Renouncing the Attempt Versus Perpetration Distinction

Abstract

Legal and moral luck goes against the basic principle of criminal law that responsibility ascriptions are based on the mental state of the perpetrator, rather than merely the outcome of her action. If outcome should not play a decisive role in responsibility ascriptions, the attempt versus perpetration distinction becomes more difficult to justify. One potential justification is that we never know whether the attempter would not have resigned from pursuing her criminal intent even at the last moment. However, this paper argues that resigning from criminal intent and trying to stop the criminal outcome, which is called the renunciation defense, can be just as subject to outcome luck as the attempt versus perpetration distinction. And yet the availability of the renunciation defense in court is outcome dependent. I show with a series of experiments (N=479) that outcome dependence for the renunciation defense is perceived as unjust and discuss the implications for the renunciation defense as well as attempt versus perpetration distinction.

Keywords: renunciation defense, moral luck, legal luck, responsibility, moral psychology, attempt law

JEL Classification: K14