BOSTON UNIVERSITY SCHOOL OF LAW RESEARCH PAPER SERIES. PUBLIC LAW LEGAL THEORY RESEARCH PAPER NO 02-12 DIMENSIONS OF NEGLIGENCE IN CRIMINAL AND TORT LAW KENNETH W. SIMONS This paper can be downloaded without charge at The Boston University School of Law Working Paper Series Index http://www.bu.edu/law/faculty/papers The Social Science Research Network Electronic Paper Collection http://ssrn.com/abstractid=32340
BOSTON UNIVERSITY SCHOOL OF LAW RESEARCH PAPER SERIES, PUBLIC LAW & LEGAL THEORY RESEARCH PAPER NO. 02-12 DIMENSIONS OF NEGLIGENCE IN CRIMINAL AND TORT LAW KENNETH W. SIMONS This paper can be downloaded without charge at: The Boston University School of Law Working Paper Series Index: http://www.bu.edu/law/faculty/papers The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract_id=323401
Dimensions of Negligence in Criminal and Tort Law Kenneth W. Simons September 10, 2001 ntroduction lL. The standard tort conception of negligence: unreasonably risky conduct 4 Ill. The modern criminal law conception of negligence: unreasonable inadvertence and unreasonable mistake V. Comparing the standard tort and modern criminal law conceptions 10 v. A more complete picture of negligence in tort and criminal law 14 A. When criminal law employs a conduct conception of negligence B. When tort law employs a cognitive conception of negligence C. Other varieties of negligence VI. Distinct legal functions of the negligence concept A. Express the legal norm in the form of a standard rather than a rule B. Personify fault C. Empower the trier of fact to give content to the legal standard D. Create a secondary legal norm parasitic on a primary legal norm E. Distinguish grades of fault VIL. Conclusion M.L. Sykes Scholar and Professor of Law, Boston University School of Law. Prepared for the Cegla Law Instute for Comparative and Private International Law, Conference on Negligence in the Law, June 2001. Copyright@ 2001. All rights reserved. I thank Yisha Blank, Greg Keating, Gerald Leonard, Michael Moore, Ariel Porat, and Paul Robinson, as well as other participants at the conference, for their helpful suggestions. Gaston de los Reyes provided excellent research assistance as well as editorial advice
Dimensions of Negligence in Criminal and Tort Law by Kenneth W. Simons* September 10, 2001 I. Introduction ...............................................................................................................2 II. The standard tort conception of negligence: unreasonably risky conduct .................4 III. The modern criminal law conception of negligence: unreasonable inadvertence and unreasonable mistake.......................................................................................................6 IV. Comparing the standard tort and modern criminal law conceptions........................10 V. A more complete picture of negligence in tort and criminal law...............................14 A. When criminal law employs a conduct conception of negligence....................14 B. When tort law employs a cognitive conception of negligence .........................19 C. Other varieties of negligence...........................................................................22 VI. Distinct legal functions of the negligence concept...................................................27 A. Express the legal norm in the form of a standard rather than a rule ...............28 B. Personify fault..................................................................................................33 C. Empower the trier of fact to give content to the legal standard .......................39 D. Create a secondary legal norm parasitic on a primary legal norm ..................41 E. Distinguish grades of fault ...............................................................................46 VII. Conclusion...............................................................................................................54 * M.L. Sykes Scholar and Professor of Law, Boston University School of Law. Prepared for the Cegla Law Instute for Comparative and Private International Law, Conference on Negligence in the Law, June 2001. Copyright © 2001. All rights reserved. I thank Yishai Blank, Greg Keating, Gerald Leonard, Michael Moore, Ariel Porat, and Paul Robinson, as well as other participants at the conference, for their helpful suggestions. Gaston de los Reyes provided excellent research assistance as well as editorial advice
