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Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide

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Abstract

It is widely agreed that the top three Model Penal Code culpability levels suffice for criminal liability, but the fourth is controversial. And it isn’t just the particular MPC wording; that negligence should be on the list at all is controversial. My question is: What (if anything) makes negligence so different? What is it about negligence that gives rise to the view that it should not suffice for criminal liability? In addressing it, I draw attention to how we conduct the debate, and how our framing of the issues is shaping it (maybe leading some scholars to view negligence as less suitable as a species of mens rea than it in fact is, maybe leading those who want to argue that it does suffice for criminal liability to develop an account of negligence that meets some requirement that should not have to be met). My hope is to prompt thought and discussion on just what we want the element of mens rea to provide, and to draw attention to background assumptions that shape our views of what it should take for negligence to count as a species of mens rea (or, framed differently, to suffice for criminal liability).

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Notes

  1. It was noted at the workshop on recklessness and negligence held at the University of Reading in June, 2018 that in the UK, legal scholars and philosophers of law do not speak in terms of a “higher” and “lower” level. Among US scholars in law and philosophy working on the topic of mens rea, this is not only common, but standard, and is reflected in the MPC culpability levels, which are presented as forming a hierarchy. See MPC 2.02 (5).

  2. American Law Institute, Model Penal Code and Commentaries, 2.02 (2) (d). The full list of culpability levels—i.e., all of 2.02 (2)—is provided below in the Appendix.

  3. Ibid., 2.02 (2) (c).

  4. As Alexander and Ferzan have observed, the word ‘unjustifiable’ seems to be doing all the work. See Larry Alexander and Kimberly Kessler Ferzan (with Stephen Morse), Crime and Culpability: A Theory of Criminal Law (Cambridge University Press, 2009), pp. 25–27. In what follows, I take the liberty at times of saying ‘unjustifiable risk’ rather than ‘substantial and unjustifiable risk’.

  5. Douglas Husak, “Negligence, Belief, Blame, and Criminal Liability: The Special Case of Forgetting,” Criminal Law and Philosophy 5:2 (2011): 199–218. See also Susan A. Bandes, “Is It Immoral to Punish the Heedless and Clueless? A Comment on Alexander, Ferzan and Morse: Crime and Culpability,” Law and Philosophy 29:4 (2010): 433–453.

  6. Husak’s take is a little different. His view isn’t that the distinction looks murky but that it is murky. The “central theme” of his paper is that “the line between recklessness and negligence is murky and blurred,” and as a result, “we are likely to be confused about when liability is imposed for negligence” (202).

  7. Another reason that I see there to be less of an issue than Husak does is that I would not analyze awareness that p as if it were equivalent to belief that p. Husak favors framing awareness of p as belief that p because then we can draw on insights from epistemologists, who have had much more to say on belief than on awareness. That is a consideration in favor of the framework of belief, but only if the framework fits the phenomena. I do not think it does. All that said, I certainly don’t deny that there is an issue. Husak is right to emphasize the need to get clearer on the difference between recklessness and negligence. I try to shed some light on it in my “Negligence and Recklessness: Clarifying the Difference and Clearing Away the Dust” (in progress), and to bring out that disagreement about how they differ colors views on whether negligence suffices for criminal liability. Some who believe it does not are counting as instances of recklessness what others count as negligence.

  8. Making a point of not adverting to x should be assimilated to consciously disregarding x.

  9. What if one was aware of the risk at the time one decided to so act, later reassessed and had some misgivings, but then through all-too-common self-deception judged the risk to be miniscule, and so decided to go ahead after all? I take it that that would not count as recklessness, only as negligence.

  10. Husak, p. 208.

  11. One might wonder: could the thing that D consciously disregards be that the risk is substantial? I take the evaluation of whether the risk is substantial to be a part of the determination of whether it is justifiable. So, if one came to the conclusion that it was justifiable, that settles the matter: there isn’t a further question, “But maybe although it’s justifiable it’s substantial?” See note 4, above.

