This course will examine philosophical issues (especially moral
philosophical issues) in criminal law, often centering on issues of
culpability ("mens rea" issues). We will look at some specific
defenses (self-defense; provocation, or heat of passion; and 'I
thought s/he consented' as a defense to a rape charge), and at
general issues that arise in connection with most defenses. In
connection with self-defense we will focus mainly on the question of
how to understand 'reasonable' in the requirement that the defendant
reasonably believed that s/he faced an imminent threat and needed to
use force to repel it, but will also address the question of why the
threat should have to be imminent. (In US law it does have to be
imminent; in Canadian and Australian law it does not.)

Rape law cries out for some examination of just what
constitutes sexual consent--and consent more generally.  Should
consent be understood as a performative (a la J.L. Austin), or as a
mental state? Should mistakes as to the other's consent exculpate?
If so, should they have to be reasonable mistakes...and if so, how
should we understand 'reasonable'?

The question of how to understand 'reasonable' also comes up in
connection with the heat of passion defense, according to which the
defendant is to be convicted only of manslaughter, not of murder, if
s/he killed in the heat of passion and if a reasonable person would
have been provoked to lose self-control. In addition, there are
intriguing issues about the nature of self-control, what it is to
lose it, and how much the law should require of us by way of self-
control. A 19th c. British case explains the idea behind the
provocation defense, and its status as merely a partial defense, as
follows:  "Though the law condescends to human frailty, it will not
indulge human ferocity. It considers man to be a rational being, and
requires that he should exercise a reasonable control over his
passions."

In addition to examining issues specific to the defenses
mentioned above and the recurring question of how to understand "the
reasonable person" (until recently, "the reasonable man"), we will
discuss justifications and excuses, and how they differ (a question
that turns out to bear on the issue of reasonableness). We will also
discuss negligence, and address arguments claiming that it should
never be a sufficient mens rea, at least to any serious crime.
	
Readings for this course will include philosophy articles, law
review articles, as well as some cases, and excerpts from the Model
Penal Code. Feel free to contact me in December for more details on
the readings. Readings will be on e-reserves.