Boston University School of Law

Strict Criminal Liability in the Grading of Offenses:
Forfeiture, Change of Normative Position, or Moral Luck?

Kenneth W. Simons

Oxford Journal of Legal Studies, Vol. 32, No. 3 (2012), pp. 445-466
Boston University School of Law Working Paper 11-59
December 19, 2011)


Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime.  Suppose an actor commits an intentional assault or rape, and accidentally brings about a death.  Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death.  But what punishment is proportionate for such an actor?  Should he be punished as harshly as an intentional or knowing killer?

This paper offers a framework for analyzing these difficult questions.  After rejecting a broad forfeiture justification for strict liability in grading, it articulates a more promising set of arguments, premised on the actor’s “change of normative position” by choosing to commit a crime.  Three principles of culpability sometimes justify strict liability in grading: holistic culpability, attention to the degree of unjustifiability of the risk, and rough comparability in culpability.  Strict liability in grading can be appropriate when the risk of committing the more serious crime (a) is a risk intrinsic to the less serious crime or (b) is minimally foreseeable.  The article also addresses the relevance of moral luck, i.e. the principle that the fortuitous occurrence of a result or circumstance increases the actor’s just deserts.  Even if moral luck is recognized, it cannot fully justify strict liability in grading.

Keywords: strict liability, mens rea, culpability, grading, moral luck

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Boston University School of Law
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