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Consciousness and Culpability in American Criminal Law

Waseda Proceedings of Comparative Law, Vol. 12, pp, 115-126, 2009

Waseda Bulletin of Comparative Law, Vol. 43, 2010

Fordham Law Legal Studies Research Paper No. 1483880

14 Pages Posted: 7 Oct 2009 Last revised: 15 Apr 2010

Deborah W. Denno

Fordham University School of Law

Date Written: October 6, 2009

Abstract

American law requires a voluntary act or omission before assigning criminal liability. The law also presumes that an individual who is unconscious, such as a sleepwalker, is incapable of a voluntary act. For some criminal defendants in the United States this all-or-nothing approach to the voluntary act requirement can mean the difference between unqualified acquittal if they are found to have acted involuntarily, lengthy institutionalization if they are found to be insane, and incarceration or even the death penalty if their acts are found to be voluntary. In contrast to the law’s dual dichotomies of voluntary/involuntary and conscious/unconscious, modern neuroscientific research indicates that the boundaries between our conscious and unconscious states are permeable, dynamic, and interactive. To enable the law to join science in a more nuanced and just view of the human mind, this article proposes that, in addition to voluntary and involuntary acts, the criminal law recognize a third category - semi-voluntary acts.

Keywords: voluntary, involuntary, consciousness, unconsciousness, insanity, dichotomy, criminal law, punishment

Suggested Citation

Denno, Deborah W., Consciousness and Culpability in American Criminal Law (October 6, 2009). Waseda Proceedings of Comparative Law, Vol. 12, pp, 115-126, 2009; Fordham Law Legal Studies Research Paper No. 1483880. Available at SSRN: https://ssrn.com/abstract=1483880

Deborah W. Denno (Contact Author)

Fordham University School of Law ( email )

Fordham University School of Law
150 West 62nd Street
New York, NY 10023
United States
212-636-6868 (Phone)
212-636-6899 (Fax)

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