Culpability and Modern Crime
Citation: 103 Geo L.J. 547 (2015)
Criminal law has developed to prohibit new and subtler forms of intrusion on the autonomy of others, including freedom of thought and decision. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to turn on similar concepts about autonomy, such as when reforms in the law of sexual assault make consent almost exclusively material. These projects can be laudable. But such progressive programs in substantive criminal law also raise difficult problems of culpability. Legal lines must be specified with reference to actors’ mental states relative to each other and with reference to conduct that is embedded within socially welcome activities. The result is that legal institutions struggle in borderline cases to locate sufficient fault to satisfy the demands of justification for punishment. This Article demonstrates this problem through exploration of the modern law of each of these example offenses—fraud, extortion, bribery, and sexual assault. To address the problem of borderline culpability, the Article turns to criminal law theory, finding a connection between culpability and the principle of notice in criminal law. Rather than its absence serving to exculpate, one can understand notice as serving to inculpate. To manage the problem of culpability in modern crime, the Article concludes, legal institutions should attend more explicitly—in both criminalization and adjudication—to the questions of whether the actor was aware of the normative wrongfulness of her conduct and, if not, whether punishment is justified on a negligence level of fault.