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Intoxication and the Act/Control/Agency Requirement

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Abstract

Doug Husak has argued, persuasively I think, that there is no literal ‘act requirement’ in Anglo-American law. I begin by reviewing Husak’s reasons for rejecting the act requirement, and provide additional reasons to think he is right to do so. But Husak’s alternative, the ‘control condition’, I argue, is inadequate. The control requirement is falsified by the widespread practice of holding extremely intoxicated offenders liable for criminal conduct they engage in even if they lack control over their conduct at the time of the offense, and even if they are acting involuntarily. I provide examples from Canadian, US and German law to flesh out our legal practices with respect to intoxicated offenders. I then argue that, at least with respect to one class of intoxicated offenders–those known as ‘grand schemers’, who plan their criminal offending prior to rendering themselves incapable of voluntary control over their conduct–we are morally justified in imposing liability. I then propose an alternative to both the act and control requirements: what I call the ‘agency requirement’. I argue that our law does and should impose liability for conduct that is expressive of or constitutive of the defendant’s practically rational agency. Adopting an agency view allows us to expand our focus from just the moment of the offense to temporally extended instances of agency, such as is involved in planned offending by grand schemers.

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Notes

  1. Husak (1998/2010). Page numbers are to the latter. Antony Duff has more recently added to the reasons to reject the act requirement, suggesting instead that our law includes at most an “action presumption”: see Duff (2007).

  2. Husak more recently has considered other formulations of the act requirement, e.g., that liability be imposed for conduct that includes an act. The alternative formulations seem so ill-defined and vague that we should stick with the original formulation, which sees liability as imposed for an act. See Husak (2007); for defence, see Moore (1993).

  3. Of course, for all but strict liability offenses, liability also requires culpability, and so a complete description is that liability is “for the union of an act with a culpable state.” (Husak 1998/2010, p. 27). Thus being an act is only a necessary, not a sufficient, condition of being an object of liability, even for those who accept the act requirement.

  4. The requirement of alternate possibilities was famously rejected by Harry Frankfurt (1969), reprinted (1988). I cannot enter here into the substantial debate that has been generated by Frankfurt’s analysis. I have been convinced that the principle of alternate possibilities (PAP) is false.

  5. The background normative theory against which Husak develops his view is a theory of desert: persons should liable to criminal punishment only if they deserve it. Persons can deserve punishment for more than just acts, provided they have control over whatever it is they are being held liable for. G.R. Sullivan has provided a different argument for thinking the law has an act requirement, one not grounded in personal desert. Sullivan’s defence of the act requirement is instead grounded in the nature of criminal trials. Sullivan says criminal trials, given their normative features as public events calling persons to account for presumptive wrongs, require a voluntary act. Although I cannot discuss this suggestion fully here, I think Sullivan’s argument actually supports the control rather than the act requirement, as revealed especially in his discussion of the hypothetical status crime of being green eyed. See Sullivan (2005), esp. p. 208. The nature and normative significance of criminal trials has been the subject of important recent work in legal scholarship, owing very much to the work of Antony Duff. Duff’s account is evident in Sullivan’s description here. See Duff (1986, 2001, 2007, 2010) and Duff et al. (2007).

  6. Husak speaks of ‘non-voluntary’ acts; I sometimes use ‘involuntary’. Nothing hinges on this. While there are important contexts in which the distinction between involuntary and non-voluntary matter (e.g., in distinguishing duress from physical compulsion cases), I mean by both a lack of will, rather than an opposition to will.

  7. His original position was motivated in part, I think, by his desire to develop a theory compatible with the Model Penal Code, which seems to distinguish between acts, bodily movements that can be either voluntary or involuntary (§1.13(2)), and voluntary acts (§2.01(2)) (Proposed Official Draft 1962). He has come to rethink that interpretation of the MPC: see Husak (2007), p. 2455.

  8. Voluntariness could equally be thought of as an independent condition: liability requires both control and voluntariness, where voluntariness stands independently of control. I think the best interpretation of Husak’s view is that voluntariness is an element of control, but a parallel argument could be run separating out the two conditions.

  9. Reflecting our abandonment of the act requirement, I shall speak hereafter of ‘conduct’; ‘conduct’ just refers to the multiple bases of liability, the multiple things that one can be liable for.

  10. I use Canadian law as my example, but many other Anglo-American jurisdictions follow the same or similar intoxication laws. The line of cases through which common law and Canadian intoxication law developed runs from the 1920 House of Lords decision in D.P.P. v. Beard, [1920] A.C. 479 that introduced the general intent/specific intent divide, through R. v. George, [1960] S.C.R. 871, D.P.P. v. Majewski, [1977] A.C. 443, Leary v. The Queen, [1978] 1 S.C.R. 29, R. v. Bernard, [1988] 2 S.C.R. 833, and R. v. Daviault, [1994] 3 S.C.R. 63.

  11. I speak only about ‘voluntary’ or ‘self-induced’ intoxication in this paper. Involuntary intoxication is treated very differently, and typically results in a complete acquittal. Common law jurisdictions treat intoxication as voluntary just so long as the defendant voluntarily consumed something he knew or ought to have known was an intoxicant, regardless of how unlikely the resulting impairment might be. In this respect, the MPC’s provision excusing ‘pathological intoxication’ is an improvement over the common law. For details, see Dimock (2009, 2011b).

  12. MPC §2.08 (2).

  13. The distinction has been criticized as ad hoc, unprincipled and uncertain by both commentators and judges. See, for example, Quigley, (1987a, b, c); on the judicial side, see the powerful dissents of Canadian Justice (later Chief Justice) Brian Dickson in Leary [1978] and R. v. Quin, [1988] 2 S.C.R. 825.

