Specific Crimes

In a recent essay, Donald Dripps advanced what he calls a "commodification theory" of rape, offered as an alternative to understanding rape in terms of lack of consent. Under the "commodification theory," rape is understood as the expropriation of sexual services, i.e., obtaining sex through "illegitimate" means. One aim of Dripps's effort was to show the inadequacy of consent approaches to understanding rape. Robin West, while accepting Dripps's critique of consent theories, criticizes Dripps's commodification approach. In its place, West suggests (...) a more phenomenological approach. The author argues that (1) neither Dripps nor West offers convincing critiques of consent-based theories; (2) the alternatives they offer presuppose the vitality of a consent-based approach to understanding rape; and (3) that both Dripps and West consistently conflate more genera l moral and political issues with that of the nature of rape. (shrink)

La censura penal en los estados liberales de derecho, se ha justicado históricamente desde el concepto de bien jurídico y desde principio del daño, conforme la tradición sea alemana o anglosajona, respectivamente. Sin embargo, en las últimas décadas se observa que tales criterios no pueden hacer frente a nuevos problemas que presentan las sociedades modernas. Tal es el caso de las tipificaciones en forma de delitos acumulativos, es decir conductas que en sí mismas acarrean consecuencias lesivas muy pequeñas, pero que (...) sumadas a otras de igual naturaleza pueden producir graves afectaciones. La literatura ha proporcionado un profuso debate sobre este tema. Aquí se intentará proponer una construcción plausible que sea capaz de justificar esta clasede prohibiciones. Para ello se parte del modelo republicano, que adopta como ideal de libertad, la no dominación. Toda vez que al ser posible la inexistencia de interferencias pero que, sin embargo, una persona vea restringida su libertad por encontrarse bajo el poder de otro (dominio), la idea de “libertad como no dominación” parece más satisfactoria para garantizar buenas condiciones de vida a los sujetos. Se ensayarán dos respuestas, una que considera que la razón de la prohibición se encuentra en el efecto que cada acto produce junto a los demás; y otra, que sólo repara en las consecuencias del acto individual. (shrink)

Argument about changes in the law of rape are logically dependent upon a prior definitional account. For any legal definition of an act, one can sensibly ask if that definition is right. To know whether the law is sound, one must first understand of what it is that the definition is a definition. For many parts of the criminal law, and the law of rape is one, the definitions on which the law moves are concepts perfectly accessible outside and apart (...) from the law. I have two aims for this article. The first is to argue for a particular conception of rape as the best understanding of the constellation of acts we conceptualize as rape. The second, less direct, is to show that traditional methods of conceptual analysis can contribute to legal and social scholarship and reform. (shrink)

I show that the Pinkerton rule in conspiracy law is doctrinally and morally flawed. Unlike past critics of the rule, I propose a statutory fix that preserves and reforms it rather than abolishing it entirely. As I will show, this accommodates authors like Neil Katyal who have defended the rule as an important crime fighting tool while also fixing most of the traditional problems with it identified by critics like Wayne LaFave. Pinkerton is a vicarious liability rule that makes conspirators (...) criminally responsible for the foreseeable crimes of their coconspirators committed in furtherance of the conspiracy. It has two big problems: (1) Doctrinally, it breaks the logic of the many state criminal codes that are based on the Model Penal Code. (2) Ethically, it infringes the culpability constraint on the criminal law by imposing excessive punishments on defendants who did not even consciously suspect that their coconspirators would commit additional crimes that were not the object of the conspiracy. These problems are most acute in Texas, where Pinkerton can be combined with capital murder charges to produce automatic life without parole sentences. The Texas example is an extreme illustration of the problem of unintended consequences when state legislators tinker with the carefully drafted, interlocking provisions of a model code. The new statute I propose would put the penal code back in order and respect the culpability constraint. In the latter aspect, it is informed by leading work in philosophical ethics on blameworthiness and culpability. (shrink)

The impact and relationship between technologies and society establish the development of certain adaptive models, based on coexistence (Human-information-Machine), as well as several behavioral and cognitive changes of the human being, and new models of influence and social control through ubiquitous communication. which is the basis of a new social units called "virtual communities". The rupture of social norms that accompanies rapid social change, and subsequently the appearance of sub-cultural values establishes gaining status of participation in criminal activities, the components (...) of social unites in general conform to social norms by social ties. the individuals or groups see themselves unfairly disadvantaged compared to other similar individuals, within physical-cybernetic ecosystem environment, which supports the interconnection and transformation of social phenomenon of digital dimension, with several implications in cyber hate crime. Thereby establishing the theoretical basis for further research looking which social vulnerability, identify the trajectory of the massive vector of impact "Information", which is a component of social cybernetics from the following three dimensions: (P) Propagation - (R) Replica - (C) Control called the "Cyber Hate Crime Pathway" that links hate crimes within the cyber-physical ecosystem, and where different types of social vulnerability are established. This study incorporates an epistemology approach of the relation between social and cybernetic theories, that will allow establishing a scientific base for future research in the field of new phenomena that will continue to appear within the Physical-Cybernetic ecosystem. It will also allow the contributions and implications to science derived from the product of this research establish a global holistic field applied to criminal justice system, academic and the new entities of social cybernetic. (shrink)

