In 2017, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy by text message, but imposed a sentence of only 15 months. The conviction was unprecedented in imposing homicide liability for verbal encouragement of apparently voluntary suicide. Yet if Carter killed, her purpose that Roy die arguably merited liability for murder and a much longer sentence. This Article argues that our ambivalence about whether and how much to punish Carter reflects suicide’s dual character as both a harm to be prevented and a choice to be respected. As such, the Carter case requires us to choose between competing conceptions of criminal law, one utilitarian and one libertarian. A utilitarian criminal law seeks to punish inciting suicide to reduce harm. A libertarian criminal law, on the other hand, justifies voluntary suicide as an exercise of liberty, and incitement of suicide as valuable speech. Utilitarian values are implicit in the foreseeability standards prevailing in the law of causation, but libertarian values are implicit in the reluctance of prosecutors to seek, and legislatures to define, homicide liability for assisting suicide. The prevalence of statutes punishing assisting—but not encouraging—suicide as a nonhomicide offense reflects a compromise between these values. These statutes are best interpreted as imposing accomplice liability for conduct left unpunished for two antithetical reasons: it is justified in so far as the suicide is autonomous and excused in so far as the suicide is involuntary. This explains why aiding suicide is punished, but less severely than homicide. Yet even these statutes would not punish Carter’s conduct of encouragement alone. Her conviction although seemingly required by prevailing causation doctrine, is unprecedented.

Is sex obtained by lies an act of lawful seduction or criminal rape? This deceptively simple question has baffled courts and scholars for more than a century. In an influential recent article, Yale Law Professor Jed Rubenfeld argued that our ambivalence towards this question generates what he called the “riddle of rape-by-deception”. The riddle is that if rape is defined as having sex without consent, then rape statutes should prohibit sex by deception just as much as they prohibit sex by force. Yet they don’t. So either rape statutes are guilty of a huge, inexplicable oversight or rape law is about something other than sex without consent. This Article shows that the riddle of rape by deception is based on a misunderstanding of the kind of consent that lies at the heart of modern rape reform statutes. Properly understood, the chief goal of contemporary rape laws is to neutralize the coercion that is inherent in sexual relationships that take place in a male dominated society. Since minimizing deception is only tangentially related to this goal, respect for the kind of autonomy that rape law is primarily designed to protect is compatible with a kind of consent that only selectively prohibits deception. This solution to the riddle of rape by deception not only preserves the conceptual framework that undergirds modern rape statutes, but also sharpens our understanding of the interests that contemporary rape reform is designed to protect.

Most people support laws that seek to reduce the suffering of animals. Yet animal cruelty statutes and other kinds of animal welfare laws are under sustained attack by the so-called abolitionists. Animal rights abolitionists claim that it is categorically wrong to treat animals as commodities, and animal welfare laws should be opposed because they do not alter the property status of animals. Abolitionists also claim that animal welfare regulations do not meaningfully reduce animal suffering. In fact, abolitionists argue that such statutes likely increase future animal suffering, either by delaying the advent of abolition or by soothing the conscience of those who want to continue consumption of animal products. This Article contends that this claim is false and in tension with the core philosophical commitments of abolitionism. There is simply no empirical evidence that supports the counterintuitive claim that animal welfare laws do not meaningfully reduce animal suffering. In fact, both intuition and the few empirical studies that exist suggest that animal welfare statutes do reduce animal suffering. If animal welfare regulations succeed in meaningfully reducing animal suffering, then abolitionists must confront what this Article calls the “abolitionist’s dilemma.” On the one hand, abolitionists could embrace animal welfare regulations, in which case their core opposition to laws that presuppose the property status of animals would be compromised. On the other hand, they could oppose animal welfare regulations that reduce animal suffering solely because they continue to commoditize animals. This would reveal that abolitionists are willing to sacrifice animal welfare in the present with the hopes of achieving an uncertain and unlikely abolition in the future. Not caring about present animal suffering would make the abolitionist position not only politically unpalatable, but also ethically unattractive in a most profound kind of way. As a result, abolitionists should embrace animal welfare statutes that meaningfully reduce suffering, even if doing so means that the abolitionist program as we know it would cease to exist.

