The consequences of your actions matter to the criminal law in a couple of different respects:

(1) The law distinguishes between successful attempts and unsuccessful attempts, so that defendants who are guilty of a successful attempt are treated worse under the criminal law than defendants who are guilty of an unsuccessful attempt – when the difference between a successful and an unsuccessful attempt can just be a matter of luck.

(2) Crimes of constructive liability make a defendant who is already guilty of committing one criminal offence liable for a much more serious offence if his initial crime has certain consequences; and this is so even if the defendant did not intend or foresee that his initial crime would have those consequences. Examples of constructive liability in the criminal law are: (a) murder (where the defendant merely intended to cause gbh to his victim, but death resulted as well); (b) constructive manslaughter; (c) causing death while driving uninsured/disqualified/unlicensed; (d) maliciously inflicting gbh (where all that was foreseen was that the victim would suffer some kind physical harm); (e) assault occasioning actual bodily harm; (f) accomplice liability under the law on joint enterprise.

This post attempts to explain: (1) why the law might distinguish between successful and unsuccessful attempts; and (2) why the law might recognise crimes of constructive liability.

Successful and unsuccessful attempts

Contrast the following two cases:

Hit: Assassin trains his gun on Target, 500 yards away. Assassin pulls the trigger and Target is shot dead.

Miss: Assassin trains his gun on Target, 500 yards away. Assassin pulls the trigger but a sudden gust of wind means that the bullet just misses Target.

In Hit, Assassin will be guilty of murder and get a mandatory life sentence; in Miss, Assassin will only be guilty of attempted murder and won’t get a mandatory life sentence. Why the difference?

A lot of people think that the law should treat Assassin the same in both Hit and Miss as his intentions were exactly the same in both cases, and it’s just a matter of luck that Assassin killed his victim in Hit but not in Miss. I think what this view overlooks is that in both Hit and Miss, Assassin does two things wrong, not one. In both cases, Assassin tries to kill Target – and that’s wrong. But the other thing wrong that Assassin does is that he knowingly exposes Target to the risk of suffering bad luck, by being killed. When Assassin pulls the trigger, he makes it a matter of luck whether or not Target is killed, and he was aware that he was doing that.

So we need to punish Assassin both for (1) trying to kill Target and for (2) knowingly exposing Target to the risk of suffering bad luck. But how do we do this? My suggestion is that we punish Assassin for (1) through a fixed penalty (say, 15 years), and we punish Assassin for (2) through a conditional penalty which Assassin will incur if Target does end up suffering bad luck and is killed. This conditional penalty is a fitting penalty for the wrong committed by Assassin in knowingly exposing Target to the risk of suffering bad luck: if Target ends up suffering bad luck, then Assassin will also suffer bad luck by incurring the conditional penalty.

The result is that we end up punishing Assassin more in Hit than in Miss. In Hit, Assassin incurs both the fixed penalty and also the conditional penalty, as the bad luck that he knowingly exposed Target to the risk of suffering has materialised. But in Miss, Assassin only incurs the fixed penalty: Assassin shares in Target’s good luck – as Target is not killed, Assassin escapes the conditional penalty.

Constructive liability

Contrast the following two cases:

Scary: Man and Wife are driving home from a party, where Man caught Wife kissing another man. Man (who is driving) says to Wife, ‘When we get home, I’m going to beat you to an inch of your life.’ Wife is so scared by this threat that she jumps from the moving car and scars her knees.

Funny: Man and Wife are driving home from a party, where Man caught Wife kissing another man. Man (who is driving) says to Wife, ‘When we get home, I’m going to beat you to an inch of your life.’ Wife laughs and says ‘I’d like to see you try.’

In Scary, Man is guilty of assault occasioning actual bodily harm; while in Funny he is only guilty of an assault. And this is so even though Wife’s reaction to Man’s words may have just been a matter of luck. Why the difference?

We can’t use the ideas discussed in the previous section to explain the difference between Scary and Funny as Man may not have knowingly exposed Wife to the risk of suffering actual bodily harm in either case. (In Scary, he may have been completely astonished that his Wife would react to his threat by jumping from a moving car.) So we need a different idea to explain why the law treats these two cases differently.

We can draw on the idea of a moral threshold to explain why the law might treat Man more harshly in Scary than in Funny.  The idea is that Man crosses a moral (actually, legal – but ‘moral’ sounds better) threshold when he threatens Wife with a beating: he does something wrong. We don’t want him to do this. Now – how do we stop him from crossing that threshold? My suggestion is that by putting Man on notice that if his threat causes his Wife to suffer actual bodily harm, he will be subject to a more serious penalty than he would be if his Wife did not suffer any such harm, the law does two things to help encourage Man to stay the right side of the line of not threatening his Wife:

(1) The law makes Man uncertain as to what punishment he will receive if he crosses the moral threshold and threatens his Wife. He won’t know whether he will get the standard penalty for committing an assault, or a more serious penalty in the event that his assault results in his Wife suffers actual bodily harm. This uncertainty can be expected to deter Man from crossing the moral threshold of threatening his Wife as it makes it much harder for him to determine whether threatening his Wife would be ‘worth it’. (Note that there is no rule of law objection to placing Man in a position of uncertainty as to what punishment he will receive if he assaults his Wife, as Man could easily avoid the uncertainty by simply not assaulting his Wife.)

(2) If Man tries to calculate what the probability is that he will end up receiving a penalty for assault occasioning actual bodily harm, he will be forced to think about what the chances are that his assault will result in his Wife suffering actual bodily harm. In thinking about this, he may be brought to realise what effects his assaulting his Wife will have on her, and will come to the conclusion that given those effects, he should not assault his Wife and will voluntarily decide not to cross the threshold of assaulting his Wife.

So constructive liability may encourage people not to cross the moral thresholds to which constructive liability attaches by: (1) deterring them from crossing those thresholds by making them uncertain what liability they will incur if they cross that threshold; and (2) persuading them not to cross those thresholds by making them reflect on what the effects of crossing those thresholds will be.