Causation

The place of causation in criminal law doctrines. The part of the substantive criminal law commonly called the "special part" consists of several thousand prohibitions and requirements. Criminal codes typically prohibit citizens from doing certain types of action and sometimes (but much less frequently) require citizens to do certain types of actions. Causation enters into both the prohibitions and the requirements of a typical criminal code, for such statutes either prohibit citizens from causing certain results or require them to cause certain results. In either case causation is central to criminal liability.

It is sometimes urged that omission liability (that is, liability for not doing an act required by law) is noncausal, and there is a sense in which this is true. A defendant who omits to do an act the law requires him to do is not liable for having caused the harm that the act omitted would have prevented; rather, he is liable for not preventing the harm (Moore, 1993, pp. 267–278). Yet notice that to assess whether a defendant is liable for an omission to prevent some harm, a causal judgment is still necessary: we have to know that no act of the defendant prevented (i.e., caused the absence of) any such harm. For if some act of the defendant did cause the absence of a certain harm, then the defendant cannot be said to have omitted to have prevented the harm. One can, for example, only be liable for omitting to save another from drowning if none of one's acts have the causal property, saving-the-other-fromdrowning (Moore, 1993, pp. 29–31).

It is also sometimes said that many prohibitions of the criminal law do not involve causation. Criminal law typically prohibits theft, rape, burglary, conspiracy, and attempt, and (so the argument goes) these are types of actions that have no causal elements in them. Although this view has been elevated to a dogma accepted by both American and English criminal law theorists (Fletcher, 1978, pp. 388–390; Fletcher, 1998, pp. 60–62; Buxton, p. 18; Williams, p. 368), it is manifestly false. A theft occurs, for example, only when an actor's voluntary act causes movement ("asportation") of the goods stolen. Similarly a burglary occurs only when there is a breaking and an entering of a building, and these occur only when a defendant's voluntary act causes a lock on a window to be broken and causes the alleged burglar to be in the building in question (Moore, 1993, pp. 213–225). The temptation to accept the dogma (of noncausal criminal actions) stems from the fact that many of the results the criminal law prohibits are usually brought about rather directly. Penetration in rape, for example, usually is not the result of a lengthy chain of events beginning with the rapist's voluntary act. But this is not always the case, as where the defendant inserts the penis of another into the victim (Dusenberry v. Commonwealth, 220 Va. 770, 263 S.E2d 392(1980)); and in any case, that the causal conclusion is often easy to reach should not obscure the fact that a causal judgment is involved in all actions prohibited or required by the criminal law.

The place of causation in criminal law policy. It is a much debated question whether the criminal law should be so result-oriented. Why is the defendant who intends to kill another and does all he can to succeed in his plan less punishable when he fails to cause the harm intended than when he succeeds? Utilitarians about punishment typically justify this causation-oriented grading scheme by alluding either to popular sentiment or to the need to give criminals incentives not to try again. Retributivists about punishment typically invoke a notion of "moral luck" according to which a defendant's moral blameworthiness increases with success in his criminal plans (Moore, 1997, pp. 191–247). In any case, for one set of reasons or another, causation is an element of criminal liability for all completed crimes, in addition to mens rea and voluntariness of action.

Causation in criminal law and causation in tort law. Many of the leading cases on causation, most of the causal doctrines finding some acceptance in the law, and most of the theorizing about causation, originate in the law of tort and not in the criminal law. The reasons for this are not hard to discern. Unlike the thousands of specific actions prohibited or required by the criminal law, tort law largely consists of but one injunction: do not unreasonably act so as to cause harm to another. Such an injunction places greater weight on causation. It leaves open a full range of causal questions, much more than do injunctions of criminal law such as, "do not intentionally hit another."

Criminal law thus has been a borrower from torts on the issue of causation. Such borrowing has not been uniform or without reservations. Aside from the greater demands of directness of causation implicit in specific criminal prohibitions (noted above), the criminal sanction of punishment is sometimes said to demand greater stringency of causation than is demanded by the less severe tort sanction of compensation. Still, the usual form such reservations take is for criminal law to modify causation doctrines in tort by a matter of degree only (Moore, 1997, p. 363 n.1). Foreseeability, for example, is a test of causation in both fields, but what must be foreseeable, and the degree with which it must be foreseeable, is sometimes thought to be greater in criminal law than in torts. Such variation by degree only has allowed causation in criminal law and in torts to be discussed via the same tests, which we shall now do.