Most philosophers of criminal law agree that between criminal offences and defences there is a significant, substantial difference. It is a difference, however, that has proved hard to pin down. In recent work, Duff and others have suggested that it mirrors the distinction between criminal answerability and liability to criminal punishment. Offence definitions, says Duff, are—and ought to be—those action-types ‘for which a defendant can properly be called to answer in a criminal court, on pain of conviction and condemnation if she cannot offer an exculpatory answer’; and defences are ‘exculpatory answers’ that ‘block the transition from responsibility to liability’. I criticise this answerability-based account of the offence/defence divide. It is descriptively false, I claim, as well as normatively unappealing.
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I use ‘correct’, or ‘correctly made’, to refer to decisions that are both legally authorised and legally permitted, and which may moreover be legally required.
For any given fact x, of course, and any given legal system, it may be the case either that the negation of x is qualified as an offence-element or that x is qualified as a defence. It is only because self-defence is typically qualified as a defence in contemporary legal systems, and lack of consent as an element of rape, that I am able to use them as examples. (Fletcher 1978: 698ff. suggests that it may be ‘preferable to treat consent to sexual contact as ground for exculpating criminal conduct’, but his arguments seem to mistake the question whether sexual penetration is prima facie wrongful for the question whether to recognise it as a discrete criminal offence: cf. Dempsey and Herring 2007: 470–471.)
This means, in what particularly concerns the issue of how to differentiate offences and defences, that the criterion that governs the distinction as it is actually drawn in our criminal systems and by our criminal courts will then be the criterion to keep in mind when addressing the normative question whether any given circumstance ought to be recognised as an defence or, instead, as a (negative) element of an offence. Thus in relation to ‘the victim’s lack of consent’ in rape, for example, the question to ask—the relevant issue to submit to our normative judgments as ‘citizens of contemporary liberal democracies’—is, Duff thinks, whether we should ‘have to answer, to our fellow citizens through the criminal courts, for every act of sexual penetration’: cf. Duff (2007: 208–209) (and compare ibid., p. 80).
As when the fact of self-defence, e.g. is said to be a defence (cf. ibid., pp. 21 n. 7, 211, 219), or when agents are said to ‘have a justification’, e.g. on the grounds of the facts of the case rather than on the grounds of what they may have happened to have pleaded in answering any charges (cf. e.g. ibid., pp. 21 or 218).
It is in this remarkable difference between both kinds of circumstances that, in my view, we find the key to understanding the offence/defence distinction. The characteristic behaviour of defeaters is, I think, to be explained in terms of the distinction, relative to any given decision-type C in some decision-making contexts, between two classes of relevant facts: those that can, and those that cannot, remain uncertain if a token decision C is to count as correctly made. The former is the class of defeaters; a fact F is a defeater relative to some decision-type C only if (a) the ascertainment or proof of F is sufficient for a token decision C not to count as correctly made, and (b) the ascertainment of the negation of F is not necessary for a token decision C to count as correctly made. The necessary absence of defeaters, which is a condition of correctly made (defeasible) convictions, cannot therefore be given a ‘substantive’ representation at all. But this is not the place to argue for—and make more precise—this proof-based account of the offence/divide, which I introduce and defend at length elsewhere.
Nor is the effect of the successful ascertainment of a defeating circumstance at the liability ‘stage’ to be explained in terms of any ‘presumption of guilt’, supposedly grounded on the bare proof of the elements of an offence, that the defeater ‘cancels’. Duff’s views about a ‘presumptive inference’ from responsibility to liability, and his idiosyncratic reading of the Presumption of Innocence (cf. Duff 2007: 196, 198, 207, 216, 236, or 263), strike me as ad hoc. On this point of Duff’s account, see Leader-Elliot (2010: 62–63).