The first section of this article describes criminal law's parochialism. The second section discusses the histories and functions of comparative criminal law. The third section discusses selected topics in comparative law, such as punishment theory, victims, jurisdiction, the principle of legality, an analysis of criminal liability, and general principles of criminal liability. The last section discusses comparative criminal law in context. The discussion notes that comparative criminal law is best seen as one way to gain critical distance from a given system of criminal law by placing it within a larger context.

O presente estudo analisa o tratamento jurídico dado aos animais e às chamadas “não-­‐‑pessoas”, considerando a possibilidade de os mesmos serem considerados “vítimas” dos delitos. Procura-­‐‑ se quebrar, deste modo, o pensamento de que o Direito Penal deve visar somente à tutela de direitos cocedidos aos seres humanos. Daí a necessidade de se distinguir personalidade de humanismo, levando-­‐‑ se em conta que os tribunais e os críticos freqüentemente recorrem a definições artificiais de personalidade, com o objetivo de atender a complexas questões normativas sobre os direitos e obrigações dos animais não humanos. Desta forma, a análise de tais conceitos é realizada por meio da teoria do “tudo ou nada” e teoria de “categorias de personalidade”, buscando resolver a difícil questão sobre quem deve ser considerado vítima.

This essay discusses the “Evil Waiter Case,” a famous hypothetical fact pattern that has been the subject of much debate in the German, Spanish, and Latin American criminal law literature, but that unfortunately has not found its way into Anglo-American scholarly writings. The case presents us with a waiter who notices that the filet mignon she is taking to her assigned table is covered in a poisoned mushroom wine sauce. She nevertheless takes the dish to the table. The patron eats the poisoned filet mignon and dies several minutes later. Did the evil waiter kill the hungry patron or did she merely let him die? This essay argues that the evil waiter’s conduct shares morally relevant features of both actions and omissions, although it is neither purely active nor purely omissive conduct. It is, for lack of a better word, an “actmission” that is more blameworthy than a pure omission but less worthy of condemnation than purely active wrongdoing. Conduct counts as an actmission if it amounts to a failure to rescue (e.g. waiter fails to rescue patron) that is accomplished by engaging in a willed bodily movement (waiter places dish in front of patron). As a result of the hybrid nature of her conduct, the evil waiter should be punished more severely than if she had merely failed to rescue the patron, but less harshly than if she had actively killed the patron. More importantly, the Evil Waiter Case reveals that judges should not be forced to describe criminal conduct as either an act or an omission. Instead, American criminal law ought to recognize “actmissions” as a distinct category of conduct. Such actmissions should be punished more than pure omissions but less than entirely active conduct. Criminal law would thus be better served by replacing the act/omission distinction with the act/omission/actmission tristinction.

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Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings.First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue that the best interpretation of IHL would have required the SEALs to capture bin Laden in conditions short of surrender, if he was in fact manifestly defenseless or otherwise could have been readily captured with little risk.Second, we take seriously the possibility that the law should tolerate some targeted killings under conditions that are justified neither by reference to IHL nor by reference to the traditional justifications available in peacetime. Drawing upon the example of Colombian crime family leader Pablo Escobar, who died in a police raid in 1993 in circumstances suggesting the authorities were not interested in capture, we suggest that targeted killings in these circumstances may be morally — if not legally — justified when (1) killing the targeted individual will protect society from a serious threat, (2) the individual is undeniably culpable for past atrocities, and (3) trying the individual is either logistically impossible or extraordinarily dangerous.Although we conclude that the bin Laden killing does not clearly satisfy the third criterion, this model nevertheless provides — in important ways — a superior framework for understanding public responses to bin Laden’s death than does the war paradigm.

