Criminalizing Endangerment

Author:R. A. Duff

I. Attacks and endangerments . II. Distinguishing attacks from endangerments . A. Intended Endangerment. B. 'Oblique' Intention. III. Criminalizing endangerment . A. Consummate v Nonconsummate Offenses . C. Explicit v Implicit Offenses. D. Direct v Indirect Offenses.


    Grateful thanks are due to the Leverhulme Trust, for the Research Fellowship during which I wrote this paper; to participants in the Baton Rouge Workshop, and in seminars at Ohio State University and the University of Stirling, at which I tried out earlier drafts; and to Marcelo Ferrante, Stuart Green, Jeremy Horder, Ken Simons and Leo Zaibert for detailed written comments. They will recognize their influence in what follows; they will also recognize that the remaining errors and confusions are all mine. This paper is also being published by Oxford University Press in: Defining Crimes: Essays on the Special Part of the Criminal Law, edited by R. A. Duff and Stuart Green . Thanks are due to the Press for permission to publish the paper here as well.

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I Attacks and endangerments

Some crimes (types or tokens) consist in attacks on legally protected interests. If I shoot at you, intending to injure you; or start a fire, intending to damage your property; or lie to you, intending to obtain money from you: I attack your interests in physical integrity, in property, in not being harmfully deceivedCattacks against which the criminal law protects you. If my attack is successfully consummated, I am (absent a further defense) guilty of wounding with intent, of arson, or of obtaining by deception.1 If my attack is unconsummated, I am guilty of attempting to commit one of those crimes; attempts are attacks that fail.2 Page 942

Other crime types or tokens consist in endangering rather than attacking legally protected interests. If, without intending harm, I act in a way that I realize might injure you or damage your property, I endanger your physical security or property; if, without intending to deceive, I tell you that a certain bank is financially secure, realizing that my statement might be false and might induce you to open an account with that bank, I endanger your interest in having accurate financial information to act upon. The criminal law protects these interests against such endangerments. If the endangerment is consummatedCyou are injured, your property is damaged, or my statement is falseCI might be guilty of wounding, of criminal damage, or of fraudulent inducement to make a deposit.3 If the endangerment is not consummated, I might or might not be guilty of an offense, since English and American law have no general offense of unconsummated endangerment analogous to that of unconsummated attack. The Model Penal Code (' 211.2) could convict me of 'reckless endangerment' if I risked causing you serious physical injury, but English law could convict me only if I endangered you in one of the specific ways that are criminalized.4

Neither system criminalizes endangering property as such, although I could be guilty if I endangered it by, for instance, causing an explosion or starting a fire.5 In neither system is it normally criminal to make a statement that I realize might be false, unless it actually is false or misleading.6

My primary interest is in the ways in which endangerment is, or should be, criminalized. However, we must first attend (in ' 2) to the distinction between attacks and endangerments, as two distinct types of criminal wrong, before turning (in ' 3) to the structure and scope of endangerment offenses. Page 943

II Distinguishing attacks from endangerments

An attack is an action or omission that is intended to harm some value or interest. I can attack your body by trying to injure you; your tangible property by trying to steal or damage it; your reputation by slandering you; your intellectual property by plagiarizing your work. Attacks need not, however, be directed against particular people: they can be indiscriminate, aimed at whoever happens to be in their way; they can be aimed at institutions or practices, or even at more abstract values, as when we call propaganda an attack on truth.

Both harm-intending mens and harm-threatening actus are necessary for an attack. Firing a gun might endanger V, but it attacks V only if it is intended to harm V. To form an intention to harm V, however, or to make preparations to actualize that intention, is not yet to attack V: the attacker must progress beyond the 'merely preparatory', to be 'in the process of committing' the attack;7 and his actions must engage appropriately with the world.8 Page 944

A certain hostility toward its object is intrinsic to an attack. It need not be motivated by hatred: a contract killer or a fraudster might feel no such animus toward their victims. Their actions, however, manifest a practical hostility toward the interests or people they attack, in that those actions are aimed against those people and their interests;9 their intentional structure is determined by the harm that they are to cause. One who intends what would normally count as harm might deny that her action is in this sense hostile: someone who commits voluntary euthanasia might argue that her action manifests the compassion that motivates it; someone engaged in consensual sado-masochism might claim that his actions display the mutual respect, and concern for each other's pleasure, that structure this sexual encounter. What such people deny, however, is that their actions constitute attacks, because they deny that what they intend constitutes harm (just as a surgeon would deny that the amputation she carries out constitutes an attack, since it is intended to benefit rather than to harm the patient). There is of course room for disagreement in such cases, and others would insist that such actions still constitute wrongful attacks: in the case of euthanasia, on the person killed (taking the right to life to be inalienable) or on the more abstract value of life; in the case of sado-masochism, on the person's 'real' interests, or on some value that the person embodies.10 This, however, would be to argue that what these agents intend does constitute harm, and that their actions do manifest practical hostility toward the interests or values against which they are now seen as directed. Such examples show, not that attacks are not by definition hostile actions that are intended to do harm, but that there can be normative disagreement about what counts as an attack.

Attacks typically endanger their objects: in attacking V, I create a risk that she will suffer the harm I am trying to do her. However, I can endanger V without attacking her, and our concern here is with endangerments that do not constitute attacks: 'endangerment' will hereafter mean 'endangerment that is not an attack'. Our concern is also with endangerment as something that human agents do. Many dangers, including some arising from human beings, involve no human agency. There is a danger that visitors to my sickbed will catch my infectious disease, but I am not endangering them, unless I am failing to do something that I should do to protect themCsuch as isolating myself. If I am a kind of person who is likely to commit crimes of violence, I might be called dangerous, and risk-fearing governments might look for ways of controlling or incapacitating Page 945 me:11 but I endanger others only if and when I begin to actualize my dangerous disposition in violent action. Page 946

I endanger another if by act or omission I create a significant risk that he will suffer harm (a risk is 'significant' if it provides a reason against acting as I do, or for taking precautions in acting thus). If the risk is not actualized, I merely endanger him; if it is actualized, I endanger him and harm him. I endanger him whether or not I realize, or could reasonably be expected to realize, the risk that I create: while mens rea is necessary for an attack, endangerment need involve only an actus reusCan act or omission that actually creates a suitable risk. Criminal liability for endangerment can therefore be strict: I can be guilty of an endangerment offense even if I did not (and could not reasonably have been expected to) realize the risk I created.12 If, however, criminal liability should depend on fault, and we ask what species of fault could justly make an agent criminally liable for the danger she creates, we will naturally think not of an intention to do harm, but of recklessness as the paradigm of fault, and of indifference (rather than hostility) to the threatened interests as the practical attitude that culpable endangerment displays. Someone who culpably endangers others does not thereby display an active hostility toward them; but in her willingness to take the risk of harming them, and her failure to take adequate precautions against doing so (or even to notice the risk she is creating), she shows that she does not care as she should for their interests.

Given this distinction between attack and endangerment, we can see how they constitute two distinct types of criminal wrong, with different internal structures. One consists in an attack on some legally protected interestCan action structured by the intention to harm that interest, displaying practical hostility toward it. The other consists in a failure of proper concern. I fail to take proper steps to avoid, or even to notice, the danger that my conduct creates, and thus take the risk that I will cause harm to others: but that harm is not the object of my action; rather, it is a side-effect that I fail to care about as I should. If I attack someone, the non-occurrence of the harm that I intend marks the failure of my actionCthat is why the action displays hostility to its victim. If I merely endanger them, however, the non-occurrence of the prospective harm does not mark the failure of my action: it might even be a source of relief for meCwhereas one who...

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