Absolute Liability Offenses

Absolute Liability Offenses

Subsections (2) and (3) of § 2.03 share a structure. Each compares the actual result with a mental baseline, the purpose or contemplation of the actor in (2) and the risk of which the actor is or should be aware in (3), and then lists the divergences that still leave the element established.¹ An offense of absolute liability removes that baseline. The law imposes guilt without requiring any culpable mental state toward the result, so there is no design, contemplation, or risk against which to measure what actually happened. Subsection (4) supplies a different test for that setting: when causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor's conduct.²

The substitution follows from what the earlier subsections were doing. The divergence rules treat the gap between the intended or risked result and the actual one as a question of culpability, namely whether the actual result bears justly on the actor's blame, and not as a metaphysical puzzle about causation.³ Once an offense dispenses with fault as to the result, blame can no longer serve as the filter, and but-for causation would be the only link left between the actor and the outcome. That link reaches very far, because almost any harm has some antecedent in the defendant's conduct. An offense with neither a mental-state limit nor a probability limit would therefore hold the actor to results that no one could have anticipated. The probable-consequence requirement restores a limit of the only kind still available, an objective one, by asking whether the result was the sort of thing the conduct could be expected to produce.

New Jersey's Code rests substantially on the Model Penal Code and contains its own counterpart of this rule.⁴ In applying it, the New Jersey Supreme Court explained that causation is a term of art whose meaning varies with the actor's mental state: it means one thing for knowing or purposeful offenses and something else for crimes of strict or absolute liability, such as felony murder.⁵ The felony-murder reference comes from the state statute's own description of the offenses it treats as absolute liability, and the Model Penal Code does not itself endorse that doctrine. Subsection (4) simply governs whatever result offenses a legislature defines without a culpable mental state, and a Georgia provision making a person guilty of murder for causing death in the commission of a felony, irrespective of malice, is another statute of that kind.⁶

Subsection (4) does not define probable consequence, so courts have given the phrase content. The New Jersey court looked to the Code's commentary, which treats the phrase as closely related to foreseeability, and to New York decisions requiring that a death be a reasonably foreseeable and non-accidental consequence of the felony, and it concluded that but-for causation is not enough.⁷ It then gave the phrase working content by borrowing the language its other causation subsections use, so that the result must not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability.⁸ Two examples mark the outer limits. A robber who walks into a bank is not liable for the death of an employee who is electrocuted while pushing the burglar-alarm button, but a robber is liable when a shopkeeper fires at the robber and kills an innocent bystander.⁹

A contrasting approach shows what the probable-consequence limit adds. In People v. Stamp, a California appellate court affirmed first-degree felony-murder convictions after a robbery victim with advanced heart disease collapsed within twenty minutes of the holdup and died of a heart attack. The court reasoned that a felon is strictly liable for killings in the course of the felony and that the doctrine is not confined to foreseeable deaths.¹⁰ That approach asks only whether the felony produced the death. Subsection (4) adds a second question, whether the death was a probable consequence, and that question turns on probability, which the California rule never asked.

The usual error on an exam runs in two directions. A student who applies subsection (2) or (3) as written goes looking for a design or an awareness of risk that the offense does not require. A student who stops once the conduct is shown to be a but-for antecedent skips the only limit the Code supplies for this kind of offense, because but-for causation alone does not establish a result element when absolute liability is imposed.¹¹