l. Introduction The law frequently employs a concept of "negligence. What does the concept mea This question can be explored from many perspectives. One perspective analyzes different ways of articulating the content of the standard-as a cost- benefit balance, or a judgment about "community values, or a version of the Golden Rule. Another, related perspective considers the normative foundations of a negligence requirement-as a utilitarian metric of personal fault, as an economic rule designed to induce optimal precautions, as a norm of fairness, or as a type of fault subject to retributive blame or to a corrective justice duty of repaIr. In this essay, I take a somewhat different perspective. What specific conceptions of negligence are recognized in the law? How do these conceptions relate to one another? And why does the law employ these varying conceptions? To illustrate some of the distinctions i have in mind consider the g propositions (A) Alon, through his dangerous driving, negligently creates an unreasonable risk of physical injury to Virgi (B) Boris, through his dangerous driving, negligently causes physical injury to (c) Claude negligently fails to foresee the risk of physical injury to virgil (D) David negligently drives his car (E) Edna, a surgeon, performs an operation during which her hand slips, negligently causing physical injury to Virgil For some thoughts on these issues, see Kenneth W. Simons, Negligence, 16 Soc. Phil 62(1999):Kenneth W. Simons, The Hand Formula in the Draft Restatement (Third)of Torts: Encompassing Fairness As Well as Efficiency Values, 54 Vand. L. Rev 901(2001) Simons, Dimensions of Negligence 8/7/02
I. Introduction The law frequently employs a concept of “negligence.” What does the concept mean? This question can be explored from many perspectives. One perspective analyzes different ways of articulating the content of the standard—as a costbenefit balance, or a judgment about “community values,” or a version of the Golden Rule. Another, related perspective considers the normative foundations of a negligence requirement—as a utilitarian metric of personal fault, as an economic rule designed to induce optimal precautions, as a norm of fairness, or as a type of fault subject to retributive blame or to a corrective justice duty of repair.1 In this essay, I take a somewhat different perspective. What specific conceptions of negligence are recognized in the law? How do these conceptions relate to one another? And why does the law employ these varying conceptions? To illustrate some of the distinctions I have in mind, consider the following propositions: (A) Alon, through his dangerous driving, negligently creates an unreasonable risk of physical injury to Virgil. (B) Boris, through his dangerous driving, negligently causes physical injury to Virgil. (C) Claude negligently fails to foresee the risk of physical injury to Virgil. (D) David negligently drives his car. (E) Edna, a surgeon, performs an operation during which her hand slips, negligently causing physical injury to Virgil. 1 For some thoughts on these issues, see Kenneth W. Simons, Negligence, 16 Soc. Phil. & Pol. 52 (1999); Kenneth W. Simons, The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness As Well as Efficiency Values, 54 Vand. L. Rev. 901 (2001). Page 2 of 57 Simons, Dimensions of Negligence 8/7/02
(F) Frank has sexual relations with Violet and makes a negligent mistake about her age, believing that she is eighteen when she is actually fifteen (G) George has sexual relations with Violet and is negligently inadvertent to her age: he forms no belief about her age and fails to realize that she is actually fifteen (H) Harriet, in using deadly force against Vanna, negligently fails to realize that Vanna is not threatening Harriet with deadly force Irma, in using deadly force against Vanna, lacks any definite beliefs about the severity of Vanna's threat, but negligently fails to control her impulse to respond to Vanna's attack with deadly force Now consider the following questions Is Claude's failure to foresee the risk of injury sufficient to show that he is negligent in the same sense as Alon or Boris? More generally: Are the conceptions of negligent inadvertence(e.g Claude. Ge and negligent mistake (e.g, Frank) essentially the same as the conception of negligent risk-creation(e.g, Alon, Boris)? Is the category of deficient skill (e.g. Edna) an instance of negligent risk-creation, or of negligent inadvertence or negligent mistake? Or is it a separate category altogether? knowingly drives her car, and Delbert, who "purposely drives his car. Normally, knowledge and purpose are considered more serious forms of culpability than negligence. Yet David is conclusively at fault, while Donna and Delbert are not. What explains this paradox Is negligent lack of self-control (e.g. Irma)a coherent form of negligence? In this essay, I will explore these questions, and others, concerning different dimensions or categories of negligence. The next section of the essay analyzes the standard tort conception of negligence as unreasonably risky conduct. The following section evaluates the modern criminal law conception of Simons, Dimensions of Negligence 8/7/02