In the tripartite model of crime that is both the product and the template of modern German criminal theory, an action’s conformity to a legally defined Tatbestand is not sufficient for it to count as criminal (i.e. as a criminal infraction, a criminal Verbrechen). For one, we are told, no action is criminal that is not legally wrongful—i.e. that is not impermissible—and the fact that someone’s action satisfies a Tatbestand is itself insufficient to establish its wrongfulness, its Rechtswidrigkeit. Moreover, an agent must be culpable of the performance of the wrongful action; so her culpability, her Schuld, is also a necessary ‘element’ of crime. For variously informative overviews of the German model, see Hassemer (1990: 200ff.), Brito (1995: 73ff.), Jescheck and Weigend (1996: 195ff.), Jung (2002: 369ff.), Dubber (2005: especially 1051ff.), Roxin (2006: 190ff.), Duff (2007: 204–206), or the systematic presentation in Bohlander (2009: 16ff).
In Hart’s example, accordingly, the unqualified ‘He hit her’—which is appropriate only when no defeaters are present, as Hart would note—would be read as ‘He hitR her’. The agent’s hittingD is thereby identified as a relevant hittingD for the purpose, say, of holding him liable to some set of blame-related consequences. But suppose that it emerges that the agent’s hittingD was done in self-defence (and that, in the context, self-defence is recognised as a defeater making it inappropriate to blame or punish the agent for that particular hittingD). Then what Hart diffusely construes as an apt objection to the unqualified ‘He hit her’—with its correlative demand for qualification: ‘No, he hit her in self-defence’—can be more precisely described as the denial that the agent hitR someone (though not, of course, as a denial that the agent did hitD someone). That objection would thus be grounded on the claim that a hittingD done in self-defence would not be a relevant hittingD in the corresponding blame-ascription context, that it would not be the sort of hittingD that counts or matters in that context—that it would not be a hittingR.
Tadros at one point entertains the thought that perhaps ‘the important distinction is that between positive features of the world, features that positively describe the conduct of the defendant, and morally significant absences’, i.e. ‘features of the situation which are not present, but which, were they present, would have moral significance’ (Tadros 2005: 110). He casts this in terms of the difference between ‘features which are constitutive of the moral nature of conduct’ and ‘features whose absence is not constitutive of the moral nature of conduct, but whose presence would be morally significant’ (p. 111). This is on the right track; yet Tadros’s unexamined substantivist bias—like Duff, he takes ‘presence’ and ‘absence’ to stand, respectively, for what is and is not the case—prevents him from convincingly explaining how it can be simultaneously said of any given circumstance F that its ‘presence’ is, but its ‘absence’ is not, morally ‘significant’. Surely if it makes a difference whether a fact F is the case, it makes a difference whether F is not the case—and Tadros’s occasional references to the ‘exceptional’ character of defeating circumstances (pp. 111–112) are left undeveloped.
It is not for the commission of the Tatbestand, if one were to employ the German notion that Duff thinks ‘might be a better way of capturing the idea of a criminal offence than the analytic or expository device of actus reus and mens rea’ (Duff 2007: 206), but for the commission of the Verbrechen: cf. footnote 10 above. Tellingly, perhaps, and in spite of his insistence that it is ‘offences’ (in the strict sense) what we are criminally responsible for, Duff’s terminology oscillates: we may often find him also speaking of ‘crimes’ (or ‘criminal conduct’) as that which prosecutors must ‘prove’, and for which we must answer (cf. e.g. ibid., pp. 177ff., 191, 198; Duff et al. 2007: 101, 108, 113, 132, 142, 144–145, 147; as well as, of course, the very title of his 2007 monograph, ‘Answering for Crime’). Compare Peter Westen’s remarks in (2008: 567–569).