  12. There are of course other ways to understand it, some of which would encompass negligence. See R.A. Duff, “Recklessness and Rape,” Liverpool Law Review 3:2 (1981): 49–64; and see Caldwell (1982) A.C. 341, holding that one acts recklessly if “(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.” British scholarship on recklessness is voluminous and fascinating. See, inter alia, Glanville Williams, “Recklessness Redefined,” Cambridge Law Journal 40:2 (1981): 253–283 (and various other papers by Williams concerning Caldwell recklessness); R.A. Duff, Intention, Agency and Criminal Liability (Basil Blackwell, 1990); Kumaralingam Amirthalingam, “Caldwell Recklessness is Dead; Long Live Mens Rea’s Fecklessness,” The Modern Law Review 67:3 (2004): 491–500; and Findlay Stark, Culpable Carelessness (Cambridge University Press, 2016).

  13. One might wonder if another important point of contrast between recklessness and negligence as defined in the MPC is that, whereas the standard employed in the latter is the reasonable person, in the former, it’s the “law-abiding” person. It seems not. As Ken Simons has noted, the difference in wording does not seem to have been intended to mark a difference in meaning. Simons, “Should the Model Penal Code’s Mens Rea Provisions Be Amended?” Ohio State Journal of Criminal Law 1 (2003): 179–205, esp. note 24. See also the Model Penal Code Commentaries, 2.02, p. 242, note 27, indicating that the standard of recklessness “requires the same discriminations demanded by the standard of negligence.”

  14. I included the second disjunct because the MPC comments emphasize that there may be one mens rea required for one element of the offense, and a different one required for another element. And indeed that is how it has to be understood. Consider, for example, rape and other forms of sexual assault: the mens rea for the sexual activity itself should not be the same as the mens rea for the element of non-consent.

  15. Sometimes the phrase is used simply as shorthand (for example, in Joshua Dressler, Understanding Criminal Law, 7th ed., Lexis-Nexis (2015), pp. 133–134), but I think that there too it has the potential to mislead.

  16. Likewise, character-based arguments supporting the position that negligence suffices for criminal liability are sometimes challenged by claiming that the argument amounts to endorsing punishing merely for character. See, for instance, Alexander and Ferzan, Crime and Culpability, p. 72. Elsewhere, too, Alexander and Ferzan put forward arguments that rely on treating the punishment of negligent conduct as if it amounted to punishing simply for negligence. This is brought out well by Michelle Madden Dempsey in her “The Object of Criminal Responsibility,” discussing Alexander and Ferzan, “Against Negligence Liability” (drawn from their Crime and Culpability), both in Criminal Law Conversations, ed. Paul Robinson, Stephen P. Garvey, and Kimberly Kessler Ferzan (Oxford University Press, 2009). Relatedly, see Victor Tadros’ critical discussion in his Criminal Responsibility (Oxford University Press, 2005) of arguments against character theory that assert that “character theories claim that the criminal law punishes us for our characters, rather than for our actions, or for our choices” (p. 9; see Introduction and Chapter 2).

  17. Confusion arises here because there is also that issue: negligence—i.e., neglecting to do X—can itself be the actus reus. That is a separate issue (albeit related) from whether negligence should suffice to meet the mens rea requirement.

  18. Here and throughout my paper, “did A” is intended to include omissions.

  19. Dressler, p. 119. Dressler contrasts this meaning (the “narrow meaning”) of mens rea with the “broad meaning” of mens rea.

  20. H.L.A. Hart, “Negligence, Mens Rea, and Criminal Responsibility,” in Punishment and Responsibility: Essays in the Philosophy of Law, 2nd ed. (Oxford University Press, 2008), p. 157.

  21. For an explanation of the earlier view, see Dressler, pp. 118–119. The trial judge’s instruction in Regina v. Cunningham, 41 Crim. App. 155, 2 Q.B. 396, 2 All E.R. 412 (1957) (Court of Criminal Appeal) reflects the earlier view.