This chapter presents an authoritative overview of self-defense against the psychotic aggressor. More specifically, it examines whether one can justifiably kill a faultless, insane assailant to save himself or another from imminent and serious harm. It considers the disagreement among scholars as to whether the defensive response should be considered justified or merely excused, or whether the specific ground of acquittal should be self-defense or necessity. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as proportionality, self-defense against wrongful attack, justification of homicide against innocent aggressors without denying their innocence, and problems with the autonomy theory of self-defense.

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal scholars and philosophers reply that, even if it turns out that human conduct is fully determined by forces over which they lack control, we ought to nevertheless believe in free will and thus continue to blame actors for engaging in wrongful conduct. They argue that we ought to rationalize free will in this manner because dispensing with free will is potentially catastrophic to human relationships, calling into question our judgments about blame and praise and, thus, about criminal responsibility and punishment. This Article contends that this rationalization is wrong and unnecessary. The fact of free will is not essential to maintaining a healthy society and a well functioning system of criminal justice. Although retribution could not be invoked as a reason for imposing punishment if humans are not capable of free choice, punishment could still be justified on consequentialist grounds. In a world without free will, the purpose of punishment would shift from giving to the offender what he deserved to protecting society from dangerous individuals who are nevertheless not to blame for their transgressions. Interestingly, this would likely lead to a more economically efficient and humane system of criminal justice that relies less on incarceration and more on less intrusive but equally effective methods of social control.

In this essay I argue that, contrary to what most criminal law scholars believe, consent does not operate as a justification that relieves the actor of liability for conduct that admittedly satisfies the offense elements of battery. Rather, I contend that consent is only relevant to battery liability when, in conjunction with other factors, it modifies the definition of the crime in a way that reveals that the defendant’s act does not actually fall within the range of conduct prohibited by the offense. The argument proceeds in three parts.In Part I, I argue that there are three ways of conceiving the interest sought to be protected by the offense of battery. These approaches provide different accounts of the exculpatory nature of consent in battery cases, none of which is compatible with the claim that consent operates as a justification defense.In Part II, I argue that, contrary to what several criminal theorists have argued, the offense of battery does not seek to protect personal autonomy. Therefore, I claim that the exculpatory role of consent in cases of battery cannot be explained by claiming that recognizing consent as a defense vindicates the victim’s autonomy. Instead, I suggest that consent is relevant only insofar as it reveals that the infliction of bodily harm was socially acceptable.In Part III, I argue that consent to battery currently operates as a factor that modifies the definition of the offense in a way that demonstrates that the defendant did not engage in the type of conduct that the legislature desired to prohibit as battery. Furthermore, I claim that the offense of battery seeks to prevent the infliction of non-trivial physical harm in circumstances where the infliction of such harm is not considered a normal occurrence given current societal practices. Consequently, I suggest that consent is relevant in cases of battery only when, in conjunction with other factors, it reveals that the perpetrator’s infliction of bodily harm was a normal occurrence rather than an extraordinary or regrettable event.

