Proximate cause in Michael Moore's 'Act and Crime.' (Symposium: Act & Crime)

• Author: Katz, Leo

I.

The object of this essay is to take issue not with what Michael Moore has to say about the nature of the criminal act, but with some of what he says about the relationship of that act to the other elements of a crime, most notably the requirement of proximate causation. Moore's conception of that relationship emerges with particular clarity in his discussion of what he calls "Some Critical Legal Silliness about the Act Requirement."(1) Indeed, he says the only reason for even bothering to dispose of that "silliness" is that doing so affords us a clearer view of the precise role the act requirement plays within the context of the entire offense.(2)

The silliness in question is Mark Kelman's point that the act requirement "is vacuous in the sense that the requirement can be manipulated to yield whichever result one wants."(3) To understand both Kelman's point and Moore's criticism of it, consider the two cases which both Kelman and Moore use to state their positions: People v. Decina(4) and Martin v. State.(5) In each case the defendant tried to defend on the grounds that he had not committed a voluntary act, but only in the latter case did this defense persuade the court.(6) Decina involved an epileptic who, while driving his car, had a seizure and ran over several young children.(7) He was charged with manslaughter.(8) He argued that since he did not commit a voluntary act when he ran the victims over, he could not be convicted.(9) The court, however, focused on the fact that the defendant had committed a voluntary act when he stepped into his car, and rejected his argument.(10) Martin involved an intoxicated man who, for reasons not revealed in the opinion, was arrested and taken out of his home, to which he reacted by firing off a fusillade of profanities.(11) Because of his "boisterous ... conduct ... and profane discourse," he was charged with the crime of being drunk in public.(12) He defended on the grounds that he did not voluntarily go out in public but had been taken there by the police; therefore, he claimed, the act requirement was not met.(13) This time the court accepted the defense.(14)

Kelman argues that the courts' application of the act requirement in these cases is plainly capricious.(15) In Decina, the court engaged in what he calls "broad time-framing": it looked beyond the mere moment at which the defendant actually ran someone over and took account of his conduct just prior to the accident, namely his stepping into the car to drive.(16) Stepping into the car, the court reasoned, did not occur during an epileptic seizure and therefore met the voluntary act requirement.(17) In Martin, the court merely looked at the moment at which the defendant was taken out of his home. Being forcibly taken out of his home was not a voluntary act, the court reasoned, and therefore Martin's conviction violated the voluntary act requirement.(18) Nothing, says Kelman, would have prevented the court from focusing only on the moment of injury in Decina and finding that there was no voluntary act in that case, or from focusing on the defendant's decision to drink in Martin and finding that there was a voluntary act in that case after all.(19)

Moore says there really is no time-framing problem at all. Kelman just doesn't understand how the act requirement fits with the other elements of an offense.

If there were a |time-framing' choice to be made in criminal cases,

Kelman is right in his observation that there would be no principled

way to make it. But where did Kelman get his assumption

that there is such a choice to be made? Every competent teacher

of elementary criminal law that I know teaches the act requirement

in the following way: if, from the big bang that apparently began

this show to the heat death of the universe that will end it, the

court can find a voluntary act by the defendant, accompanied at

that time by whatever culpable mem rea that is required, which act

in fact and proximately causes some legally prohibited state of

affairs, then the defendant is prima facie liable for that legal harm.

There is no |time-framing' choice here. If there is any point in

time where the act and mens rea requirements are simultaneously

satisfied, and from which the requisite causal relations exist to

some legally prohibited state of affairs, then the defendant is

prima facie liable. The presupposition of Kelman's entire analysis

is simply (and obviously) false.

Consider Decina again. The New York court rightly decided

that Decina's bodily movements at the time of the accident were

not acts, and that Decina's movements beginning to drive were

acts. The court did not, however, arbitrarily focus on the earlier

time because it had arbitrarily chosen a broad time-frame in which

to look for a voluntary act. Rather, the court looked at all possible

times and found one where Decina not only acted (in beginning to

drive) but did so recklessly (in light of prior seizures he was aware

of the risk to others posed by his driving), which reckless act

caused the victim's death.(20) As to the Martin case, Moore writes:

Kelman thinks that the ... court could justify its decision (of no

voluntary act by Martin) only by |narrow time-framing'; for a broad

time-framing would reveal earlier acts by Martin that were

voluntary, namely, the taking of drinks. What Kelman overlooks

is that those earlier acts by Martin were not the proximate cause

of his being drunk in public. The police officers' intentional

placing of Martin in a public place constitutes an intervening cause

on anyone's reading of that notion, making Martin not a proximate

cause of the legally prohibited state of affairs.(21)

The most crucial point in all of this, the one that propels the rest of the analysis forward, is Moore's assertion that in applying the act requirement the court is to do the following: find a moment sometime between the big bang and the heat death of the universe at which the defendant engaged in a voluntary act, did so with the right kind of mens rea, and thereby proximately caused the harm prohibited by the statute. Plausible though this picture is, I believe it is not correct. In particular, I shall argue that what is amiss with it is this: just because a defendant has committed an act with the requisite mens rea (which is neither justified nor excused), and that act is proximately connected with the harm the statute forbids him from bringing about, does not mean he is guilty under that statute. What's more, even in cases in which the defendant is guilty, we would be wrong to focus too heavily on the mens rea-accompanied act proximately causing the statutory harm, as we decide on the extent of the defendant's blameworthiness.

To put the matter slightly less abstractly, there are plenty of cases in which a defendant commits an act proximately (and intentionally) causing death, but is not liable for any kind of homicide. (Note: I am not assuming that any justification or excuse is available.) And in those cases in which he really is guilty of some kind of homicide, the mens rea accompanying the act proximately causing death is not the crucial determinant of the wickedness of the homicide.

In the next Section, I shall offer a series of such examples in which a defendant proximately causes harm by an act that is accompanied by the required kind of mens rea but is nonetheless not guilty of anything. Each of the examples is vulnerable to various challenges. But, rather than dealing with those challenges, I shall simply let the cumulative impact of the examples do its work and, in the Section following, offer a more general argument as to why examples like these are bound to exist in a criminal law system that is not out-and-out utilitarian. In the final Section I shall revisit cases like Decina and propose an alternative analysis to Moore's.

II.

What follows, then, are my examples of defendants who commit intentional acts proximately causing a forbidden state of affairs, for which they cannot be held liable.

(1) In their article Ducking Harm,(22) two philosophers, Christopher Boorse and Roy Sorensen, offer a series of startling examples to illustrate the dramatically different treatment we accord deaths caused by (what they call) "ducking" and deaths caused by (what they call) "shielding." Their essay opens with a joke that captures the distinction especially memorably:

[T]wo campers, Alex and Bruce, meet a ravenous bear. As Alex

grabs his...