On the Mental State of Consciousness of Wrongdoing

35 Pages Posted: 21 Mar 2012  

Samuel W. Buell

Duke University School of Law

Lisa Kern Griffin

Duke University School of Law

Date Written: March 19, 2012

Abstract

Mistake about or ignorance of the law does not exculpate in criminal law, except in limited circumstances. Doctrine and theory cognate to this principle are, by now, well developed and understood. But might an actor's awareness of the illegality or wrongfulness of her conduct inculpate — that is, constitute a form of mens rea that establishes or aggravates liability? Trends in recent adjudication in white collar crime suggest that the answer is yes. This article, part of a symposium issue on Adjudicating the Guilty Mind, takes the first pass at describing the mental state of “consciousness of wrongdoing,” assessing its fit with the conceptual architecture of substantive criminal law, and uncovering the many challenges of proof and adjudication that this concept poses. Three conclusions broadly emerge from this initial, and somewhat truncated, inquiry: first, inculpating an actor for adverting to the legal or normative significance of her conduct is an attractive means of dealing with difficult line-drawing problems presented by many white collar offenses; second, the method can be justified on both retributive and deterrent grounds; and third, the practice requires much more thought and precision at the operational level, lest problems inherent in the structure of criminal adjudication be exacerbated in cases in which liability depends on the idea that an actor “knew what she was doing was wrong.”

Suggested Citation

Buell, Samuel W. and Griffin, Lisa Kern, On the Mental State of Consciousness of Wrongdoing (March 19, 2012). Law and Contemporary Problems, Vol. 75, No. 2, 2012. Available at SSRN: https://ssrn.com/abstract=2026210

Samuel W. Buell (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7193 (Phone)

Lisa Kern Griffin

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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