The Voluntary Act Requirement

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THE VOLUNTARY ACT REQUIREMENT


Gideon Yaffe


Introduction


It is abhorrent to punish someone for something he did not do. This feeling motivated Illinois Governor George Ryan in 2000 to commute the sentences of many defendants awaiting execution. The idea that the state should not just punish someone, but execute him, for something he did not do was more than Ryan could bear. It is rarely recognized, however, that there are two different ways to be punished for something one did not do. In the first kind of case, which is the sort that was on Ryan’s mind, there is a doing, a genuine action, performed by someone—a murder, for instance—and worthy of punishment; the trouble is that the person being punished is not the very one who performed the awful act. In the second kind of case, there is no mistake of identity, but there is also no genuine action; the punished person is not punished for something he did, but, instead, for merely being a certain way—for “appearing” drunk on the highway after the police carried him bodily from his home to the highway before arresting him, as in Martin v. State (31 Ala. App. 334 (1944)). In such cases, someone is punished for something that cannot be attributed to his agency, something with respect to which he is passive. If it’s wrong to punish in the first kind of case, isn’t it just as wrong to punish in the second? In both, the punished person did not do anything prohibited.


Laws that enact the presumption of innocence are aimed at preventing conviction of people different from those who actually committed the relevant crime. Such laws enshrine our abhorrence of punishment of the innocent, the kind of abhorrence that motivated Ryan. The criminal law’s Voluntary Act Requirement (VAR) is often seen as enshrining in law the injustice of punishment in the second class of cases where there is no genuine action by the defendant on which to predicate criminal liability. The requirement is statutorily codified in many jurisdictions (cf. Model Penal Code § 2.01(1), critically discussed in Husak 2007) and accepted as a foundational principle of law in jurisdictions in which it is not written into a statute. The VAR should be understood as follows:



A conviction of a defendant for crime C is justified only if (1) There is a voluntary act, the performance of which is necessary for C’s occurrence (given the statutory definition of C) and (2) the defendant has been shown (typically, beyond a reasonable doubt) to have performed such a voluntary act.


Under the VAR, we cannot criminalize in the first place, and so cannot legally punish, the meeting of a set of conditions that can be met without the performance of a voluntary act.


The VAR is a legal representation of a legitimate moral idea. There is something morally objectionable about violating it, as it would have been violated had the trial court’s conviction of Martin for appearing drunk in public not been overturned. The question is what, exactly, the underlying moral idea is. As we will see, many of the valid moral principles that one might take the VAR to legally enshrine fail to capture important aspects of it. Further, it will be argued that, perhaps surprisingly, the moral idea that in fact justifies the VAR is the familiar one that what qualifies wrongful conduct for criminal punishment is the way in which that conduct manifests the defendant’s objectionable mental states, such as bad intentions.


Section 1 explains some of the features of the VAR that need to be accounted for by a moral rationale for it. Section 2 discusses several attractive rationales and argues that each falls short of providing a fully satisfactory account. Section 3 offers an alternative, drawing on an appealing picture of the morally relevant relationship between criminal conduct and the mental states of the criminal, a relationship which, it is argued, is at risk of being absent when the VAR is violated.


The Legal Doctrine


Although it is rarely made explicit, the law uses a definition of the term “voluntary act” that departs in significant respects from the ordinary concept. For legal purposes, a voluntary act is a willed bodily movement. To will, in the sense of relevance to the VAR, is not merely to mentally represent the bodily movement and for that bodily movement to be guided by that representation. If the mental state that guides the bodily movement is not “conscious”—a term explicitly used in the law—then that mental state is not a willing, or a volition, and the bodily movements it guides are therefore not voluntary actions. So the law provides two significant limitations in its definition of a voluntary act: only bodily movements count, and, of those, only bodily movements guided by conscious mental representations count. There are thus (at least) two kinds of voluntary action, in the ordinary sense, that do not count as voluntary actions in the law’s sense: (1) voluntary thoughts (e.g., voluntarily thinking about a problem); and (2) bodily movements guided by unconscious mental representations of them.


The first of these two departures from the ordinary notion of a voluntary act is easily explained. There is something objectionable about criminalizing thoughts alone. Prohibitions on thoughts are intrusive violations of privacy, efforts at mind control, and inconsistent with the goals and role of a liberal state. This idea gains legal expression in the idea that crimes consist of both mens rea elements and actus reus elements. The mens rea elements of the crime are mental states, thoughts, that the defendant must be shown to have had for guilt—an intention to kill, for instance. But mature legal systems do not allow guilt merely on the strength of adequate proof of mental states. Actus reus elements—further facts distinct from the mental states of the defendant—must also be shown for guilt: that somebody died, and that the defendant caused that death, for instance. It is because the VAR is a restriction on the actus reus (among the actus reus elements must be a voluntary act) that the law defines the term “voluntary act” so as to exclude voluntary thoughts. The thoughts that are relevant to criminal liability are part of the crime’s mens rea (and, in fact, none of them need to be shown to be voluntary). So, the fact that the VAR cannot be satisfied by proof that the defendant had a voluntary thought is merely an artifact of the formal structure of crimes—the division between mens rea and actus reus—that is, itself, a legal mechanism for barring crimes of pure thought.