When we define something as a crime, we generally thereby criminalize the attempt to commit that crime. However, it is a vexing puzzle to specify what must be the case in order for a criminal attempt to have occurred, given that the results element of the crime fails to come about. I argue that the philosophy of action can assist the criminal law in clarifying what kinds of events are properly categorized as criminal attempts. A natural thought is that this (...) project should take the form of specifying what it is in general to attempt or try to perform an action, and then to define criminal attempts as attempts to commit crimes. Focusing on Gideon Yaffe's resourceful work in Attempts (Oxford University Press, 2010) as an example of this strategy, I argue that it results in a view that is overly inclusive: one will count as trying to commit a crime even in the far remote preparatory stages that we in fact have good reason not to criminalize. I offer an alternative proposal to distinguish between mere preparations and genuine attempts that has its basis not in trying, but doing: a criminal attempt is underway once what the agent is doing is a crime. Working out the details of this schema turns out to have important implications for action theory. A recently burgeoning view known as Naive Action Theory holds that all action can be explained by appeal to some further thing that the agent is doing, and that that the same explanatory nexus is at work even when we appeal to what the agent is intending, trying, or preparing to do -- these notions do explanatory work because they too refer to actions that are in progress, albeit in their infancy. If this is right, than the notion of 'doing' will also be too inclusive for the purposes of the criminal law. I argue that we should draw the reverse conclusion: the distinctions between pure intending, trying, preparing, and doing serve an important purpose in the criminal law, and this fact lends support to the view that they are genuine metaphysical and explanatory distinctions. (shrink)

Issues include attempts generally; the problem of outcome luck; the impossibility defense; physical movement and intent; and reckless attempts, attempted rape, and attempted theft. In the final section, I offer a hypothetical that challenges Prof. Donnelly-Lazarov's theory.

For over a century now, American scholars (among others) have been debating the merits of “bad Samaritan” laws — laws punishing people for failing to attempt easy and safe rescues. Unfortunately, the opponents of bad Samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states have passed bad Samaritan laws, and these laws impose only the most minimal punishment — either sub-$500 fines or short-term imprisonment. -/- This Article argues that every state should criminalize (...) bad Samaritanism. There are three main reasons. First, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against both homicide and manslaughter. Second, criminalization is recommended by the “proportionality principle” — i.e., the principle that a law’s level of punishment should be directly proportional to the moral severity of the offense. Third, criminalization would yield a number of significant benefits, including helping to minimize needless deaths and injuries and providing society with an institutional outlet for its outrage against bad Samaritans. -/- Still, many objections have been leveled against bad Samaritan laws. This Article will argue that while some of these objections — for example, the objections involving foundational criminal law principles such as the actus-reus requirement, the harm principle, and causation — are all easily refuted, five other objections are not. These five objections involve pragmatic considerations such as the difficulties with obtaining evidence against bad Samaritans and psychological considerations such as people’s understandable reasons for not wanting to “get involved.” This Article will then put these five objections into reflective equilibrium with the moral arguments for bad Samaritan laws and conclude that while bad Samaritanism should indeed be criminalized, the punishment that convicted bad Samaritans receive should be mild — certainly milder than the level of punishment recommended by the “proportionality principle.” The corollary of this conclusion is that the criminal law should sometimes abandon the proportionality principle. (shrink)