  22. Dressler, p. 118.

  23. Ibid., p. 118.

  24. See Hart, esp. pp. 140, 146, and 148; and R.A. Duff, Intention, Agency and Criminal Liability, Chapter 7.

  25. Note that a different definition of negligence, one that required culpable indifference, could get around this apparent obstacle to its sufficing for criminal liability. ‘I just didn’t care’ does not have the same air of innocence about it as ‘I forgot’ or ‘I didn’t notice.’ But on the MPC definition of negligence, negligent conduct need not involve culpable indifference (or indeed any indifference).

  26. See inter alia A.P. Simester “Can Negligence Be Culpable?” in Jeremy Horder, ed., Oxford Essays in Jurisprudence (Oxford University Press, 2000); David Dolinko, “Review of Crime and Culpability: A Theory of Criminal Law,” Criminal Law and Philosophy 6:1 (2012): 93–102.

  27. And it gets more bewildering: Sam and Ruth realize that “the child would be in grave danger if they failed to return and turn off the water,” but they believe “correctly that at the rate the tub is filling, they will have plenty of time to return to the child after they have welcomed the guests.” So they left the baby, didn’t turn off the water, and planned to open the front door and then hurry back to resume bathing the child? That would be an unusual way to begin one’s dinner party, and seems especially unlikely given that they are “throwing a dinner party for some socially prominent people who can help both of their careers and social standing” and they are “quite obsessed with making sure the party is a success” (77). The example as presented is not coherent.

  28. In their reply to David Dolinko’s review of their book, Alexander and Ferzan write, “We stipulate that Sam and Ruth act justifiably at t1 when they leave the child in the bath. That is, given the speed at which the bath tub is filling and the time it takes to answer the door, Sam and Ruth believe that the risk they are imposing on their child is justified, and they are correct in that belief” (Alexander and Ferzan, “Iconoclasts? Who, Us? A Reply to Dolinko,” Criminal Law and Philosophy 6:2 (2012): 281–287, p. 284.) But not just anything can be stipulated. How could imposing that risk on their child be justified, given the facts as presented?

    In addition to being very implausible, their claim is puzzling for reasons of internal coherence. First, it is odd that they would deem this justified, given their discussion in Chapter 2 of Crime and Culpability explaining why the MPC definition of ‘recklessness’ would be better if the requirement that the risk be substantial were dropped. Arguing that ‘substantial’ does no independent work and simply enters into the determination of whether the risk was unjustifiable, they observe that “[e]ven very tiny risk impositions can be culpable if imposed for insufficient or misanthropic reasons” (27). Indeed. Sam and Ruth’s reasons are not misanthropic but they are insufficient given what is at stake (particularly when one of them could stay with the child while the other goes to the door). In this discussion, and likewise in their reply to Ken Simons in “Response to Critics” (Criminal Law Conversations), they fully recognize that chancing X, where X would be disastrous yet where the risk of X is quite low, is only justifiable if the reason is adequate. Second, their claim (quoted above, from “Iconoclasts?”) that Sam and Ruth were justified does not sit well with their presentation of the example as an example of negligence. If they were justified, why say that they acted negligently?

  29. Alexander and Ferzan, Crime and Culpability, p. 78.

  30. Does ‘obvious risk’ turn this into a case of recklessness? Not according to the MPC definition, and not according to Cunningham recklessness. But according to Caldwell recklessness, yes; see note 12, above. Caldwell recklessness, however, had a fairly short life. Controversial from the start, Caldwell was overturned in 2003, in R v G and Another, UKHL 50.

  31. Does my characterization fly in the face of their stipulation that Sam and Ruth were justified? Yes, but that stipulation makes no sense dialectically—if they were justified, how is it an example of negligence?—and is moreover at odds with the facts of the example. Leaving a young child in a tub with the water running while going to the door to greet guests is not justified. See n. 28.

  32. See also David Dolinko’s remarks about this example in his review of Crime and Culpability, p. 97, as well as Andrew D. Leipold, “A Case for Criminal Negligence,” Law and Philosophy 29:4 (2010): 455–468; and Bandes, op. cit.

  33. As Dolinko observes, “If I forget that I’ve agreed to meet my wife for lunch, and go off instead with a group of colleagues, my wife would at best think it a bad joke if I claim that once the thought of our agreement was out of my mind, I ‘had no power to retrieve it’” (97).