The second departure from the ordinary notion of a voluntary act—the exclusion from the category of bodily movements guided by nonconscious mental representations of them—is more puzzling and in need of independent explanation. To see that this second category includes behaviors that we would ordinarily characterize as voluntary, consider the case of People v. Newton (87 Cal. Rptr. 394 (1970)). After a traffic stop and an altercation with police, Newton was shot in the gut. Immediately following, he shot and killed one of the police officers and fled the scene, arriving shortly afterwards at a hospital. Later he claimed not to remember the shooting, or traveling to the hospital, and claimed to have been unconscious for the crucial period of time beginning from the moment at which he was shot. Medical testimony supported the contention: a doctor testified that people suffering from traumatic injuries often engage in complex, motivated bodily movements in the absence of consciousness. Newton was convicted at trial, but his conviction was overturned on the grounds that the mental states that guided his bodily movements—the finger movements on the trigger, for instance—were not conscious and so were not willings; but if they were not willings, then the relevant bodily movements were not voluntary, and so it would be a violation of the VAR to punish Newton for the officer’s death. Newton’s finger movements on the trigger were not likely to be purely reflexive; they were clearly goal-directed. Newton seems to have been aiming the gun at the officer, and so must have been mentally representing a particular goal, namely to shoot the officer, a mental representation that was involved in guiding his bodily movements. Many people would take such considerations to show that the relevant bodily movements were voluntary actions in the ordinary sense, but they were not voluntary in the law’s sense.


Morally justifying the VAR requires explaining what justifies the exclusion of behaviors that we would ordinarily classify as voluntary acts. In addition, however, there are events that we would probably not classify as voluntary actions—in fact, they may not even meet the law’s definition—but that the law treats as though they were. This is true, in particular, of omissions—failures to act—and of habitual actions. If a defendant is shown to have omitted a bodily movement (under certain conditions), or shown to have engaged in a habitual bodily movement, then that’s good enough to comply with the restriction imposed by the VAR.


This is not as peculiar as it might seem. In many places in the law we find that X, which is different from Y, is treated for legal purposes as though it were Y. Under, for instance, the doctrine of transferred intent in homicide, a person who intends to kill one person and, acting on that intention, kills another instead, is treated as though he intended to kill the person he killed. The law does not make the mistake of holding that the defendant in such a case really intends to kill the person he kills; everyone recognizes that the death in such a case was, in a sense, an accident. Rather, it is that the defendant is treated as though he had that intention since, it is thought, his actual intention was just as bad (or worse) than the one the law actually takes to be an element of an intentional homicide (namely, an intention to kill the person who was killed). Similarly, the law treats both omissions and habitual, often reflexive, acts as though they were voluntary acts for the purposes of the VAR, even though they may not be in fact.


Consider the case of omission first. There is an open question in the philosophy of action as to whether omissions are to be identified with willed bodily movements. Consider a mother who sits idly by while someone seriously injures her infant and makes no effort to stop the beating. Is her omission—the one we refer to when we say, “She failed to protect her own child”—to be identified with the bodily movement in which she did engage, the bodily movement, for instance, associated with sitting idly and watching? Perhaps. Or perhaps not. Perhaps the action referred to by such a sentence consists only in the absence of the act of protecting her child, rather than that positive bodily movement that occurred in its stead. (For discussion and further references, see Bach 2010.) But whatever the outcome of this debate, a defendant in an omission case such as this need not be shown beyond a reasonable doubt to have willed the bodily movements in which she is engaging when she ought to have been protecting her child. And there’s surely a good reason for this. Unless it speaks to the question of her capacity to protect her child, it would seem to miss the moral point of the VAR to acquit a defendant on the grounds that at the moment when she could have been protecting her child she was instead simply sitting idly, a bodily movement that she did not will. Precisely what seems morally salient is what she did not do or will, not whether or not she willed that in which she was, instead, engaged. The result is that the VAR is to be interpreted as allowing criminal liability in the absence of a voluntary action in the case of omissions meeting appropriate conditions. Like the exclusion by the VAR of criminal liability in cases where bodily movements are guided by unconscious mental states, the inclusion of criminal liability for the case of omissions must also be explained by an adequate account of the moral rationale of the requirement.


A word about habitual actions is also in order. Consider a defendant who has been trained by the military to spin around and fire immediately, and without thinking, on a threat behind him. This behavior has become, thanks to his training, habitual. Is he to be held guilty of a crime when, at the local firing range, he spins and fires on a person behind him who yells something threatening? Or would such a verdict violate the VAR? The bodily movements in cases such as this are routinely taken to provide an acceptable basis for criminal liability (cf. Model Penal Code § 2.01(2)(d)). Noting that the defendant spun and fired only thanks to his military training will not serve to undermine the case against him through appeal to the VAR, although it might support a claim that he lacked some further mental state, such as an intention to kill, relevant to his degree of criminal liability. As suggested above, the law does not take this stance because it is believed that habitual actions are, in fact, willed. Nobody tasked with making legally binding decisions knows whether such actions are willed or not, or even whether some types are and some are not. It is an empirical question that would require careful investigation by psychologists and neuroscientists. Normally, our ignorance about a feature of pertinence to criminal liability is enough to supply reasonable doubt, and thus enough to support an acquittal. But not in habitual action cases. If there is reasonable doubt about whether the defendant’s bodily movement was voluntary deriving from the fact that it is habitual, that reasonable doubt fails to undermine the case for guilt. We treat habitual bodily movements, that is, as though they were voluntary acts in the legal sense, even though we have no idea whether they are in fact. This fact, also, about the VAR should be explained, ideally, by a moral justification of it.


