Post No.: 0813
We could take a step back and question a broader assumption in law – should the intention of committing a crime matter at all or just the fact of the act itself? Absolute liability offences require absolutely no consideration of deliberate intention or a guilty mind, but should all crimes be adjudicated this way?
So the question is how shall inadvertent, accidental or unintentional actions be considered in relation to the issue of responsibility from both a moral and legal perspective? Should you ever be held responsible for something you didn’t mean to do? What differences will it make, if any, if you were distracted, careless, forgetful or lazy? Do your actions always reflect your values?
We routinely comment on and ethically blame others for their actions and think that agents should have done or not done whatever they have not done or done. (We all generally like to get on our high-horses and judge others(!) Although there is no higher horse than Maddy the Pegasus – she looks down upon everyone!) But we can all be distracted, careless, forgetful or lazy now and again – it’s just that some people are lucky and an accident or lapse causes no harm while others are less lucky and an equivalent accident or lapse of theirs happens to harm someone. If neither morality nor legality should depend on luck then should even those who don’t cause harm with their accidents or lapses be punished in order to compel them to be more careful and attentive next time too, in case the next time they won’t be so lucky?
Would being stressed out by work excuse one if one forgets a best friend’s birthday despite writing a reminder down? Would being distracted to speeding by listening to music whilst driving excuse one if one causes an accident? These two scenarios are, on the face of it, similar so do you have the same answer for both? It could be argued that you being stressed from your work was your own choice for prioritising your work so much, in the same way that you putting the music on whilst driving was your own choice, hence you should be responsible in both cases? Or it could be argued that you were trying your best in both scenarios and both outcomes were without intention, hence you should not be responsible in both cases? What would make them substantively different if they are to be treated differently? If it’s about the amount of harm caused then is justice again down to luck because sometimes people can be distracted when driving but not cause a fatal accident, and sometimes people can be distracted when driving and will, for instance. And are we responsible for luck?
So does the amount of emotional and/or physical harm caused matter if something was an accident?
Put another way – if someone, with intention, wanted to murder you but failed because luckily the knife stabbed a thick wallet in your jacket pocket, or the contract killer they hired failed to do their job, then should this person be let off the hook because the harm caused was minimal? In this case, does the lack of grave emotional and/or physical harm caused matter if something was not an accident?
Even though they didn’t manage to harm you (relatively) much, they remain a direct threat to you, so you probably wouldn’t want them to be let free because they could one day finally succeed with their intention to kill you! And so bringing this back to unintentional acts – even though someone did manage to accidentally harm you in the past, in this case they don’t remain a direct threat to you, so would you let them be free because they had and have no intention of harming you?
Normally, we know what we’re doing, we have control of our actions, and we had the intention to produce a particular outcome that was produced, hence we are responsible for our actions. But when it comes to lacking attention, to carelessness, forgetfulness or laziness, we’re unaware of the key constitutive aspects of our circumstances and actions that will, arguably, make us responsible for an outcome. Can we be responsible for forgetting something without intentionally wishing to forget it?
However, in certain contexts, shouldn’t we be responsible for our neglect, negligence or absence of foresight when we have a duty to do something? This could be looking after your own child or pet, arriving at work on time or not endangering other road users.
Yet, in other contexts, we might afterwards ‘take responsibility’ and feel remorse or regret for an accident, but we might not ultimately be responsible for it. We can feel guilty for things we shouldn’t, as much as not feel guilty for things we should.
Should mitigating factors or extenuating circumstances reduce guilt? If no, then should aggravating factors increase guilt? If yes, then should one’s personality be considered either a mitigating or aggravating factor? In other words, can we blame someone’s personality for lacking conscientiousness or for cutting corners, or for their propensities for being forgetful, clumsy or even reckless? Can we change our personalities or is there nothing we can, reasonably, be expected to do about that? We could possibly choose to change the way we are today but we have been shaped by our genetics (nature) and upbringing (nurture), and some are luckier than others in those regards. So should we once again punish the unlucky? Is it wrong and pointless, or precisely right, to punish what people ‘can’t help’?
Was the error that one should actually be responsible for made prior to the accident, as in our failure to implement certain reasonable precautions to prevent the accident from ever happening? We can perhaps put systems in place to counteract our distractedness, carelessness, forgetfulness or laziness (e.g. alarms and reminders). Yet what if we’re too distracted, careless, forgetful or lazy to put them in place?(!) How shall we decide what someone ‘should have known’ or ‘should have done’ without the biased benefit of hindsight? How should ‘reasonable’ be defined when it comes to ‘reasonable precautions’?
