of the young person corresponding to a putative offense can still be addressed and accompanied pedagogically as part of educational measures (without punishment in the strict sense) in order to prevent future legal errors.
Can civil or disciplinary consequences arise despite a putative offense?
Although in the criminal sense no sanctions are to be expected in the case of a putative offense, civil or disciplinary consequences may nevertheless occur under certain circumstances. In public service or employment law in particular, the perpetrator’s conduct (e.g., a mistake about a prohibition in a professional context) may lead to a disciplinary warning or other disciplinary measures, especially if the conduct violates internal regulations or duties of care, even if no criminal offense was committed. Civil liability for damages may arise if the behavior (regardless of criminal liability) causes harm to a third party.
Is the putative offense covered in legal education, and if so, why?
The putative offense is a frequent topic in legal education because it exemplifies fundamental questions of criminal law dogmatics, particularly regarding the elements of the offense, subjective elements, and error in criminal law. Distinguishing between related forms of mistake (mistake regarding the grounds of justification, mistake of prohibition, legal error, ineffective attempt) is vital for understanding criminal liability. The boundaries of criminal liability and the function of the legal elements are vividly conveyed, which is why the topic regularly appears in written and examination tests.
