From Actual to Legal Cause

From Actual to Legal Cause

Actual cause is the first of two steps in deciding whether a defendant caused a result. Under Model Penal Code § 2.03(1)(a), conduct is the cause of a result when it is an antecedent but for which the result in question would not have occurred.¹ Paragraph (b) then adds that the relationship between the conduct and the result must also satisfy any additional causal requirements imposed by the Code or by the law defining the offense.² The two paragraphs ask different questions. The first is a factual counterfactual: delete the conduct and ask whether the result would still have occurred. The second asks whether the actual result is similar enough to the intended or risked result, and came about in a similar enough manner, that the defendant may fairly be held responsible for it.³ The earlier sections of this chapter worked inside the first question, and this one shows how it hands off to the second.

The order of the two questions is fixed because the second has nothing to operate on unless the first is answered yes. A fairness inquiry about how closely a result tracks what the defendant intended presupposes that the defendant's conduct helped produce that result, and an event that was not a cause in fact cannot be a proximate cause. A familiar classroom illustration shows the gate closing. Jake, hoping to inherit from his wealthy Aunt Bea, drives a needle through the chest of a cloth doll wearing a nametag that reads Bea, and the next day she dies of a heart attack. Intent is present and no other element of murder looks missing, yet Jake is not guilty, because his conduct played no part in the chain of events that ended in her death and the timing was coincidence.⁴ Once the counterfactual fails, no question of foreseeability or fairness remains to be asked.

Passing the gate does not finish the inquiry. Change the facts so that Jake instead buys Aunt Bea an all-expense trip to Tahiti in the hope that her plane will crash, and the plane does crash on the return flight. But for the gift she would not have been on that plane, so cause in fact is established, yet Jake is still not guilty of murder because his conduct was not a proximate or legal cause of her death.⁵ A Virginia appellate court drew the same line in King v. Commonwealth, where King and a copilot, flying a plane loaded with marijuana, became lost in fog and crashed into a mountainside; King survived and the copilot did not. The crash would not have happened but for the drug crime, but the court reversed the felony-murder conviction because the crash was not a foreseeable result of the felony, since the contraband cargo had not made it more likely.⁶ In both situations the factual link was undisputed, and the whole dispute concerned whether the way the death came about was close enough to what the defendant did or intended to carry responsibility.

The later subsections of § 2.03 supply the vocabulary for that second question by measuring the actual result against something else. Subsection (2) governs offenses in which purposely or knowingly causing a result is an element, and it provides that the element is not established if the actual result is not within the purpose or contemplation of the actor, unless the result differs only in that a different person or different property is injured, or in that the harm designed or contemplated would have been more serious than the harm caused.⁷ The other exception covers a result involving the same kind of injury or harm as the one designed or contemplated, provided that the result is not “too remote or accidental in its occurrence” to have a just bearing on the actor's liability or on the gravity of the offense.⁸

Subsection (3) repeats the pattern for offenses in which recklessly or negligently causing a result is an element. The yardstick becomes the risk of which the actor is aware or, in the case of negligence, of which the actor should be aware, and the two exceptions are measured against the probable result instead of the designed one.⁹ Subsection (4) addresses offenses of absolute liability, which have no mental state to measure against, and it substitutes a probability requirement: the element is not established unless the actual result is a probable consequence of the actor's conduct.¹⁰ These provisions are previewed here only. Their application belongs to the next reading.

One familiar variation shows how the two steps meet. When an actor aims at B intending to kill, misses, and kills C, the but-for requirement is met, since C would be alive without the shot, and the Code's provision on a different person being injured keeps that difference alone from defeating the element.¹¹ That treatment corresponds to what the common law calls transferred intent.¹² Whether the actor is liable for C's death, and for which offense, is a legal-cause question, so the example sits on the border between this reading and the next.

The two-step design has a reason that can be read off its structure. Actual cause alone would make a defendant answerable for every result that the conduct happened to precede, however far the result lay from anything the defendant intended or risked, so the second step reconnects responsibility to culpability by asking whether the result is close enough to the intended or risked one to bear on liability and on the gravity of the offense. Keeping the steps separate lets the first remain a factual question with a yes-or-no answer and leaves the second to carry the judgment about fairness, which is where reasonable disagreement belongs. Civil law divides the work the same way: cause in fact asks the but-for question, while proximate or legal cause is a policy decision to deny liability for otherwise actionable conduct even though cause in fact has been established.¹³ Securities-fraud litigation uses the same two-part structure, treating legal cause as the law's basis for limiting liability even when cause in fact is proven.¹⁴

The next reading applies the second question to the cases that strain it. Those include intervening and superseding causes, a victim whose preexisting weakness makes a wound fatal, transferred intent, a victim who dodges a bullet and drowns, a victim who takes their own life to escape pain, and negligent medical treatment of a wound.¹⁵ Each is a problem about the second step, because in each the defendant's conduct is ordinarily a but-for cause and the dispute concerns whether the defendant's responsibility reaches the result as it actually occurred. This chapter leaves them for that reading.

The recurring errors run in opposite directions. One is stopping at but-for causation and announcing liability, which skips the question whether the result is close enough to the intended or risked one. The other is discussing foreseeability for a defendant whose conduct was never a cause in fact, which spends time on a question that the failed counterfactual has already closed.¹⁶