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 8/7/02hierarchy 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