Criminal Culpability and the Community (Ohio State Law Journal)

Determining an offender’s criminal culpability is an evergreen challenge. 

It demands a careful blending of the offender’s moral responsibility for the crime with the offense’s identifiable harmful impacts on its victims and society. Far from a mere abstract or occasional theoretical exercise, this evaluative undertaking represents a critical iterative stage before charges can be filed, findings of legal guilt rendered, or sentences imposed. Getting these assessments right is non-negotiable for a functioning justice system that relies on the public’s respect and support.

This article argues that the prevailing view of criminal culpability, the central driver in the millions of criminal cases annually flowing through our justice system, is unduly narrow. More specifically, criminal conduct involves two distinct forms of injury to the victim. One form, physical or emotional harm to victims, is widely acknowledged. However, the other form, wronging by imposing unequal standing on the victim, has been unjustifiably minimized, with significant negative societal and systemic implications. By conveying that they do not consider others’ rights sufficiently important, offenders engage in a form of moral betrayal of both the victim and society. No longer equal with others in the community, the offender, through their blameworthy conduct, subjugates their victim while concurrently elevating their own status.