It is quite easy, of course, to make the slip of supposing that the characteristic effect of defences—of defeaters—is inextricably connected to some kind of sequential or logical ordering of offences and defeaters: in the domain of criminal responsibility as in that of the everyday, non-institutional accusations, the natural and most vivid way of thinking about the operation of defeaters is in terms of an expansion of the body of relevant evidence that occurs after some charge or accusation has already been made. And indeed the literature on legal defeasibility abounds with instances of that mistake — starting with Hart’s erroneous association of legal defeasibility to ‘the ways in which legal utterances can be challenged’ (Hart 1949: 175). See, for example, Nakhnikian (1957: 26), Baier (1970: 101), Heintz (1981: 243), Howarth (1981: 36), Chapman (1998a: 323), Chapman (1998b: 1508–1509), Chapman (1998c: 450–451), Tur (2001: 358, 360, contrasting his ‘defeasibilist’ approach, which ‘seeks to reconstruct the data in structured, conceptually sequenced manner’, with the ‘unsequenced logic of closure’); and Husak’s hesitation in (2010: 291, n. 26). But compare Campbell’s rightly drawn distinction between ‘things [that] are correctly regarded as defences [lato sensu] in the context of planning and conducting a defence against legal proceedings, but are not to be so regarded at the level of the formulation of the relevant legal rules’ (Campbell 1987: 77, 82).
In this respect, at any rate. There may be other dimensions in which answerability or accountability—legal or extra-legal—can plausibly be said to be primary relative to other senses of ‘responsibility’. Cf. e.g. Nowell-Smith (1976: 315), Lucas (1993: 5–6), Watson (2004: 262ff.), Garzón Valdés (1997: 113–114), Oshana (1997: 77ff).
Does Gardner not explicitly agree that ‘anyone who threateningly asks “Why did you do that?” is claiming to have a reasonable suspicion that the person she is addressing is a wrongdoer’ (Gardner 2007: 197, my emphasis)? Does Duff not stress that if defendants are brought to trial they are ‘suspected’ to be guilty of criminal conduct (Duff 2007: 197)? But ‘suspicion’ is an epistemic term: if I know or believe that you are innocent, that you acted permissibly, I do not suspect that you are a wrongdoer, guilty of a crime.
For another example: we can agree, with Duff, both that the criminal offence in murder is to be described as ‘killing a human being’, rather than as ‘killing a human being without his (free, informed) request’ (Duff 2007: 214), and that the fact that the killing was done at the victim’s free and informed request ought to ‘function as a defence’ in murder (ibid., p. 215); but it certainly does not follow (nor would we, I think, agree) that “‘I killed V at V’s free and informed request and to spare him the intolerable suffering of his terminal illness” is […] an answer that [the] D[efendant] should have to offer the polity if she is to avoid conviction’ (ibid., p. 216, my emphasis.) Yet this last passage, in which the fact that a defence or answer is actually offered is explicitly presented as a necessary condition for the defendant to avoid conviction, is exemplary of the kind of language that Duff consistently employs (cf. ibid., pp. 31, 77, 80, 84, 147, 211).
The point here, to be clear, is not that the offence/defence distinction is in any way relative to the contingent epistemic position of the police or prosecutor. The point is rather that defences—defeaters—are facts, the ascertainment of which is sufficient for the prosecution not to count as correctly made (even though the ascertainment of their negation is not necessary for the prosecution to count as correctly made: differently from offence-elements, defeaters may in this sense remain ‘uncertain’); cf. footnote 7.
Compare, indeed, on the topic of rape and the role of the victim’s lack of consent as an ‘element’ of the offence, Duff (2007: 209): ‘we should not have to answer, to our fellow citizens through the criminal courts, for every act of sexual penetration’.
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For helpful comments and discussion I am grateful to Antony Duff, Benjamin Spagnolo, James Edwards, John Gardner, Pedro Múrias, Timothy Endicott, audiences in Oxford and Lisbon, and an anonymous reviewer for Criminal Law and Philosophy. I also acknowledge and thank the financial support provided by the Portuguese Foundation for Science and Technology (grant SFRH/BD/44394/2008, financed by POPH-QREN-Type 4.1-Advanced Training, co-funded by the European Social Fund and by national MCTES funds).
The quote in the title is from Shakespeare, Sonnet 139.
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Duarte d’Almeida, L. ‘O Call Me Not to Justify the Wrong’: Criminal Answerability and the Offence/Defence Distinction. Criminal Law, Philosophy 6, 227–245 (2012). https://doi.org/10.1007/s11572-012-9148-y