(F) Frank has sexual relations with Violet and makes a negligent mistake about her age, believing that she is eighteen when she is actually fifteen. (G) George has sexual relations with Violet and is negligently inadvertent to her age: he forms no belief about her age and fails to realize that she is actually fifteen. (H) Harriet, in using deadly force against Vanna, negligently fails to realize that Vanna is not threatening Harriet with deadly force. (I) Irma, in using deadly force against Vanna, lacks any definite beliefs about the severity of Vanna’s threat, but negligently fails to control her impulse to respond to Vanna’s attack with deadly force. Now consider the following questions. • Is Claude’s failure to foresee the risk of injury sufficient to show that he is negligent in the same sense as Alon or Boris? • More generally: Are the conceptions of negligent inadvertence (e.g. Claude, George) and negligent mistake (e.g., Frank) essentially the same as the conception of negligent risk-creation (e.g., Alon, Boris)? If not, how do they differ? • Is the category of deficient skill (e.g. Edna) an instance of negligent risk-creation, or of negligent inadvertence or negligent mistake? Or is it a separate category altogether? • Compare David (above) with two new characters—Donna, who “knowingly drives her car,” and Delbert, who “purposely drives his car.” Normally, knowledge and purpose are considered more serious forms of culpability than negligence. Yet David is conclusively at fault, while Donna and Delbert are not. What explains this paradox? • Is negligent lack of self-control (e.g. Irma) a coherent form of negligence? In this essay, I will explore these questions, and others, concerning different dimensions or categories of negligence. The next section of the essay analyzes the standard tort conception of negligence as unreasonably risky conduct. The following section evaluates the modern criminal law conception of Page 3 of 57 Simons, Dimensions of Negligence 8/7/02
negligence as negligent inadvertence or negligent mistake. Subsequent sections compare the tort conduct conception and the criminal law cognitive conception and also introduce other varieties of negligence. Then, stepping back from these conceptions, I examine carefully five different functions that a legal negligence standard might serve. A conclusion identifies some misconceptions that the analysis refutes, and offers some final conjectures about whether, and how different views of the content and normative underpinnings of negligence would affect the analysis I believe that the comparative treatment of different conceptions of negligence can be quite illuminating, especially to scholars and judges familiar with tort doctrine but unfamiliar with criminal law, and vice versa. But the proof is in the pudding ll. The standard tort conception of negligence: unreasonably risky conduct Let us begin with what might be called the "standard" conception of negligence employed in tort law. Under this conception, negligence consists in creating an unreasonable risk of physical harm to another, a risk that the actor could and should have prevented by taking a precaution. The actor is considered to be at fault for not taking the precaution, although his fault is harm intending that the harm occur or believing thatthat harm is likely ?e risk of understood to be less serious than the fault of an actor who creates the See Draft Restatement(Third) of the Law, Torts: Liability for Physical Harm, Tent. Draft No. 1(March 28, 2001),$1, comments a, d [hereinafter, Draft Restatement(Third) of Torts]. The " intentional or knowing actor would be liable for a battery. Although damages for intentional torts and for torts of negligence are usually the same, the character of a tort as intentional rather than negligent makes punitive damages m readily available, often lessens the effect of victim fault under comparative fault principles, and might relax the rules of proximate cause. Id, $5, comment a However, we will see that the tort culpability hierarchy is more complex than the text implies, for a battery does not require intent to cause harm. See text at notes 113- 117= infra Simons, Dimensions of Negligence 8/7/02
negligence as negligent inadvertence or negligent mistake. Subsequent sections compare the tort conduct conception and the criminal law cognitive conception, and also introduce other varieties of negligence. Then, stepping back from these conceptions, I examine carefully five different functions that a legal negligence standard might serve. A conclusion identifies some misconceptions that the analysis refutes, and offers some final conjectures about whether, and how, different views of the content and normative underpinnings of negligence would affect the analysis. I believe that the comparative treatment of different conceptions of negligence can be quite illuminating, especially to scholars and judges familiar with tort doctrine but unfamiliar with criminal law, and vice versa. But the proof is in the pudding… II. The standard tort conception of negligence: unreasonably risky conduct Let us begin with what might be called the “standard” conception of negligence employed in tort law. Under this conception, negligence consists in creating an unreasonable risk of physical harm to another, a risk that the actor could and should have prevented by taking a precaution. The actor is considered to be at fault for not taking the precaution, although his fault is understood to be less serious than the fault of an actor who creates the risk of harm intending that the harm occur or believing that that harm is likely.2 2 See Draft Restatement (Third) of the Law, Torts: Liability for Physical Harm, Tent. Draft No. 1 (March 28, 2001), §1, comments a, d [hereinafter, Draft Restatement (Third) of Torts]. The “intentional” or “knowing” actor would be liable for a battery. Although damages for intentional torts and for torts of negligence are usually the same, the character of a tort as intentional rather than negligent makes punitive damages more readily available, often lessens the effect of victim fault under comparative fault principles, and might relax the rules of proximate cause. Id., §5, comment a. However, we will see that the tort culpability hierarchy is more complex than the text implies, for a battery does not require intent to cause harm. See text at notes 113- 117= infra. Page 4 of 57 Simons, Dimensions of Negligence 8/7/02