  14. Usually the rule allowing proof of intoxication to be substituted for proof of mens rea in general intent crimes is treated as an “irrebuttable presumption”. This is problematic, of course, since proof of voluntary intoxication hardly satisfies us beyond a reasonable doubt that the accused had the mens rea for all forms of assault, manslaughter, breaking and entering, etc. Most commentators agree that irrebuttable presumptions are generally problematic. “Irrebuttable presumptions…appear to serve no other purpose than to enact substantive criteria of criminal liability in procedural disguise”. Roberts (2005, p. 184). As applied to intoxication specifically, see Dimock (2009, 2011b).

  15. For other possible explanations, see the discussion of voluntary intoxication in Robinson (1984).

  16. R. v. Daviault, [1994] 93 C.C.C. (3d) 21.

  17. For defence of this position, see Finkelstein (2002), and Finkelstein and Katz (2008).

  18. Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 16, s. 33.1. Emphasis added.

  19. McIntyre J. in R. v. Bernard, [1988] 2 S.C.R. 833 at para. 65.

  20. Most intoxicated offenders are not extremely intoxicated, of course, and so may well have the control Husak thinks necessary for liability. Many false conclusions are drawn from the correlation between crime and intoxication. For discussion of what conclusions can and cannot be drawn from this correlation, see Dimock (2009, 2011a, b). See also Mitchell (1988). For statistics on the role of intoxication in criminal cases, see Juristat, the justice-related branch of Statistics Canada at http://www.statcan.gc.ca.

  21. The seminal work is by Paul H. Robinson: see Robinson (1982, 1984, 1985, 2009).

  22. Michael Bratman has developed a conception of planning agency over many years, and I have his view in mine when I speak of planning. Bratman (1987, 1999) and many more recent articles reward careful attention. As Bratman’s work reveals, there are difficult questions about the nature and rationality of reconsideration of future-directed intentions and the plans in which they are embedded. See also Peter and Schmid (2007) and Verbeek (2008).

  23. Culpability or thought crimes such as attempts and conspiracy are omitted because they are always specific intent offences, and so not captured by what is said here.

  24. I have traced the term ‘grand schemer’ to Robinson (1985).

  25. R. v. Parks, [1992] 2 S.C.R. 871.

  26. R. v. Honish, [1991] A.J. No. 1057 Alberta Court of Appeal.

  27. This assumption follows from the fact that the intoxication was deemed voluntary or self-induced, though in the later two cases one might have doubts: Mr. Daviault was a chronic alcoholic, and Mr. Honish was so depressed he tried to commit suicide, after all, but I leave these worries aside.

  28. I suspect that the argument works for all lesser forms for culpability as well. Defending this claim requires separate argument, however, not made here. Only cases in which the defendant intended his subsequent criminal conduct are covered by the discussion in the text.

  29. See Chaio (2009, p. 19). Not all cases of intoxication fit the ‘culpability-in-causing’ doctrine, keep in mind. The majority of defendants who commit crimes where intoxication is a factor have not committed any culpable choice in deciding to consume intoxicants, even in deciding to become intoxicated (unlike those who render themselves insensible in order to or knowing that they will cause some harm). We stipulated that the intoxication was the result of the exercise of the practically rational agency of the defendants; it is a choice for which they are fully responsible. But it need not be a culpable choice. This is especially so if we consider not just alcohol and prohibited drugs, but prescription and other regulated substances, and over-the-counter products like cold remedies and sleep aids. The choice to become intoxicated is often not morally wrong (or at least not the kind of wrong the criminal law should address). In that case, I think the conduct they engage in after losing the capacities for rational agency cannot be attributed to them. True: they created the conditions of their own involuntariness. But they did so non-culpably. If there are intoxication cases in which the choice to become intoxicated is not culpable, then they are obviously outside the scope of the ‘culpability-in-causing’ principle, since there is no culpable choice that causes anything. See Dimock (2009, 2011b).

  30. I stipulate this here because the laws that I examine explicitly require conviction of persons acting involuntarily, and it is the problem such laws create for the control requirement that interests me here. But I also resort to stipulation because I want to leave open a number of questions related to our conception of legal involuntariness. Here I accept for the sake of argument that sleepwalking, automatism and mindless intoxication can undermine voluntariness, but in another place I will probe these issues more deeply.

  31. Though under both the common law strict/general intent divide and the Model Penal Code § 2.08(2) we would only convict the husband of reckless homicide or manslaughter rather than murder. C.f. Robinson (1984, 1985).

  32. Nothing I have said so far speaks to the question how far down the culpability ladder we should scale in imposing liability. I think we may face real difficulty, however, if the criminal result that is brought about after one has caused the incapacity is entirely unforeseen (perhaps unforeseeable), or an entirely different kind than that which one intended or foresaw, etc. In such cases, we might have to ask whether the criminal result was within the risk that the defendant intentionally or knowingly created. Or if Moore has persuaded you to abandon the ‘harm-within-the-risk’ test, replace it with one you prefer: Moore (2009). We also need suitable ceteris paribus conditions to rule out deviant causal chains.

  33. This is a subject that has been extensively discussed by Michael Bratman and his critics. See Bratman (1987) and Verbeek (2008).

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Cases

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  • R. v. Parks, [1992] 2 S.C.R. 871.

  • R. v. Daviault, [1994] 3 S.C.R. 63.

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Dimock, S. Intoxication and the Act/Control/Agency Requirement. Criminal Law, Philosophy 6, 341–362 (2012). https://doi.org/10.1007/s11572-012-9173-x

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