Legal Cause in Criminal Law

February 15, 2006

As I see it, the question is whether defendant’s reckless conduct ’caused’ the death of the victim.  The problem here is not ‘causation in fact,’ it is ‘legal causation.’  In unusual cases like this one, whether certain conduct is deemed to be the legal cause of a certain result is ultimately a policy question.  The question of legal causation thus blends into the question of whether we are willing to hold a defendant responsible for a prohibited result.  Or, stated differently, the issue is not causation, it is responsibility.  In my opinion, policy considerations are against  imposing responsibility for the death of a Participant in a race on the surviving racer when his sole contribution to the death is the participation in the activity mutually agreed upon.

Commonweath v. Root, 403 Pa. 571 (1961), illustrates the rule I would adopt.  In that case, two persons were racing their cars on the highway.  One of the racers collided with another car, resulting in that racer’s death.  The court reversed the surviving racer’s manslaughter conviction, holding the necessary legal causation to be absent as to a fellow participant in the race, but suggesting legal causation would be present had the victim not been a participant.

The facts of Commonwealth v. Atencio, 345 Mass. 627 (1963), are another illustration.  In that case, three persons were playing ‘Russian roulette’ and one of them shot and killed himself.  A survivor’s conviction for manslaughter, i.e., recklessly causing the death of another, was affirmed.  I would vote to reverse such a conviction.  Since the participants had knowingly and voluntarily joined in a reckless course of conduct, I would not impose liability for manslaughter on the survivors.

It is not unheard of for people to engage in hazardous vocations and avocations.  It could be said, for example, that professional racetrack drivers earn their living by consciously disregarding a substantial risk that death will occur on the racetrack.  Yet, it would probably strike most people as strange if the surviving drivers were prosecuted for manslaughter following a fatal racetrack accident.  But that result could follow from the majority’s analysis of legal causation; that result would not be possible under my analysis.

And some people engage in recreation activities — everything from skydiving to deep-sea diving — knowing they involve a risk of death.  Suppose two fishermen knowingly and voluntarily take a small boat into the ocean even though a severe storm is predicted.  Each encourages the other to do so.  If one drowned in the storm, would we say the survivor “caused” his death?  The majority’s analysis would answer in the affirmative; my analysis would answer it in the negative.

My point is that people frequently join together in reckless conduct.  As long as all participants do so knowingly and voluntarily, I see no point in holding the survivor(s) guilty of manslaughter if the reckless conduct results in death.

State v. Petersen, 522 P.2d 912, 920-922 (Ore. App. 1974).

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