On the standard conception, the primary fault underlying a negligence claim is the actors failure to take a reasonable precaution against the risk of harm. To be sure, tort law demands compensation for negligently-caused harm and normally does not provide a remedy for negligence unless the negligence results in harm. Still, it is the negligent act that determines the actors fault. In other words, the state of affairs in which the negligent act does not occur is clearly preferable to that in which the actor negligently causes harm but pays The determination that an actor is negligent is made from an ex ant perspective, considering the foreseeable risks from the actor's conduct and the foreseeable benefits(in the form of risk-reduction) from the actors taking a precaution. Negligence depends on foresight, not hindsight; on the reasonably apparent state of the world at the time of the action at issue, not on the actual state of the world at that time. Moreover, although negligence necessarily involves risk-creation, negligence might or might not cause harm The standard conception treats negligence as an evaluative criterion, and as a conclusive judgment of fault. If an actor is negligent, then he should have acted differently. By creating an "unreasonable"risk of harm, or failing to take a reasonable" precaution against harm, he is necessarily unjustified in acting he did. And if harm follows, he will be liable in damages. By contrast knowingly"or "intentionally" creating a risk of harm, even a very high risk of harm, need not be an unjustified act. (Intentionally or knowingly harming a person can be justified by self-defense, for example. Put differently, lack of See Simons, The Hand Formula, supra note 1=, at 905. Accordingly, negligence liability (even in tort law) is best understood as a property rule, not a liability rule, insofar as the tortfeasor is not deemed entitled to cause harm so long as he pays. See Guido Calabresi A Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089(1972). Similarly, tort liability for negligence is better viewed as a sanction, not a price. Robert Cooter, Prices and Sanctions, 84 Colum L.Rev.1523,1538(1984) A qualification: actors are sometimes liable for negligent omissions even when they have not created the risk of harm ider parents' du children,s health and safety. )In such cases, the actor has a duty to use reasonable care to reduce the risk of harm Page 5 of 57 Simons, Dimensions of Negligence 8/7/02
On the standard conception, the primary fault underlying a negligence claim is the actor’s failure to take a reasonable precaution against the risk of harm. To be sure, tort law demands compensation for negligently-caused harm, and normally does not provide a remedy for negligence unless the negligence results in harm. Still, it is the negligent act that determines the actor’s fault. In other words, the state of affairs in which the negligent act does not occur is clearly preferable to that in which the actor negligently causes harm but pays compensation.3 The determination that an actor is negligent is made from an ex ante perspective, considering the foreseeable risks from the actor’s conduct and the foreseeable benefits (in the form of risk-reduction) from the actor’s taking a precaution. Negligence depends on foresight, not hindsight; on the reasonably apparent state of the world at the time of the action at issue, not on the actual state of the world at that time. Moreover, although negligence necessarily involves risk-creation,4 negligence might or might not cause harm. The standard conception treats negligence as an evaluative criterion, and as a conclusive judgment of fault. If an actor is negligent, then he should have acted differently. By creating an “unreasonable” risk of harm, or failing to take a “reasonable” precaution against harm, he is necessarily unjustified in acting as he did. And if harm follows, he will be liable in damages. By contrast, “knowingly” or “intentionally” creating a risk of harm, even a very high risk of harm, need not be an unjustified act. (Intentionally or knowingly harming a person can be justified by self-defense, for example.) Put differently, lack of 3 See Simons, The Hand Formula, supra note 1=, at 905. Accordingly, negligence liability (even in tort law) is best understood as a property rule, not a liability rule, insofar as the tortfeasor is not deemed entitled to cause harm so long as he pays. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972). Similarly, tort liability for negligence is better viewed as a sanction, not a price. Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523, 1538 (1984). 4 A qualification: actors are sometimes liable for negligent omissions even when they have not created the risk of harm. (Consider parents’ duties with respect to their children’s health and safety.) In such cases, the actor has a duty to use reasonable care to reduce the risk of harm. Page 5 of 57 Simons, Dimensions of Negligence 8/7/02