  34. Hart, p. 151. As Hart notes, one might also come to this view by a different route: one might maintain that no one is ever responsible for anything. “[B]ut if anyone is ever responsible for anything, there is no general reason why men should not be responsible for such omissions to think, or to consider the situation and its dangers before acting” (pp. 151–152).

  35. See also Husak, op. cit.

  36. I say ‘apt’ rather than ‘true’ because it probably isn’t the case that he has absolutely no control; rather, he has little enough control that the expression is apt in his case, unlike in many cases where people say ‘I couldn’t help it’.

  37. See Hart, especially Section 5, where he emphasizes that “when negligence is made criminally punishable, this itself leaves open the question: whether, before we punish, both or only the first of the following two questions must be answered affirmatively:

    1. (i)

      Did the accused fail to take those precautions which any reasonable man with normal capacities would in the circumstances have taken?

    2. (ii)

      Could the accused, given his mental and physical capacities, have taken those precautions?” (p. 154).

  38. I.e., with the highest culpability level: purposefully. They may also defeat the mens rea, i.e., show that the defendant could not have had the required mens rea, but that is a separate matter from excusing.

  39. For more on control, see Garrath Williams, “Taking Responsibility for Negligence and Non-Negligence,” forthcoming in Criminal Law and Philosophy (this issue).

  40. See Hart, Sect. 3.

  41. Simester makes a similar point in “Can Negligence Be Culpable?” p. 89.

  42. MPC, 2.02 (2) (d).

  43. It is true that the MPC definitions of recklessness and negligence do not capture the difference I highlighted; the condition has to be met for recklessness, as well as for negligence. But although one might argue that the condition should not be required for recklessness, I think it is apt that it is (even though blame might well be warranted in some cases where it isn’t met). Including the requirement serves to clarify what sorts of risks are unjustifiable, where the issue is not whether one should be merely blamed for consciously disregarding the risk, but whether one has the mens rea of recklessness.

  44. See Simester, “Can Negligence Be Culpable?” pp. 92 and 104.

  45. For criticisms of what I am calling the “strict view,” criticisms that suggest that (among other things) the strict view can’t recognize different culpability levels, see A.P. Simester, “A Disintegrated Theory of Culpability,” in Dennis J. Baker and Jeremy Horder (eds.), The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams (Cambridge University Press, 2013), especially pp. 181–185.

  46. In her “Mens Rea” (Social Philosophy and Policy 7:2 (1990): 1–28)), Jean Hampton contrasts these two approaches, referring to them as the “negative account” and the “positive account” of mens rea.

  47. Some authors have taken the stand that the default is that one is not culpable; some have taken this stand in the context of criminal law, but I’m not sure they hold the position concerning culpability outside of that context. Gideon Rosen is in the first group. See his “Culpability and Duress: A Case Study,” Aristotelian Society Supplementary Volume 88:1 (2014): 69–90, p. 81. Andrew Simester and Findlay Stark are in the second. See Simester, “A Disintegrated Theory of Culpability” and Stark, Culpable Carelessness. Stark emphasizes throughout his book the need to “draw a clear, personalised link between the defendant and her wrongdoing” (p. 181 and elsewhere). Without that, we don’t have culpability (at least, not legal culpability), on his view. In this, he is following Simester: “The burden for ascribing culpability lies in justifying that evaluative link between act and defendant—that link which allows us to transmit judgments of the deed across to the person” (Simester, “A Disintegrated Theory of Culpability,” p. 180).

  48. Grim cases come to mind, e.g., the parent who, distracted by some change in his morning routine, forgets that the baby is in the backseat and that he is supposed to drop her off at the childcare center on his way to work; left for hours, she dies in the suffocating heat. We might well judge the parent blameworthy, believing that although the change in his routine (e.g., giving a friend a ride to the train station) helps to render his mistake more understandable, it does not excuse it.

