Abstract
My aim in this paper is to defend negligence as a legitimate basis for moral and criminal culpability. In so doing, I also hope to demonstrate how philosophical and jurisprudential perspectives on responsibility can mutually inform each other. While much of the paper focuses on criminal negligence, my aim is to show how attention to certain doctrines and concepts in criminal law can shed light on our understanding of moral culpability including culpability for negligence. It is often taken to be a fundamental principle of criminal law that an act cannot be guilty unless it is accompanied by a culpable state of mind or mens rea. This has led to scepticism regarding negligence as a legitimate basis for desert-based criminal sanction because it is not clear that negligence picks out any mental state at all, much less a culpable one. In this paper I articulate and defend a unified account of moral and criminal culpability that rejects the standard view of mens rea that underlies negligence-skepticism. Specifically, I hold that the mens rea element of a crime does not function to inculpate, as is standardly held, but to partly determine the description under which an action counts as wrongful. While I agree that we should be especially cautious about criminalizing negligence, the relevant question, on my view, is not whether a given mens is sufficiently culpable but whether the mens-cum-actus is sufficiently wrongful to warrant the attention of criminal justice.
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Notes
Director of Public Prosecutions (DPP) v. Morgan [1976] AC 182, [1975] UKHL 3, at 206.
Lord Cross, Morgan, at 204.
Lord Cross, Morgan, at 204.
This line of reasoning is made even more explicit in the Canadian case of Pappajohn, which draws on Morgan as an authority: “It is not clear how one can properly relate reasonableness (an element in offences of negligence) to rape (a ‘true crime’ and not an offence of negligence). To do so, one must, I think take the view that the mens rea goes only to the physical act of intercourse and not to non-consent” (Pappajohn v. The Queen [1980] 2 SCR 120, at 152). I elaborate on this in the fourth and final section.
With the Sexual Offences Act of 2003, “the United Kingdom Government finally reversed Morgan for rape requiring any mistaken belief defence to be reasonable” (Stuart 2011: 304). In Canada, the precedent set by Pappajohn followed Morgan in holding that an honest but unreasonable belief as to consent would absolve one of a rape charge. For a powerful critique of the Pappajohn decision, see Toni Pickard (1980b). In 1983, the Canadian Government amended the Criminal Code to specify that a mistaken belief in consent does not provide a defence if “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting” (§273.2(b)). However, in R v. Darrach (1998) 122 CCC (3d) (Ont CA), the Court clarified that this does not amount to a standard of negligence as it distinguished between a “reasonable belief” and taking “reasonable steps” in forming one’s belief. As I argue elsewhere [omitted], either this is a distinction without a substantive difference or the negligence-standard is morally and conceptually preferable. One could view this essay as providing a theoretical and conceptual foundation for these reforms by defending the legitimacy of a negligence standard with respect to consent.
Cf. Matt King: “the fact that negligence is characterized by the absence of certain conscious mental states, rather than by any positive feature, poses a deep and general problem to any theory of responsibility” (2009: 577).
While Watson does not explicitly use the term “deontic” to describe the accountability face of responsibility, Darwall (2016) does refer to attributability and accountability in terms of the aretaic and deontic dimensions of responsibility.
I am following Duff in using the word “liability” to refer to a person’s deservingness of criminal sanction. This differs from alternative uses of the word ‘liability’ as meaning strict liability, as implying the aptness of sanction in the absence of culpability or blameworthiness. As I am using it, ‘liability’ is a constitutive part of accountability, along with answerability.
My view of answerability differs from Duff’s in one crucial respect. According to Duff, moral answerability requires only an intentional action and the causation of harm; hence, “we are held morally responsible [answerable] for such harms [as breaking a vase] even if we do no wrong in causing them” (2009: 307). That is, Duff holds that “moral answerability for the harmful effects of intentional actions is typically strict, since I must be ready to answer for the harm that I inadvertently cause” (2019: 171–72). Duff does accept that criminal answerability is typically not strict, as it typically requires a mens rea element. In contrast to Duff, I hold that neither moral nor criminal answerability is typically strict, though this will depend on one’s view of the content of first-order normative ethics. On my view, one is morally answerable for moral wrongdoing and criminally answerable for criminal wrongdoing. In the criminal context, I take the mens rea and actus reus elements to jointly constitute the criminal wrong. On a plausible view of first-order normative ethics, a moral analogue to mens rea is typically required for a piece of conduct to count as an instance of wrongdoing. I articulate and defend this view in my [references omitted].