Disclosure of true but reputation-damaging information is generally legal. But threats to disclose true but reputation-damaging information unless payment is made are generally criminal. Many scholars think that this situation is paradoxical because it seems to involve illegality mysteriously arising out of legality, a criminal act mysteriously arising out of an independently legal threat to disclose conjoined with an independently legal demand for money. -/- But this formulation is not quite right. The real paradox raised by the different legal statuses (...) of blackmail threats to disclose and disclosure itself involves a contradiction between our strong intuition that blackmail threats should be criminal and some equally strong arguments, all of which depend on the fact that disclosure is legal, that blackmail threats should be legal. So an adequate solution to the real Blackmail Paradox requires us either to drop the intuition or to refute the pro-legalization arguments. -/- This Article will adopt the latter approach. It will explain why the six main arguments for legalizing blackmail threats all fail. In the course of refuting one of these arguments, it will also offer a novel positive justification for criminalizing blackmail threats: they should be criminal for the same reason that menacing, harassment, and stalking are criminal--namely, because they involve the reasonable likelihood, and usually the intent, of putting the victim into a state of especially great fear and anxiety. -/- Of course, one might object that disclosure itself is likely to have the same effect, if not malicious purpose. Yet, again, it is still legal. But this point shows only that we as a society value freedom of speech more than we value freedom from infliction of emotional injury. It does not show that we do not value freedom from infliction of emotional injury sufficiently to protect it when competing moral or institutional interests such as freedom of speech are not at stake. (shrink)

A surprisingly large number of scholars believe that (a) we are blameworthy, and therefore punishable, only for what we have control over; (b) we have control only over our actions and intentions, not the consequences of our actions; and therefore (c) if two agents perform the very same action (e.g., attempting to kill) with the very same intentions, then they are equally blameworthy and deserving of equal punishment – even if only one of them succeeds in killing. This paper argues (...) against these “equivalence theorists” that harmful consequences do make a moral difference, that the harm produced by the killer’s attempt retroactively makes her action more blameworthy, and therefore deserving of more punishment, than the failed attempter’s attempt. The primary argument for this “non-equivalence theory” is an analogy with gambling. Just as a gambler makes a deal with the casino to allow metaphysical luck to retroactively determine the “profit status” of her bet, so too the attempted killer makes a deal with “the casino of morality” to allow metaphysical luck to retroactively determine the moral status of her attempt. She makes the “moral deal” that if her attempt succeeds, her attempt was more blameworthy than if her attempt does not succeed. And it is the greater blameworthiness of the killer’s attempt that justifies our intuition that the killer should be punished more harshly than the failed attempter. (shrink)

Both liberals and feminists have long criticized the paternalistic approach to prostitution found in most jurisdictions in the U.S. In his recent book Prostitution and Liberalism, Peter de Marneffe defends just such an intervention, arguing that the demonstrated harmfulness of a life of prostitution justifies paternalistic policies aimed at reducing the number of women who are involved in it. Although de Marneffe does not endorse the prohibitionist approach typical in the U.S., he argues that the best reasons for alternative approaches (...) to the practice (including some forms of regulated legalization) are necessarily paternalistic. In my paper, I question de Marneffe’s contention that the strongest reasons for state intervention with regard to prostitution are paternalistic in nature. I argue that reasonable state action toward prostitution is best understood not as a paternalistic intervention to remedy some moral or epistemological failure on the part of prostitutes, but rather as an attempt to advance the interests of vulnerable parties more generally concerning what they reasonably desire but could not otherwise ensure. I further argue that such an approach might favor abolitionist over regulatory policies, depending upon how the vulnerable class is defined. (shrink)

According to legal expressivism, neither crime nor punishment consists merely in intentionally imposing some kind of harm on another. Crime and punishment also have an expressive aspect. They are what they are in part because they enact attitudes toward others—in the case of crime, some kind of disrespect, at least, and in the case of punishment, society’s condemnation or reprobation. Punishment is justified, at least in part, because (and when) it uniquely expresses fitting condemnation or other retributive attitude. What makes (...) retributive attitudes fitting is that they protect the victim’s status as inviolable. Hate or bias crimes dramatize the expressive aspect of crime, as they are often designed to send a message to the victim’s group and society at large. Treating the enactment of contempt and denigration toward a historically underprivileged group as an aggravating factor in sentencing may be an appropriate way to counter this message, as it reaffirms and indeed realizes the fundamental equality and inviolability of all members of a democratic community. (shrink)

Unjustifiable assumptions about sex and gender roles, the untamable potency of maleness, and gynophobic notions about women's bodies inform and influence a broad range of policy-making institutions in this society. In December 2004, the U.S. Court of Appeals for the Sixth Circuit continued this ignoble cultural pastime when they decided Everson v. Michigan Department of Corrections. In this decision, the Everson Court accepted the Michigan Department of Correction's claim that “the very manhood” of male prison guards both threatens the safety (...) of female inmates and violates the women's “special sense of privacy in their genitals” and declared that sex-specific employment policies for prison guards is not impermissibly discriminatory. I believe that the Court's decision relies on unacceptable stereotypes about sex, gender and sexuality and it significantly undermines Title VII's power to end discriminatory employment practices. (shrink)