  49. It seems inapt and cruel especially—but not only—if one endorses Rosen’s view that “blame essentially involves some measure of hostility—if not positive animus, then at least a sort of frostiness, some withdrawal of at least some of the good will that we normally extend to other people” (80). I in fact don’t endorse it; blame typically involves some measure of hostility, but not essentially, and not always. (This paragraph, and this footnote, overlap my “Culpability, Excuse, and the ‘Ill Will’ Condition,” Aristotelian Society Supplementary Volume 88:1 (2014): 91–109.)

  50. For a rich discussion of conditions under which blaming S is inappropriate despite S’s culpability, see Angela M. Smith, “On Being Responsible and Holding Responsible,” The Journal of Ethics (2007) 11: 465–484, esp. Sect. 4.

  51. But see Erin I. Kelly, The Limits of Blame (Harvard University Press, 2018), arguing that “the institutions of criminal punishment should not be in the business of blame” (14).

  52. John Gardner and Heike Jung, “Making Sense of Mens Rea: Antony Duff’s Account,” Oxford Journal of Legal Studies 11:4 (1991): 559–588. The quote is from p. 583, in a discussion in which they claim that Duff’s account gives “all intrinsic considerations absolute exclusionary force vis-à-vis all instrumental considerations” (584). I am endorsing what they say in the quoted passage, but take no stand on their claim about Duff’s account. The gist of what they say in the quote about the expressive importance of a judgment of criminal culpability has of course been asserted by many others, too, including Duff in several works, among them Trials and Punishments (Cambridge University Press, 1986); and “Penal Communications,” Crime and Justice 20 (1996): 1–97. See also Simester, “Can Negligence Be Culpable?”; Stark, Culpable Carelessness; and Tadros, Criminal Responsibility.

  53. Stark, Culpable Carelessness (Cambridge University Press, 2016).

  54. Hart, p. 157.

  55. Stark, p. 181.

  56. Ibid., p. 180, footnotes omitted. Also relevant is the following, from Stark’s introductory chapter: “Criminal conviction (and, for some, punishment) carries with it a personalised, and intentionally stigmatic, message of condemnation, aimed not only at censuring wrongdoing, but also at censuring citizens for having engaged in wrongdoing. From this communicative aspect of the criminal conviction, it follows that wrongdoing should reflect adequately on defendants to make such personal condemnation legitimate. Culpability judgements are the law’s means of drawing such meaningful connections between defendants and wrongdoing. Without them, the message of conviction would, it is submitted, be unwarranted and defamatory” (pp. 1–2).

  57. Stark indicates in his Introduction that the “basic understanding of culpability as insufficient concern for the interests of others will … be adopted in this book”; that understanding is no doubt part of the answer he’d give to my question.

  58. And perhaps also for crimes of a sort that until recently have only very sporadically been punished, or have been punished disproportionally lightly, e.g., violence against African Americans, domestic violence, and attacks on gays and lesbians.

  59. Stark, Chapter 8.

  60. Ibid., p. 9.

  61. Ibid., p. 225.

  62. I presented an early version of this paper in June 2018 at a workshop at the University of Reading on recklessness and negligence, and later versions at the 2019 Pacific Division meetings of the American Philosophical Association and at the University of Bayreuth (2019). I am grateful to discussants at these three events for their helpful feedback. Special thanks to Craig Agule, Christopher Cowley, Matt Matravers, Garrath Williams, and an anonymous reviewer for their incisive written comments. I would also like to thank my Fall 2018 seminar students at Indiana University for reading and discussing my paper with me.

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Appendix

Appendix

1.1 Model Penal Code: General Requirements of Culpability (2.02)

  1. (1)

    Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

  2. (2)

    Kinds of Culpability Defined.

  1. (a)

    Purposely.

A person acts purposely with respect to a material element of an offense when:

  1. (i)

    if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

  2. (ii)

    if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

  1. (b)

    Knowingly.

A person acts knowingly with respect to a material element of an offense when:

  1. (i)

    if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

  2. (ii)

    if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

  1. (c)

    Recklessly.

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

  1. (d)

    Negligently.

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

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Baron, M. Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide. Criminal Law, Philosophy 14, 69–89 (2020). https://doi.org/10.1007/s11572-019-09509-5

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