In this article I examine three borderline cases in which it is not clear whether a confession had been obtained in violation of the nemo tenetur principle (i.e. the rights against self-incrimination and forced inculpation). The case of the false confession presents a situation in which a person made a voluntary confession but the overwhelming evidence pointed to the falsity of the statements. In contrast, the confession obtained in the case of the truth serum is of high probative value. However, it could be argued that the suspect did not voluntarily decide to incriminate himself, given that he confessed when he was under the effect of a drug that worked as a truth serum. Lastly, in the case of the unnecessary threat, the police threatened with physically harming the suspect if he refused to confess. The suspect, however, indicated in a judicial hearing that the threat did not influence in any way his decision to confess. In order to provide solutions for these three borderline cases, I argue that the nemo tenetur principle should be understood as a safeguard against the use of unacceptable methods of police interrogation. The trustworthiness or voluntariness of the statement may be important in other contexts, but they should not definitively determine the admissibility of a confession pursuant to the nemo tenetur principle. Furthermore, taking a cue from Stuart Green’s writings on lying and cheating, I develop a novel framework that will assist in the identification of improper methods of interrogation that should be considered at odds with the rights that are guaranteed pursuant to the nemo tenetur principle. The techniques that should be banned in accordance with this theoretical framework include those that involve the suspect's exploitation by the police, the use of physical or psychological coercion against his person, the use of a certain kind of deception, or the transgression of a mutually agreed upon rule with the purpose of obtaining an undue advantage over the suspect. After developing this framework, I end by concluding that the statement obtained in the case of the false confession was not secured in a manner incompatible with the suspect's constitutional rights. Despite the questionable trustworthiness of the statement, it cannot be asserted that the police obtained it by employing inappropriate interrogation techniques. I further argue that the confession secured in the case of the truth serum was not obtained in violation of the right against self-incrimination either. Considering that the police had no reason to know that the suspect was under the influence of a drug that reduced his inhibitions, it cannot be argued that they used unacceptable methods of interrogation to obtain the confession. Finally, I contend that the confession secured in the case of the unnecessary threat was obtained in a manner incompatible with the nemo tenetur principle. Despite the fact that the suspect's statement in this case was entirely voluntary and highly trustworthy, the interrogation techniques used by the police to obtain the confession were repugnant. This alone should be enough to justify not admitting the confession into evidence. The difficulty of explaining this conclusion by appealing to the confession's voluntariness or trustworthiness counts as a powerful reason in favor of understanding the nemo tenetur principle as a safeguard against the use of inappropriate methods of interrogation rather than as a mechanism for securing the reliability or voluntariness of confessions.

As the contributions to this two-part special issue demonstrate, Spanish and Latin American criminal theory has attained a remarkable degree of sophistication. Regrettably, Anglo-American scholars have had limited access to this rich body of literature. With this volume, the New Criminal Law Review has taken a very important first step toward rectifying this situation.Although the articles written for this special issue cover a vast range of subjects, they can be divided into four main categories: (1) the legitimacy of the criminal sanction, (2) the punishability of omissions, (3) the challenges that international criminal law and the fight against terrorism pose to criminal theory, and (4) the theory of justification and excuse. The articles pertaining to the first two categories will appear in the first half of this special issue (Volume 11, Number 3) and the pieces belonging to the third and fourth categories will be published in the upcoming second half (Volume 11, Number 4). In accordance with this general structure, in the pages that follow I will provide a brief summary and critique of the pieces contained in both parts.