justification is built into the very concept of negligence; but it is not part of the concept of knowingly or intentionally harming another In principle, one could break down the analysis of unjustifiable risk creation into two issues(1)the significance of the risk created; and(2)the justifiability of creating that risk(which we might also characterize as the burden of taking a precaution against that risk). The law could then explicitly develop a range of standards: creating a trivial risk of a trivial harm requires only a slight justification; creating a more significant risk of a trivial harm requires a more weighty justification; creating a significant risk of a more significant harm requires an even more weighty justification; and so forth. But the tort conception of negligence instead ordinarily employs a single standard, with a sliding scale: the justification for imposing a risk must ordinarily be weightier as the probability and severity of the harm risked increases. Only when the significance of the risk reaches a relatively high level, and the actor is aware of a relatively high level of risk or intends to cause harm, does the"sliding-scale negligence test give way to the qualitatively different standards for reckless and intentional torts Ill. The modern criminal law conception of negligence: unreasonable inadvertence and unreasonable mistake Although the standard tort conception understands negligence as unreasonably unsafe conduct, modern criminal law emphasizes a different cognitive conception of negligence--namely, the actors unreasonable inadvertence or unreasonable mistake. Criminal law employs other conceptions of negligence as well, but it will prove useful to characterize this cognitive conception as the"modern criminal law conception before introducing further complexity See Simons, Negligence, supra note 1=, at 56-57; Dan Dobbs, The Law of Torts sS26 See Draft Restatement (Third) of Torts, supra note 2=, s$1, 2 I describe this as the "modern"criminal law conception because the influential Model nal criminal law doctrine, by contrast, does not employ or emphasize any single conception of negligence. Instead, it contains a variety of doctrines that could be broadly classified as involving negligence-including Simons, Dimensions of Negligence 8/7/02
justification is built into the very concept of negligence; but it is not part of the concept of knowingly or intentionally harming another. In principle, one could break down the analysis of unjustifiable riskcreation into two issues—(1) the significance of the risk created; and (2) the justifiability of creating that risk (which we might also characterize as the burden of taking a precaution against that risk). The law could then explicitly develop a range of standards: creating a trivial risk of a trivial harm requires only a slight justification; creating a more significant risk of a trivial harm requires a more weighty justification; creating a significant risk of a more significant harm requires an even more weighty justification; and so forth. But the tort conception of negligence instead ordinarily employs a single standard, with a sliding scale: the justification for imposing a risk must ordinarily be weightier as the probability and severity of the harm risked increases.5 Only when the significance of the risk reaches a relatively high level, and the actor is aware of a relatively high level of risk or intends to cause harm, does the “sliding-scale” negligence test give way to the qualitatively different standards for reckless and intentional torts.6 III. The modern criminal law conception of negligence: unreasonable inadvertence and unreasonable mistake Although the standard tort conception understands negligence as unreasonably unsafe conduct, modern criminal law emphasizes a different, cognitive conception of negligence—namely, the actor’s unreasonable inadvertence or unreasonable mistake. Criminal law employs other conceptions of negligence as well, but it will prove useful to characterize this cognitive conception as “the” modern criminal law conception before introducing further complexity. 7 5 See Simons, Negligence, supra note 1=, at 56-57; Dan Dobbs, The Law of Torts §§26, 27 (2000). 6 See Draft Restatement (Third) of Torts, supra note 2=, §§1, 2. 7 I describe this as the “modern” criminal law conception because the influential Model Penal Code emphasizes this conception. Traditional criminal law doctrine, by contrast, does not employ or emphasize any single conception of negligence. Instead, it contains a variety of doctrines that could be broadly classified as involving negligence—including Page 6 of 57 Simons, Dimensions of Negligence 8/7/02
