Treachery

Julius Caesar's death at the hands of Brutus, a classic example of a heinous murder

In criminal law, treachery is an aggravating circumstance of the criminal responsibility of the agent, generally contemplated in crimes against persons. According to the old Spanish formula, also contemplated by Italian jurisprudence, it is understood as the commission of a crime "by treason and on insurance." It is the use of means, ways or forms in the execution of the fact that tend to ensure the crime, without the author risking actions that come from the defense that the passive subject or a third party could do.

We can find its remote origin in the Spanish, Italian (omicide with agguato) and French (guet-apens) legal systems.

In the classic criminal doctrine, the murder of Julius Caesar at the hands of Brutus is exposed as an example of treachery, who knew that the close friendship between the two would prevent the dictator from distrusting him.

Assumptions of treachery

• Proditional crime: The criminal act precedes acechanza (watch, wait cautiously for some purpose) or concealment the victim. It's usually seen in the Prodigal homicide. Acechanza and concealment are synonymous with ambush (ocultation of one or more people to attack by surprise another or others).
• Taking advantage of a state of defenselessness: This is about taking advantage of the victim's lack of defense. The essential thing is that the passive subject could not defend himself before the agent's action. It is important to note that, in order to configure the aggravating circumstance, the state of defense of the victim must be the cause or motive for which the agent acts, thus seeking to work on safety and without risk.
• Insidious procedure: Insidious is the means used to commit the crime where the perpetrator conceals the aggression itself, the criminal intent as such. For example, use poison to kill the victim.

Objective and subjective theories

According to the objectivist criteria of the doctrine, the offender's conduct would be aggravated if the victim is in a state of defenselessness for physical, mental or physiological reasons. It is in this situation of the victim where the fact and the exemption of risk for the aggressor are ensured. Professor José Antón Oneca calls this circumstance between subjects abuse of superiority.

This current can be seen in Spanish jurisprudence, where treachery always occurs when the victims are children, disabled or elderly.

The subjectivists proclaim the criterion of observing in the conduct of the perpetrator if there was an intention to seek the defenselessness of the subject or to take advantage of it.

Currently, most scholars agree with the mixed theory, which is a mixture of the objective and subjective criteria mentioned above.

Others

In the Spanish Criminal Code there is often confusion between article 22.1 of the Code itself, which shows treachery as an objective aggravating circumstance, and article 22.2, which establishes disguise, abuse of superiority or taking advantage of circumstances that weaken the victim's defense or facilitate the impunity of the offender, since the second article would come to be framed in a treacherous fund, which could mistakenly lead us to apply the two aggravating circumstances jointly, violating the principle of non bis in idem. To avoid this, the jurisprudence has established different criteria among which the compatibility or incompatibility of certain circumstances can be deduced, in the form of a contest of laws on causes modifying criminal responsibility.

The Chilean Penal Code contemplates this aggravating circumstance in article 391 No. 1 as one of the elements that make up the so-called qualified homicide.