Cf. Angela Smith (drawing on T.M. Scanlon 1998): “to say that an agent is morally responsible [i.e. answerable] for some thing is to say that that agent is open, in principle, to demands for justification regarding that thing” (2012: 578); David Shoemaker: “An agent is answerable for just in case is attributable to her in virtue of its reflecting her evaluative judgments in such a way that she may intelligibly be called on to defend or explain by citing the reason in favor of she judged sufficient” (2015: 72, added emphasis). While I agree that this is one way a person can answerable, I find it to be an overly narrow way of conceptualizing answerability, as it does not sufficiently distinguish between excuse and justification. See, for example, Dana Nelkin’s criticism of Smith’s view: “it appears that the concept of excuse—as distinct from justification—is not relevant,” for “[i]t is unclear what could count as an excuse or mitigating factor in blameworthiness on this model” (2015: 382).
I argue for this claim in Tiffany (2022).
See Dana Nelkin (2016) and Alex Guerrero (2017) on the relevance of difficulty to (degree of) culpability. Duff holds that “moral answerability…is typically strict” (2019: 171) such that the absence of relevant information rarely undermines answerability, and Shoemaker takes the absence of information as necessarily undermining answerability because it entails that “there just is no answer of the sort being sought” (2013: 165). In contrast, I hold that whether ignorance undermines answerability or liability depends on the description of the action under which one is being called to account and whether the ignorance undermines the aptness of that description [Reference omitted].
Some prefer to conceptualize duress as a justification-defence, and insanity as an excuse. The categorization of these defences is not germane to the present point, which is merely to establish that defences (of any category) function as exculpatory explanation which blocks the transition from answerability to liability. Likewise, nothing here hinges on whether one conceptualizes insanity as an excuse or exemption.
See Hannah Pickard (2021) for an excellent account of some of these complexities and the way that one can still manifest agency in the context of addiction.
I thus agree with Hurd that “moral wrongdoing consists of doing an action that violates the maxims of our best moral theory—whatever that theory may be” (1999: 1558). I can also accept that “the objects of our best moral theories are causally complex actions” and that “wrongdoing does not occur until we have completed the causally complex actions prohibited by our best moral theory” (Hurd 1999: 1558). However, I understand certain mental states or attitudes to partly constitute one’s action—‘intentionally punching a person in the face’ is a distinct action from ‘accidentally hitting a person’ even if the motor movement is type-identical.
As Duff puts it, “I deny that ‘offending V’ is an action for which I am answerable” (2019: 168). This way of putting the point, however, is ambiguous between whether one is denying that ‘offending V’ is an apt description of what one did or denying that the act of offending V is wrong.
Both elements are features of the Model Penal Code’s definition of negligence. Condition (2) is often taken to distinguish negligence from recklessness—see, for example, Ori Herstein: “All negligence is unwitting, at least if we take the term ‘negligence’ to stand for a normative category distinct from related categories such as intentional, known, or reckless conduct” (2019: 111), and Alexander and Ferzan: “True negligence is inadvertent creation of unreasonable risks” (2009: 69). Findlay Stark provides compelling evidence of a “growing doctrinal convergence” on this way of distinguishing recklessness from negligence (2016: Ch. 1). Regarding condition (1), this is often how negligence is distinguished from mere inadvertence or strict liability—see, for example, Alexander and Ferzan: “What distinguishes negligence from strict liability is that the negligent actor’s unawareness of the risk is a failure to meet the objective ‘reasonable person’ standard” (2009: 69). Not all lawyers would accept this characterization of negligence. For, example, one might hold that the magnitude of risk is an important factor in what counts as (criminally) negligent or reckless. For example, Moore and Hurd note that criminal negligence is equated with “gross negligence,” which this involves a sufficient magnitude of harm: “where the risks are serious and obvious and the justifications for running them are minimal, the negligence is ‘gross’ (2011: 149). Likewise, they allow room for “advertent negligence, conceived of as unreasonable risk-taking that is advertent but not so gross in its magnitude as to be reckless” (2011: 149).