Cognitive negligence, or negligence in relation to beliefs, has two basic forms. An actor might be unreasonably ignorant or inadvertent in failing to form any belief about a relevant matter, when he should have formed a belief (Consider George above. )Or the actor might form a definite belief, but that belief might be unreasonably mistaken. (Consider Frank, above. )I will use the term cognitive negligence for both negligent inadvertence(when the actor unreasonably fails to advert to a risk or to an existing fact) and negligent mistake (when the actor forms the unreasonable and incorrect belief that the risk or fact does not exist). In either case, the actor is negligent for not forming a belief that he reasonably should have formed. 9 The highly influential Model Penal Code emphasizes a cognitive conception of negligence. Under the Code, negligence is the least"culpable" category of four " culpability terms. In order of increasing "culpability, with higher punishment potentially warranted for each increment, the categories are negligence, recklessness, knowledge, and purpose. In essence, a negligent general intent, mistake of fact, the mens rea for manslaughter, and requirements of self-defense 8 Or consider Claude: suppose he switched lanes on a highway without considering the possibility that someone was in his blind spot, and thus without realizing that his action posed a substantial risk of harm Inadvertence" and"mistake" are two basic categories of cognitive deficiency, i.e. of the actor failing to form a belief that he should have formed. But other categories also exist, such as agnosticism. See Simons, Rethinking Mental States, 72 B U. L. Rev. 463, 540 (1992) The Israeli Criminal Code appears to be similar in this respect Negligence means unawareness of the nature of the act, of the existence of the circumstances or of the possibility of consequences of the act being brought about, such nature, circumstances and consequences being ingredients of the offence, when a reasonable person could, in the circumstances of the case, have been aware of it Israeli Penal Code $21(a)(1995)(unauthorized English translation), reported at 30 Israel L. Rev. 1, 14(1996). However, a proviso to this section acknowledges a"conduct negligence requirement as Provided that he possibility of the consequences being brought is not a reasonable risk Page 7 of 57 Simons, Dimensions of Negligence 8/7/02
Cognitive negligence, or negligence in relation to beliefs, has two basic forms. An actor might be unreasonably ignorant or inadvertent in failing to form any belief about a relevant matter, when he should have formed a belief. (Consider George above.8 ) Or the actor might form a definite belief, but that belief might be unreasonably mistaken. (Consider Frank, above.) I will use the term “cognitive negligence” for both negligent inadvertence (when the actor unreasonably fails to advert to a risk or to an existing fact) and negligent mistake (when the actor forms the unreasonable and incorrect belief that the risk or fact does not exist). In either case, the actor is negligent for not forming a belief that he reasonably should have formed.9 The highly influential Model Penal Code emphasizes a cognitive conception of negligence.10 Under the Code, negligence is the least “culpable” category of four “culpability” terms. In order of increasing “culpability,” with higher punishment potentially warranted for each increment, the categories are negligence, recklessness, knowledge, and purpose. In essence, a negligent general intent, mistake of fact, the mens rea for manslaughter, and objective requirements of self-defense. 8 Or consider Claude: suppose he switched lanes on a highway without considering the possibility that someone was in his blind spot, and thus without realizing that his action posed a substantial risk of harm. 9 ”Inadvertence” and “mistake” are two basic categories of cognitive deficiency, i.e., of the actor failing to form a belief that he should have formed. But other categories also exist, such as agnosticism. See Simons, Rethinking Mental States, 72 B.U. L. Rev. 463, 540 (1992). 10 The Israeli Criminal Code appears to be similar in this respect: Negligence means unawareness of the nature of the act, of the existence of the circumstances or of the possibility of consequences of the act being brought about, such nature, circumstances and consequences being ingredients of the offence, when a reasonable person could, in the circumstances of the case, have been aware of it … Israeli Penal Code §21(a) (1995) (unauthorized English translation), reported at 30 Israel L. Rev. 1, 14 (1996). However, a proviso to this section acknowledges a “conduct negligence” requirement as well: Provided that – … (b) the possibility of the consequences being brought is not a reasonable risk. Page 7 of 57 Simons, Dimensions of Negligence 8/7/02
