Derecho penal y un bisturí: entre el azar, la temeridad y el engaño

Abstract

Clandestine medical practice raises a question for criminal law that is as uncomfortable as it is decisive: when does the conscious creation of a risk to life cease to constitute negligence and begin to amount to intent? The answer cannot be found solely in the clandestine nature of the activity, the inadequate conditions of the facility, or the seriousness of the resulting harm, since doing so would effectively turn the objectively created risk into sufficient proof of the agent’s subjective relationship with the injury or death, thereby approaching concealed forms of strict liability. On this premise, this research reconstructs the principal ontological and normative conceptions of intent and examines the difficult boundary between dolus eventualis and advertent negligence in the context of clandestine medical and aesthetic procedures, focusing on the agent’s stance toward the foreseen result. The study argues that these cases do not admit a single solution: an intervention may remain within the realm of advertent negligence where the agent, despite foreseeing the result, trusts that it can be avoided; dolus eventualis may arise from the initial active conduct where the agent foresees the realization of the prohibited result as probable and leaves its non-occurrence to chance; or, once the risk subsequently materializes, the conduct may constitute an autonomous omission capable of supporting intentional liability, provided that the legal requirements for commission by omission are satisfied.