Abstract

Traditionally in Polish criminal legislation, intentionality and unintentionality have always been the two basic forms (degrees) of mens rea in an offence or crime. The normative boundary between them, which is of great practical importance, has been extremely stable; successive legislative acts since the Penal Code of 1932 have always set it at the same level. A project carried out at the Ministry of Justice in 2016-2017 formulated a set of principles for a very significant broadening of the scope of intentionality. This was to be achieved by adding a draft Article 9 § 1a to the Penal Code to introduce a new, third form of intent (in addition to the existing ones, dolus directus and dolus eventualis). This paper presents a critical review of the proposal to significantly reduce the requirements applicable to intentionality and discusses the practical consequences that implementing such an arrangement would entail. It considers the details of the widened scope of the new proposal for intent, indicating the categories of cases in which its introduction would transform offences now considered unintentional into intentional offences. In evaluating the proposed extension of the scope of intentionality, this paper identifies its fundamental flaw: the current boundary between intentionality and unintentionality gives a good reflection of the ethically and morally significant difference between what is defined as acting with (sufficient) discernment and what is considered acting without (due) discernment. There are no criminal and political, let alone ethical and axiological reasons to justify the abolition of the existing relationship between intentionality and unintentionality, which is what would be caused by an extension of the scope of intentionality provided for in the draf Article 9 § 1a proposed as an amendment to the Polish Penal Code.