actor is one who should be aware of an unjustifiable risk; the reckless actor is aware of an unjustifiable risk but nevertheless takes it; the knowing actor is aware that a harmful result is practically certain to occur, or that an incriminating circumstance very probably exists; and the purposeful actor has the conscious object of achieving the result. 2 Why does the Code largely employ a cognitive conception of negligence? For two basic reasons first the code drafters wanted to ensure that some form of "conscious"wrongdoing would normally be required for criminal liability Doctrinally, they accomplished this by providing that "recklessness, rather than negligence, is the presumptive minimum culpability term for every material element of every crime. 3 Accordingly, recklessness is defined (in part)as awareness that a harm may ensue or that an incriminating circumstance might obtain At the same time, negligence is understood negatively, as a form of culpability in which the actor lacks such awareness. (Indeed, the only difference between negligence and recklessness under the Code is this difference in awareness.) Second, the drafters wanted negligence to fit within a structured 1 Model Penal Code $2.02(2)(d)(ALl 1985)(hereinafter"MPC"). Importantly, however, the mPC defines criminal negligence as a gross deviation from reasonable conduct; thus criminal negligence is a species of what tort law would call "gross"negligence, not ordinary negligence. Also, MPC negligence presupposes that the actor should have been aware of a"substantial risk of harm. I put aside for purposes of this article, the nteresting question whether this substantiality requirement (common to the MPC definitions of both negligence and recklessness) should be understand as an independent requirement, or instead as just an aspect of unjustifiability. See Larry Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 CaL. L Rev.931,933935(2000) MPC, $2.02(2). Note two qualifications. First, the meaning of these culpability terms differs somewhat when they pertain to a circumstance element of an offense, rather thai a result element. Second, the MPc strongly disfavors strict criminal liability, or liability in the absence of any form of culpability. MPC $2.05 §202(3) Specifically, MPC "recklessness"requires that the actor be aware of a substantial risk of a relevant harm occurring or circumstance existing. MPC, $2.02 (2)(c) It need not have been so. Criminal recklessness could be distinguished from criminal negligence not according to consciousness of risk, but according to the actor,s greater Simons, Dimensions of Negligence 8/7/02
actor is one who should be aware of an unjustifiable risk11; the reckless actor is aware of an unjustifiable risk but nevertheless takes it; the knowing actor is aware that a harmful result is practically certain to occur, or that an incriminating circumstance very probably exists; and the purposeful actor has the conscious object of achieving the result.12 Why does the Code largely employ a cognitive conception of negligence? For two basic reasons. First, the Code drafters wanted to ensure that some form of “conscious” wrongdoing would normally be required for criminal liability. Doctrinally, they accomplished this by providing that “recklessness,” rather than “negligence,” is the presumptive minimum culpability term for every material element of every crime. 13 Accordingly, recklessness is defined (in part) as awareness that a harm may ensue or that an incriminating circumstance might obtain.14 At the same time, negligence is understood negatively, as a form of culpability in which the actor lacks such awareness. (Indeed, the only difference between negligence and recklessness under the Code is this difference in awareness.15) Second, the drafters wanted negligence to fit within a structured 11 Model Penal Code §2.02(2)(d) (ALI 1985) (hereinafter “MPC”). Importantly, however, the MPC defines criminal negligence as a gross deviation from reasonable conduct; thus, criminal negligence is a species of what tort law would call “gross” negligence, not ordinary negligence. Also, MPC negligence presupposes that the actor should have been aware of a “substantial” risk of harm. I put aside, for purposes of this article, the interesting question whether this substantiality requirement (common to the MPC definitions of both negligence and recklessness) should be understand as an independent requirement, or instead as just an aspect of unjustifiability. See Larry Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 Cal. L. Rev. 931, 933-935 (2000). 12 MPC, §2.02(2). Note two qualifications. First, the meaning of these culpability terms differs somewhat when they pertain to a circumstance element of an offense, rather than a result element. Second, the MPC strongly disfavors strict criminal liability, or liability in the absence of any form of culpability. MPC §2.05. 13 MPC, §2.02(3). 14 Specifically, MPC “recklessness” requires that the actor be aware of a substantial risk of a relevant harm occurring or circumstance existing. MPC, §2.02(2)(c). 15 It need not have been so. Criminal recklessness could be distinguished from criminal negligence not according to consciousness of risk, but according to the actor’s greater Page 8 of 57 Simons, Dimensions of Negligence 8/7/02