Ashworth and Horder (2013: 180); quoted from Stark (2016: 183). The context is a criticism of Elliot v. C (A Minor) in which a 14 year-old girl of low intelligence had spent the night outdoors wandering when she sought shelter in a garden shed. The shed contained spirits which the girl poured on the floor and set alight for warmth, not realizing that the fire would spread to the entire shed. The Court of Appeals applied an objective standard of recklessness (the law at the time did not distinguish recklessness and negligence) which did not allow for consideration of C’s low intelligence, resulting in her conviction for criminal damage. See also, Ferzan: “liability for negligence is problematic because it has the potential to punish individuals despite the lack of a capacity to meet the objective standard [for “reasonableness”]” (2016: 425).
Brink and Nelkin (2013); Brink (2021). While it is outside the scope of this paper to argue for a particular view of accountability, I find the fair opportunity to avoid wrongdoing model plausible. Here, it refer to it for illustrative purposes; the argument should be unaffected if one were to simply replace references to fair opportunity with one’s preferred theory of accountability.
Cf. Lord Mustill: “I would therefore reject that…the absence of moral fault on the part of the appellant as sufficient in itself to negative the necessary mental element of the offence” (R v. Kingston [1995] 2 AC 355).
In this way my view differs from Hart’s. Hart holds that “negligence is made criminally punishable” if two conditions are met: “(i) Did the accused fail to take those precautions which any reasonable man with normal capacities would in the circumstances have taken? (ii) Could the accused, given his mental and physical capacities, have taken those precautions?” (2008: 154). On my view, the second condition concerns fair opportunity, and hence liability, rather than answerability.
I expand on this line of reasoning in my [omitted, xx].
In this way, my view is very close to that defended by David Brink (2019, 2021). With Brink, I agree that elemental mens rea “is an ingredient in wrongdoing itself” (2019: 348). However, Brink also conceptualizes elemental mens rea as a type of culpability which he calls “narrow culpability.” He describes the four categories of elemental mens rea recognized by the Model Penal Code as “reflect[ing] four grades of culpability from greater to lesser culpability” (2019: 360). Hence, Brink seems to accept the standard view that identifies elemental mens rea with a culpable mental state. However, Brink also distinguishes this sense of culpability from “broad culpability” which “forms a proper part of the retributive desert basis of censure and sanction” (2019: 248) in the sense that “culpable wrongdoing is the desert basis for punishment” and “involves responsibility” (2019: 354). Contra Brink, I prefer to keep the concepts of wrongdoing and culpability distinct, rather than conceptualize one type of culpability as an ingredient in wrongdoing and another as what combines with wrongdoing to make one liable to sanction. Depending on how Brink understands the “culpability” aspect of “narrow culpability,” this may simply be a terminological, rather than substantive, dispute.
See Chan and Simester (2011: 385).
“…the law recognizes that, exceptionally, an accused person may be entitled to be acquitted if there is a possibility that although his act was intentional, the intent itself arose out of circumstances for which he bears no blame” [1994] Q.B. 81, at 87.
[1995] A.C. 355 (HL), at 366. Cf. Lord Mustill: “to assume that contemporary moral judgments affect the criminality of the act, as distinct from the punishment appropriate to the crime once proved, is to be misled by the expression ‘mens rea’, the ambiguity of which has been the subject of complaint for more than a century. Certainly, the ‘mens’ of the defendant must usually be involved in the offence: but the epithet ‘rea’ refers to the criminality of the act in which the mind is engaged, not to its moral character” (Ibid. at 364).
The question of knowledge can be relevant to either question. In my [omitted] I argue that the way in which ignorance exculpates differs depending on whether it is taken to defeat answerability or accountability, and that this difference can help to resolve some of the philosophical disputes surrounding the relevance of moral ignorance to culpability.
To be clear, I am not endorsing this view of the content of criminal wrongfulness, nor the legitimacy of strict liability offences. I intend to remain neutral with respect to debates between positivists and non-positivists regarding the source of the content of criminality. I also intend to remain neutral on the legitimacy of strict liability. My point here is merely structural—that insofar as one thinks that certain types of strict liability offences are a justifiable feature of a system of criminal justice but not morality, that combination of views would merely indicate a difference in the normative content of criminal law and morality; it would not indicate an asymmetry in the conceptual architecture of responsibility across the two domains.
Shoemaker argues that strict liability poses a problem for the view that “essential elements of CR [criminal responsibility] are structural and functional analogs of essential elements of MR [moral responsibility]” (2013: 155). I offer a more direct argument against Shoemaker in my [omitted].
