Robert T. Albrecht

(Department of American Studies, Keimyung University, South Korea)

 

 

Abstract: In western common law nations, crime is generally viewed as the combination of evil intent (mens rea or “guilty mind”) with a forbidden act (actus reus or “wrongful act”). As long ago as the 18th century, Sir William Blackstone in his Commentaries wrote that mens rea or a “vicious will” was an essential element of a crime. Coupled with that legal doctrine, there is a strong cultural belief in personal or individual responsibility in many western societies, meaning that only individuals who actually commit a crime should be held liable and punished for that criminal act. Nevertheless, since the mid-19th century, primarily due to technological changes wrought by the Industrial Revolution, there has been a trend towards the creation of regulatory and special public-welfare statutes in United States law that eliminates the mens rea element for a number of crimes, thus making them strict liability offenses whereby only the actus reus is required without a need to show mens rea to establish guilt. In other words, even accidents can potentially be crimes under certain circumstances. Also, in some instances with these public-welfare offenses, corporate officers (managers) face vicarious criminal liability for the actions of their subordinates. That is, corporate officers who have personally done no wrong can be held criminally liable for the criminal acts of their employees. Thus today, corporate officers in some instances are potentially at risk of lengthy incarceration for crimes of which they had no knowledge or intent to commit. This paper will provide an overview of the evolution of this legal movement towards strict, vicarious, criminal liability of corporate officers — the Responsible Corporate Officer Doctrine. It will begin by explaining the purpose as well as the legal and social rationales for the creation of public-welfare statutes. Then a review of the safeguards in place that serve as a shield to preclude abuses of this special legal power is provided. Finally, some comments regarding possible implications of this legal development are made insofar as 21st century business operations in the United States are concerned.

 

 

Key words: responsible corporate officer doctrine; public welfare statutes; vicarious liability; criminal

liability; strict liability

 

JEL codes: K0, K4