hierarchy of mental states or culpability terms, under which higher forms of culpability within the hierarchy correspond to more serious crimes. (As we will later see, however, the cognitive conception only imperfectly achieves either of these objectives. One straightforward example of the role of the cognitive conception in the Code hierarchy is the law of homicide. Purposely or knowingly causing a death is murder, the most serious form of homicide; recklessly causing a death is manslaughter; and negligently causing a death is negligent homicide, the least serious form of homicide. 6 Thus, if an actor causes death and is grossly negligent in lacking awareness of a substantial and unjustifiable risk of death, he has committed negligent homie the Code hierarchy, a legislature could differentiate three different degrees of rape according to the actor's culpability with respect to the critical circumstance element, the victim's nonconsent. A defendant who had sexual intercourse with the victim knowing that she did not consent might, for example, be guilty of first degree rape: a defendant who was reckless as to her nonconsent might be guilty of second degree rape; and a defendant who was negligent as to her nonconsent might be guilty of a third degree. Thus, an actors beliefs can be ordered in a hierarchy both when the indifference to risk or her more seriously culpable reasons for creating an unjustifiable risk. (One example of the latter approach is the usual doctrinal presumption, even in the MPC, that an intoxicated actor is legally "reckless"even if he is in fact unaware of the relevant risk is an example of such a distinction ) Similarly, it is plausible to treat an actor as "reckless" if she is actually aware of a very slight risk and should have inferred that the risk was substantial; but the Code apparently would treat such an actor as only negligent, since she lacks actual awareness of a substantial risk. Insofar as non-Code criminal law doctrine distinguishes recklessness from negligence, it sometimes uses a criterion other than awareness of a substantial risk. See Joshua Dressler, Understanding Criminal Law S10.04[D][3](3d. ed, LEXIS 2001)(formerly recklessness was on a continuum, together with criminal negligence and civil negligence, based on degree of risk); id, $10.07[B] 3 (MPC influenced transformation of recklessness-negligence distinction from degree of risk to awareness); Wayne R. LaFave, Criminal Law $3.7 n. 6(3rd ed, West 2000) (recklessness has been distinguished from negligence variously by degree of risk awareness of risk, or both) 6MPC§9210.2,2103,210.4 Simons, Dimensions of Negligence 8/7/02
hierarchy of mental states or culpability terms, under which “higher” forms of culpability within the hierarchy correspond to more serious crimes. (As we will later see, however, the cognitive conception only imperfectly achieves either of these objectives.) One straightforward example of the role of the cognitive conception in the Code hierarchy is the law of homicide. Purposely or knowingly causing a death is murder, the most serious form of homicide; recklessly causing a death is manslaughter; and negligently causing a death is negligent homicide, the least serious form of homicide.16 Thus, if an actor causes death and is grossly negligent in lacking awareness of a substantial and unjustifiable risk of death, he has committed negligent homicide. Similarly, consistent with the Code hierarchy, a legislature could differentiate three different degrees of rape according to the actor’s culpability with respect to the critical circumstance element, the victim’s nonconsent. A defendant who had sexual intercourse with the victim knowing that she did not consent might, for example, be guilty of first degree rape; a defendant who was reckless as to her nonconsent might be guilty of second degree rape; and a defendant who was negligent as to her nonconsent might be guilty of a third degree. Thus, an actor’s beliefs can be ordered in a hierarchy both when the indifference to risk or her more seriously culpable reasons for creating an unjustifiable risk. (One example of the latter approach is the usual doctrinal presumption, even in the MPC, that an intoxicated actor is legally “reckless” even if he is in fact unaware of the relevant risk is an example of such a distinction.) Similarly, it is plausible to treat an actor as “reckless” if she is actually aware of a very slight risk and should have inferred that the risk was substantial; but the Code apparently would treat such an actor as only negligent, since she lacks actual awareness of a substantial risk. Insofar as non-Code criminal law doctrine distinguishes recklessness from negligence, it sometimes uses a criterion other than awareness of a substantial risk. See Joshua Dressler, Understanding Criminal Law §10.04[D][3] (3d. ed., LEXIS 2001) (formerly recklessness was on a continuum, together with criminal negligence and civil negligence, based on degree of risk); id., §10.07[B][3] (MPC influenced transformation of recklessness-negligence distinction from degree of risk to awareness); Wayne R. LaFave, Criminal Law §3.7 n. 6 (3rd ed., West 2000) (recklessness has been distinguished from negligence variously by degree of risk, awareness of risk, or both). 16 MPC §§210.2, 210.3, 210.4. Page 9 of 57 Simons, Dimensions of Negligence 8/7/02