In this way I agree with Findlay Stark that we can characterize negligence “in terms of the defendant’s failure to form a belief that there was a specific risk attendant upon her behaviour” (2016: 226, added emphasis), for “[i]t is that absence of awareness of risk that links the defendant, as an agent, to her wrongdoing” (2016: 227). However, Stark distinguishes between “conduct-based” and “belief-based” conceptions of negligence and argues that “negligence is best understood” on the belief-based conception in contrast to the conduct-based conception that he attributes to Hart. As I explain in the next paragraph, I take this to be a false dichotomy, as the unit of evaluation is neither the act nor the belief but the action, holistically described to incorporate the voluntary conduct, attendant circumstances, and the defendant’s mental state.
Of course, this act could reveal something about my quality of will—e.g. if you are confiding something important to me, and my attention ought to be directed at you. But, again, this would account for the act’s wrongfulness, not its imputability.
Government of Canada, 1982: 48. See also Dickson J.: “Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction” (R v. Sault Ste. Marie [1978] 40 C.C.C. [2d] 353 at 363 [S.C.C].).
Chan and Simester identify this is as one of the functions of mens rea (2011: 384).
Cf. Lord Simon: “The actus reus is sexual intercourse with a woman who is not in fact consenting to such intercourse” (Morgan, at p. 218). “The actus reus of rape is complete upon (a) an act of sexual intercourse; (b) without consent” (Pappajohn, at p. 122). Note that this description of the actus reus does not require force as a necessarily element, which is widely considered to be an improvement in our understanding of the law of rape. See, e.g., Tuerkheimer (2015).
Ferzan (2016) makes a similar point in drawing a contrast between criminal and tort law. After discussing the ways in which the Reporters to the Restatement (Third) of Torts struggle to define consent, she observes: “Criminal lawyers should clearly see there is a better way to do this—through mens rea” (2016: 414). That is, the criminal law should ask whether “the defendant lacked the mens rea necessary for the attendant circumstance of consent,” and if “his belief [in consent] was reasonable, he did not act recklessly or negligently vis-à-vis the lack of consent” (Ferzan 2016: 414).
Ferzan is arguing against certain specific proposals for understanding consent. She argues that adopting a “no means no” rule “changes the meaning of ‘no’ from a factual meaning (evidencing acquiescence) to a legal meaning (deeming sex impermissible),” and that this would impose “substantively strict liability” (2016: 417–418). She then argues against interpreting the rule as a negligence per se rule. Here I abstract away from the specific rules and focus on the worry about negligence as a standard for criminal liability.
See Nelkin (2016) for a discussion of the ways in which difficulty can mitigate and undermine culpability.
See Ferzan (2016) for a critique of affirmative expressions standards such as “no means no” and “only yes mean yes” ( 414–428). My aim here is not to defend an particular standard of consent, though I have tried to address Ferzan’s general challenge to the adequacy of negligence with respect to consent as a basis for criminal liability.
To borrow terminology from Zimmerman (2002), one could put the distinction in terms of the “deontic” versus “hypological,” where the former concern “judgments of right, wrong, and obligation” and the latter concern “the moral praiseworthiness (or laudability) and blameworthiness (or culpability) of persons” (554).
A concrete proposal for specific criminal statutes regarding the law of rape is an enormously complex issue that involves multiple, and not always commensurable, factors. See, for example, the Report of the Law Reform Commission of Ireland, Knowledge or Belief Concerning Consent in Rape Law (2019). My concern in this paper is only with the theoretical issue of culpability.
Cf. David Brink on punishment for criminal attempts: “ideal criminal law theory would not be bivalent, but rather continuously multivalent, apportioning censure and sanction to degree of completion of the attempt. Of course, courts might not always be reliable about making fine discriminations…[so] there are good pragmatic reasons for eschewing the continuous multivalent system that would be appropriate for ideal theory and for adopting a more coarse-grained conception…in which the space of attempts might be lumpy or discontinuous” (2017:201).
See Douglas Husak (2011) for a thorough discussion of the de minimus defence in criminal law.
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Tiffany, E. Answering for Negligence: A Unified Account of Moral and Criminal Responsibility. J Ethics (2024). https://doi.org/10.1007/s10892-024-09472-x
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DOI: https://doi.org/10.1007/s10892-024-09472-x