To summarize, then, there are three features of the law’s application of the VAR that should be accounted for by a justification of it: (1) there’s no criminal liability for goaldirected bodily movements guided by nonconscious mental representations; (2) there is criminal liability for some omissions; and (3) there is criminal liability for habitual bodily movements even though there is reasonable doubt as to whether they are willed. An adequate rationale of the VAR will, first and foremost, explain why a voluntary action is necessary for justified criminal liability. But, ideally, the explanation will also entail (1), (2) and (3).


Insufficient Rationales for the VAR


Broadly speaking, there are two different kinds of moral rationale that can be given for a criminal law doctrine that draws distinctions among defendants and then predicates differences in criminal punishment on the distinctions that it draws. Under the first kind of rationale, the doctrine is shown to draw a distinction on the basis of a property that makes a difference to desert of punishment. For instance, many offenses are graded by the mental states of the defendant. We punish more heavily someone who intentionally burns a neighbor’s barn out of spite than someone who negligently burns it by forgetting to put out a campfire. This doctrine is explained by the fact that intentional wrongdoing is morally worse than negligent wrongdoing.


The second kind of rationale appeals to a moral norm governing the behavior of those who are to inflict punishment. Ordinarily, for instance, we think it wrong to punish someone whom we lack good reason to think deserving of punishment even if he is deserving of punishment. To punish someone deserving without knowing for sure that he is deserving is not to give someone something other than what he deserves—if he’s deserving, he’s deserving—but it is to nonetheless do something wrong; it is to violate a norm governing the conduct of punishers. This moral norm—do not punish unless you know the punished is deserving—explains, for instance, some criminal law doctrines pertaining to evidence: we often punish only one of two equally deserving defendants when one, but not the other, has been proven to be guilty by the admissible evidence.


Two of the possible rationales for the VAR discussed in this section—called here the “Evidentialist” and “Actual Invasion” rationales—are of the second sort: they identify moral norms governing punishers and claim that those norms would be violated were the state to fail to follow the dictates of the VAR. The other two—what will be called the “PAP” and “Reasons–Responsiveness” rationales—are of the first sort: they identify features on the basis of which the VAR distinguishes among defendants that speak to a difference in desert of punishment.


The Evidentialist Rationale

An adequate philosophy of mind will explain the fact that there is something private about our mental lives. We are wrong more than we like to admit about what’s going on between our ears, but we nonetheless have access to it in a way that others do not. Despite this privacy, however, desert of punishment for wrongdoing turns crucially on the mental states of the wrongdoer. If we are to give punishment to only and all those who deserve it, we must somehow overcome the privacy of the mental in our assessments of who deserves to be punished. We have tools for doing this, perhaps most importantly the very same tools that we use to overcome the barrier of privacy in virtually every interaction that we have with any other human being: in the criminal law, that is, we exercise the very same tools for “reading minds” that we use when we make eye contact with a stranger in the elevator. But when there is a great deal at stake in our judgments about what others are thinking—as there is when we inquire in order to decide whether and how to punish—we need a greater degree of certainty than we need in most human interactions. We need extremely good evidence of what is going on in the minds of those whom we might punish. And one might think that we necessarily lack that kind of evidence in the absence of some voluntary act that evidences the private mental states that we need to know about in order to know what kind of punishment is deserved. On this view, it is because morality requires punishers to have adequate evidence of facts that are difficult to evidence—namely mental states—that the VAR is justified. Call this the “Evidentialist Rationale” for the VAR.


The Evidentialist Rationale provides a satisfactory explanation for our allowance of criminal liability for omissions, even if they fall short of voluntary actions. What a person does not do sometimes tells us all we need to know about his desert-relevant mental states. It should be no surprise that the absence of sufficient concern for others, for instance, could be properly evidenced by the absence of action, at least in some circumstances; there are things that people who are sufficiently concerned would do, and so the failure to do them can evidence the absence of sufficient concern.


However, precisely what makes it possible to explain the law’s treatment of omissions under the Evidentialist Rationale undermines the case for thinking that that rationale captures the relevant moral principle enshrined by the VAR. Omissions can provide satisfactory evidence of desert-relevant mental states even if omissions are not voluntary acts. In fact, there are many sources of adequate evidence of such mental states other than voluntary acts. Involuntary actions tell us a great deal about mental state—think of blushing. In fact, because it is much harder to prevent involuntary manifestations of mental state than voluntary manifestations, involuntary actions sometimes provide significantly better