Criminal Attempts and dolus eventualis: A Critique of some Recent Decisions by the Chilean Supreme Court

Abstract

We criticize a noticeable line of precedent in the ruling of the Chilean Supreme Court, manifested in a recent decision. The court’s stance concerning both the nature of the mens rea form known as dolus and the problem of its judicial proof is considered before we address its claim of the alleged incompatibility between the structure of criminal attempt and dolus eventualis. Regarding the former issue, the drawbacks of the court’s psychologistic understanding of dolus are highlighted, for which we contrast it with a weakly ascriptivistic conception. Regarding the latter point, it is shown that the argument presented by the court for asserting the insufficiency of dolus eventualis as responsibility criterion for an attempted offense rests upon an incorrect reading of article 7.3 of the Chilean Penal Code.