Basic Concepts of Criminal Law

By George P. Fletcher | Go to book overview
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as they enjoy behind locked doors. They can walk in the park when they want, sit where they want in the subway, and wear skimpy clothes without fearing that they will be faulted for precipitating rape. This is what it means to be a free person endowed with rights, and the criminal law protects this freedom by not censuring those who expose themselves, perhaps with less than due care, to risks of criminal aggression. The blame properly attaches to the mugger, thief, and rapist, regardless of the victim's role in the interaction leading to the crime.

Criminal law represents a distinct ideology about the way aggression occurs. Criminals impose these aggressive impulses on victims. Tort stands for a different view. Tortfeasor and victim interact in ways that generate harms. It is difficult to say that either of these is definitively right or wrong. They are two different perspectives on the same reality.

The important point to keep in mind about distinguishing human causation from natural events is that these categories are rife with conflicting methods and divergent moral assumptions. Some scholars advocate the "but for" test that sweeps too wide. Other writers insist either on the view that causes must possess energy that operates on the world or that the notion of causation should be limited to the way we speak about causation in ordinary language. On top of these methodological debates we find layered our conflicting moral assumptions about the roles of different fields of law. In criminal law, at least, we remain committed to the view that victims do not cause their own suffering. Their participation is but the background event against which the criminal wreaks his harm. 23

See the definition of harm as a "setback to interests" in Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Others33-34 ( 1984).
Note that the agent in these cases need not be a human agent. One could imagine an animal "raping" a human being, or "stealing" food from a human owner.
I developed this concept as one of three patterns of criminal liability in George P. Fletcher, Rethinking Criminal Law235-241 ( 1978).
American tort law distinguishes between assault and battery. Battery requires physical harm, assault is an attempted battery. If we were following this usage, we would put battery in the column of harmful consequences (physical injury) and assault in the column of harmful actions (the threat of injury is harmful because it is threatened by a human agent). The common law of crimes has blurred this distinction and treats "assault and battery" as a single crime.
T. Lenckner in Schönke/Schröder, Strafgesetzbuch §13, prelim. note 73, at 132. For a thoughtful critique of the "but for" test in German law, see Naucke, Über das Regressverbot im Strafrecht, 76 ZStW 409 ( 1964).
MPC §2.03(1)(a).


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