Beyond Willful Ignorance

59 Pages Posted: 16 Dec 2015 Last revised: 11 Mar 2016

See all articles by Alex F. Sarch

Alex F. Sarch

University of Surrey School of Law

Date Written: January 22, 2016

Abstract

This Article investigates the limits of the willful ignorance doctrine as employed in federal criminal law. This foundational rule allows willfully ignorant defendants to be treated as knowing wrongdoers. The willful ignorance doctrine is of increasing importance at the moment in light of the mens rea reform bills currently working their way through Congress. This legislation seeks to establish some form of knowledge as the default mens rea in federal law. Thus, if some version of this law is passed, the willful ignorance doctrine will provide a partial work-around.

Motivated by the central role of the willful ignorance doctrine in federal prosecutions for a range of crimes — from drug offenses to white-collar crime — this Article analyzes a tension between the way federal courts justify the doctrine and the way they apply it. In particular, the Article argues that courts are committed to expanding the doctrine beyond the limits within which it is currently applied. The law allows willful ignorance to substitute for knowledge on the theory that these two mental states are equally culpable. This Article argues that, as a result, the law is also committed to allowing some forms of egregious non-willful ignorance — most importantly, reckless ignorance — to substitute for knowledge when the conditions of equal culpability are met.

Moving beyond the traditional willful ignorance doctrine is especially important in order to combat the incentives that lawyers, accountants and other white-collar professionals have to remain in ignorance of fraud committed by their clients. While the existing willful ignorance doctrine is responsive to conscious efforts to remain in ignorance of fraud in one’s midst, the criminal law does not have sufficient doctrinal tools to counteract the incentives to recklessly allow one’s ignorance to be preserved. This is the gap that the Iterated Reckless Ignorance Principle defended here is meant to fill.

Keywords: Willful ignorance, willful blindness, knowledge, recklessness, aiding and abetting, fraud, culpability, mens rea, legality, duty to investigate, collective knowledge doctrine, white collar crime, mens rea reform

Suggested Citation

Sarch, Alex F., Beyond Willful Ignorance (January 22, 2016). University of Colorado Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2703397 or http://dx.doi.org/10.2139/ssrn.2703397

Alex F. Sarch (Contact Author)

University of Surrey School of Law ( email )

United Kingdom

HOME PAGE: http://www.surrey.ac.uk/law/people/alexander_sarch/

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