Almost every issue of the “Law and People” gazette carries a story about shoplifting — intentional or not, it makes little difference. The fact that lawyers take on new cases against our clients every single month speaks to just how widespread the phenomenon is, and to the sheer temptation posed by a sales floor. We fully realize that our articles will do nothing to change the behavior of people who simply cannot walk past something lying within easy reach. But among those who risk ending up in the criminal register are also people who committed theft with no intent whatsoever — through sheer absent-mindedness. It is unfortunate that absent-mindedness is not taken into account when a criminal case is opened. So be careful!
A Trip to the Store
Svetlana is a German citizen. A young woman. Before going on parental leave, she worked as a landscaper — grass, flowers, all the things that brighten a city dweller’s life in the warm months and, unlike paintings, are never signed. Her career, though, never really took off. She fell in love, moved in with a young man. Got pregnant. But ended up giving birth on her own — the would-be father had a change of heart about fatherhood and made himself scarce, well clear of any responsibility. When Svetlana gave birth, the joy of bonding with her baby mixed with tears of resentment toward the child’s father and a life that, by her own account, looked nothing like she had hoped. Her mother and numerous relatives only added fuel to the fire. Fortunately, Svetlana lived on her own, and the criticism came in manageable doses — measured out in visiting hours and answered phone calls.
Her life had, in effect, been reduced to the company of her baby and her own thoughts during sleepless nights. One day Svetlana and her little one went out shopping. She needed groceries, baby-hygiene items, and various odds and ends for the home. They went into one of the large chain stores that sell such goods and got lost among the aisles. The baby dozed peacefully in the stroller. And since Svetlana had had no other entertainment lately besides browsing stores, she was in no hurry to leave the sales floor, moving unhurriedly from shelf to shelf.
Anyone who has ever watched mothers with strollers in a store can confirm that they most often pile items onto the stroller’s soft canopy — there simply aren’t enough free hands to push a stroller and carry a shopping basket, let alone a shopping cart. Jars of baby food, wet wipes, and diapers piled up on the pink canopy of the stroller Svetlana was pushing. The diapers, however, refused to stay put and kept sliding to the floor. So Svetlana moved them down to the mesh basket almost every stroller has underneath — along with, as it happened, three glass jars of baby food. Everything compact and unbreakable stayed on top.
Having finished her shopping — there wasn’t much money for it anyway — and browsing the new items so essential to a woman’s everyday life, known to men under a single word, cosmetics, Svetlana headed to the checkout. Having waited her turn, she placed her purchases on the belt, paid, and headed for the exit. Suddenly, a store detective blocked her path. Left behind in the mesh basket under the stroller were the diapers and the three jars of baby food. Svetlana blushed and began apologizing, explaining what had happened as simple absent-mindedness. The detective did not call the police, but did draw up a report and promised to forward it to them.
You Know How It Goes
Time passed. No letter came from the police, and Svetlana stopped thinking about the unpleasant incident — she had plenty of other things to worry about as it was. But five months later, Svetlana received a letter from the court. The envelope contained a court ruling issued against her in absentia under the offense of “theft.” Under the simplified procedure, a court is entitled to rule on such a case without the defendant’s presence, giving the convicted person two weeks to appeal the ruling. And it was with that ruling in hand that Svetlana came to our law firm for help.
After signing an engagement agreement with the client for representation of her interests, our lawyer requested the case file. The ruling’s entry into legal force was postponed pending the lawyer’s review of the record and response. As the file revealed, the police had in fact sent Svetlana a letter inviting her to give a statement — though it may well have ended up in the trash along with a stack of junk mail. Otherwise, the detective’s account matched what Svetlana had told us, with one key difference: Svetlana did not consider herself guilty, while to the detective, she was a catch. It was clear to our firm’s lawyer that discontinuing the case for lack of sufficient grounds was no longer realistic. What mattered now was keeping the case from reaching an actual trial — all the more so since the prospect of standing trial as a defendant filled Svetlana with genuine panic.
Providence Willing
Every legal system views an act through the lens of either intent or negligence. Any decision rests on whether or not there was intent to commit the offense. An offense is considered to have been committed with direct intent if the person was aware of the socially dangerous nature of their act (or omission), foresaw the possibility or inevitability of socially dangerous consequences, and desired those consequences. An offense is considered to have been committed with indirect intent if the person was aware of the socially dangerous nature of their act, foresaw the possibility of socially dangerous consequences, did not desire them, but knowingly accepted them or was indifferent to them.
Offenses committed without intent also come with their own gradations. An offense, for instance, is considered to have been committed through negligence if the person did not foresee the possibility of socially dangerous consequences resulting from their act, even though, with the necessary care and foresight, they should and could have foreseen them. There is also criminal carelessness, recklessness, and so on.
For an ordinary person, particularly in the maximally comfortable atmosphere store staff work hard to create, it can be difficult to stay focused on the fact that they are handling someone else’s property until they actually pay for it at the checkout. This is also a psychological factor behind why people sometimes forget about items in a bag without presenting them at the till. That factor, however, is not treated as an excuse.
In the objection our firm’s lawyer filed with the court, the circumstances of Svetlana’s life were set out — that she was under significant stress — alongside the legal argument that Svetlana had no prior criminal record and had committed the offense entirely without intent, through mere negligence, that the value of the unpaid items was small, and that the store suffered no loss whatsoever. Our proposal was to discontinue the criminal case for minor significance under §153. Having reviewed our objection, the court asked the public prosecutor’s office either to agree to the proposal to discontinue the case or to refuse it. In the end, the prosecutor’s office agreed with the arguments set out by our lawyer, and the case was closed — sparing Svetlana yet another source of stress in her life.
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