This article examines the implications of the Michael Vick case for the criminal law in general and for the law of victimhood in particular. It takes as its point of departure the NFL star's agreement to pay close to one million dollars to the various entities that assumed custody of the pit bulls in order to make restitution for the full amount of the costs associated with the disposition of dogs that were involved in his illegal operation. According to the agreement, the authority to order such payments stems from 18 U.S.C. ý 3663, which allows for the issuance of orders of restitution to victims or other persons harmed by the commission of the offense. The trial of Michael Vick illustrates how our current criminal laws increasingly treat non-human creatures as victims, with of the consequences that this entails, including the possibility to order that restitution be paid to the animals. Some criminal law scholars would argue that this approach is profoundly misguided, given that the criminal law should only aim to safeguard the rights of humans. In this article it will be contended that this position is flawed because it is grounded on an artificial definition of that mistakenly makes humanhood the constitutive feature of Although there may be good reasons for considering that an entity's humanhood should entitle her to more protection from the legal system than non-human beings, it does not follow that the lack of such a status should preclude access to the protection of the criminal law. The argument will proceed in four parts. Part I attempts to define the contours of This is a particularly difficult task, for the meaning of this concept is notoriously ambiguous. Because of the polysemic nature of the term, its discussion frequently invites confusion, particularly in legal circles. It is not always clear whether it is meant to be used as an alternative to humanhood, as a concept that treats humanhood as a necessary but insufficient condition for personhood, or as a legal term that may encompass beings or entities that are not members of the human race. Ultimately, I will argue that an entity should be considered a person if there are good normative reasons for recognizing that he should be a bearer of rights and obligations, regardless of whether the being is human or not. Part II takes issue with what will be called the all or nothing theory of According to this theory, a being is either a full fledged person or not a person at all. This conception of is normatively unappealing, for it is plausible, and sometimes desirable, to talk about alongside with full-blown personhood. This is what I call the theory of personhood, which holds that personhood is a concept that admits of degrees and shades of gray. According to this theory, beings should be considered full-fledged persons if they should be the bearers of of the rights and obligations that our legal system has to offer. Contrarily, they should be considered partial persons if they should only have the privilege to enjoy some of the rights that our constitutional and statutory provisions confer to persons. The tiered theory of is normatively appealing, for we sometimes have good reasons to legally discriminate between beings on the basis of their different constitutive features. Part III proposes four different tiers or levels of The first tier of is reserved for born humans and animals that are capable of rationality and self-consciousness, such as chimpanzees, orangutans and gorillas. The second tier is comprised of sentient fetuses and non-human animals not falling within the scope of the first tier. The third tier encompasses living non-sentient beings, such as fetuses that do not have the capacity to feel, embryos and trees and plants. Finally, the fourth tier of includes non-living entities that should be afforded rights in order to further human interests. The chief example of a fourth tier person is a corporation. Part IV, argues that the fact that certain beings are not born humans should not be an impediment to treating them as victims and as (partial) persons. Since sentient animals and fetuses have the capacity to feel pain, they should have a right to be kept free from the unjustifiable infliction of suffering. If so, it would be sensible to attempt to safeguard such rights by making use of the criminal sanction. Therefore, I will conclude that victimhood depends on second tier rather than humanhood.

The essay provides a broad overview of Spanish criminal law with multiple references to existing caselaw and authorities.

In the article it is argued that, contrary to what prominent animal law scholars such as Gary Francione claim, we have decided to criminalize harm to animals primarily because we are concerned about the wellbeing of such creatures, not because doing so furthers some other human interest. I do so in four parts. Part I provides a brief historical analysis of animal cruelty laws that will show that, although many of these statutes were originally enacted as a way to protect private property, there has been a marked trend, specially in recent times, to punish animal cruelty regardless, and some-times despite, the property interests involved. In Part II, the notions of harm, victimhood and consent will be explored in order to lay the groundwork for the claims that will be put forth in the remainder of the article. In light of the issues that animal cruelty statutes raise, particular attention will be paid to discussing John Stuart Mill's and H.L.A. Hart's conception of the harm principle. Part III examines five different theories that might be advanced in order to explain the interest that we seek to promote by punishing acts that are harmful to animals, namely: (1) protection of property, (2) protection against the infliction of emotional harm to those who have ties to the injured animal, (3) prevention of future harm to humans, (4) enforcement of a moral principle, and (5) protection of the animals themselves. In Part IV, I will try to explain why it is not necessarily the case, as many animal law scholars have argued, that because animal cruelty statutes allow for the infliction of harm to animals as a result of hunting, scientific and farming activities, the interest primarily sought to be protected by these laws is something other than the protection of animals. This argument is ultimately flawed because it is premised on a misunderstanding of the structure of criminal offenses in general and of anti-cruelty statutes in particular. Properly understood, the existence of privileges that allow people to infringe the prima facie norm against harming animals merely reveals that society (rightly or wrongly) believes that there are countervailing reasons that justify harming the interest sought to be protected by the offense, not that the prohibitory norm was not really designed to protect animals in the first place.