Voluntarism, Vulnerability, and Criminal Law: A Response to Professors Hills and O'Hear

Abstract:     
This Response addresses the criticisms of our project by Professors Rick Hills and Michael O'Hear. Before we address those challenges, we first want to reiterate our gratitude to the B.U. Law Review for hosting an exchange based on our article, Punishing Family Status (forthcoming BU LR, December 2008), and to Professors Hills and O'Hear for their careful and subtle analysis of that article.

Additionally, it's worth recapitulating what our bottom-line conclusions are so we can better see if there are any practical disagreements with our critics. Summarizing quickly: we support decriminalization in the cases of parental responsibility laws (based on strict and vicarious liability), bigamy, adultery, and non-payment of parental support; we endorse decriminalizing incest between most adults, though we are divided on certain sub-issues in the incest context; and we are highly skeptical of criminalization in the non-payment of child support context, though concede that more research needs to be done on just how effective criminalization is in achieving compliance. The only area in which we are more or less unconflicted about criminalization is the omissions liability (duty to rescue) context - and, that is where our critics primarily aim their critiques.

This Response focuses on three general points; most of the discussion of those general points, however, comes up in the context of disagreement over the scope and rationale for omissions liability. We begin by explaining how Professors Hills and O'Hear tend to overstate our commitment to voluntariness as a basis for allocating criminal law liability. Second, we address their concern regarding the criminal law's ability to shape people's care-giving choices. Third, we discuss what our commitment to criminal law minimalism requires when it comes to designing family ties burdens. While some differences persist, we hope our Response clarifies a few features of our argument and at the same time narrows the gap between our positions and those of Professors Hills and O'Hear.

A draft of Professor O'Hear's reply can be found at:
http://ssrn.com/abstract=1260891

A final version of Punishing Family Status can be found at:
http://ssrn.com/abstract=1120877

Keywords: criminal law, family law, care-giving, voluntarism, vulnerability

Accepted Paper Series