We might be unaware of the risks of something, but would that be our own fuzzy fault for not doing our research? Yet is it realistic to be able to envisage all risks before acting? Humans cannot be expected to be perfect – but what standard should we therefore expect from them? Isn’t ‘just use your common sense’ a bit vague and assumes that everybody shares the same level of sense? Yet if we acknowledge that different people have different levels of intellectual senses (beyond their developmental age or relevant mental conditions), would it be fair for those with a higher intellect to be held to higher standards and those with lower intellects to be able to get away with more accidents?
In Post No.: 0778, we asked whether insanity was an acceptable defence?
For most of us, there is a difference between inadvertent and intentional acts. Reckless action is often considered nearly as bad as purely intentional action too, but what’s the difference between recklessness and carelessness?
Well from an ethical or moral standpoint, you might not be regarded as responsible for an act depending on how your actions are perceived to relate to your values. From a legal standpoint however, you are still responsible for your inadvertent acts due to the focus on attribution rather than how you perceive or react to the act. These inadvertent actions are called negligent actions – and most jurisdictions attribute responsibility for our negligent acts (e.g. a liability for negligence in tort law, involuntary manslaughter in criminal law). So you might not be deemed morally responsible for something yet be deemed legally responsible for it. Therefore the law can still punish certain unintentional acts from the angle of negligence.
If you have a duty of care as a driver for pedestrians, for example, it’ll mean that it is considered fair, just and reasonable for you to owe a duty to pedestrians. It’ll also be considered foreseeable that you’ll be exposing pedestrians to an unreasonable and substantive level of risk if, for instance, you drive over the speed limit, regardless of your lack of intention to harm and regardless of whether you personally foresaw the heightened level of risk or not. You’ll have breached the standard of care required if you do not act as a reasonable person would have under the circumstances. And if you do run someone over, judges will also consider the proximity – whether your actions and the harm to the pedestrian were close enough, in terms of cause and effect rather than physical distance, so that it was reasonably foreseeable that your negligence would cause loss or damage to them. In this above case, you’d have committed an intentional reckless action – you’d have intended to commit the act (of speeding) but not intended to cause harm to others (running over a pedestrian).
So we have seen that the moral and legal responses to unintentional acts can be different. However, good laws need to provide citizens with clear guidance regarding how to behave so that they’ll know how to avoid committing acts of negligence. Laws play a guiding role – they tell citizens how they ought to act and not act in civilised society. And we don’t really want to punish people despite their best intentions. Both the attribution and the deliberative perspective of the agent must therefore arguably be considered. So how shall we bring these moral and legal views together?
And perhaps the purpose of punishment is to prevent recidivism and so if a person had no intention to, say, injure someone they accidentally injured then they should receive a lighter or no sentence because they’re less likely to injure again. We should do what’s best for the present and future because the past cannot be changed. This may be to teach an offender a lesson for the future via punishment – yet there’s arguably no point in doing something harmful (taking away someone’s liberties) in order to teach them a lesson that doesn’t really need to be taught because the offender already accepts the lesson of ‘do not hurt others’. The past cannot be changed so we shouldn’t harm an accidental offender just for the sake of responding to them doing something to accidentally harm someone else.
Thus the intention of a defendant is arguably crucial to know because what lesson do they need to learn if they already didn’t and don’t intend to harm someone else? Like earlier, they didn’t want to hurt anyone before, and they don’t want to hurt anyone today or in the future – society should therefore feel safe with them remaining free rather than incarcerated. What they did was an accident. If they did intend to harm someone though then we’ll want to correct them, from them wanting to hurt someone before to not wanting to hurt anyone anymore, so that society will eventually feel safe with them being free (leaving aside the debate about whether punishment actually works to effectively prevent recidivism).
Or do you believe that punishment is still necessary after acts of negligence in order to get people to be more conscientious next time? Accidents can perhaps be punished, although to a lesser degree, in order to teach someone to not be as negligent again in the future, so that once more society will eventually feel safe with them being free (leaving aside the debate about whether punishment works to improve people’s conscientiousness in preventing future accidents).
…Yup, lots of questions and few or no clear-cut answers means that it’s a philosophy post!