Bergelson: Does Fault Matter?

Gabrielle Johansson
3 min readNov 18, 2020

Type 1

Vera Bergelson, in her article Does Fault Matter, discusses the complicated questions which surround the conviction of innocent people via strict liability. Bergelson simplifies the dilemma at hand down to the question of “what defines a criminal wrong — social wrong or the perpetrator’s culpability?” (377). Bergelson points out that harmful outcomes are independent from culpability. It is only the fact that they tend to correspond together that this might seem to be the case. This fact further complicates the ideal values in place in the criminal justice system, namely, that ideally no innocent person should be convicted as guilty and the fact that there are thousands of strict liability laws (Ibid). Bergelson’s main goal therefore is to discuss strict liability and frame it under a conversation about culpability. She offers many arguments for both sides and yet ends at the conclusion that strict liability is morally impermissible.

Bergelson goes on to argue that, in the technical sense of the word, punishment can never be inflicted on an undeserving person. Because punishment necessitates justification via culpability, the undeserving person is instead wronged (378).

With this in mind, Bergelson continues to offer counter points for and against strict liability — that is, convictions which do not factor in mens rea and leave potential for the innocent or undeserving to be wrongfully convicted. Bergelson talks about how, even though a harmful act might be done without mens rea, moral residue might call for the defendant to be liable to the wrong (379). This liability has a range proportional to the harm done: accidently knocking someone over on a public bus makes the clumsy person liable to feeling guilty or needing to apologize while the “innocent aggressor,” who might be under duress or insanity, might be liable to conviction and sentencing (380). The issue at stake here is clear: “if an innocent person may incur liability, why may he not incur punishment?” (Ibid). Bergelson then notes to what degree conviction should be had in proportion to the harm done and to what end the conviction of an innocent, yet harmful, defendant should have. Bergelson brings in the Model Penal Code and Michael Moore to help answer these questions. Both affirm the significance of numbers, specifically the number of citizens of the general public weighed against the innocent defendant (381).

Bergelson offers yet another justification commonly used by those who advocate for strict liability laws. Some say that criminalizing the innocent via strict liability has been a part of the criminal justice system for a long time (386). To this Bergelson responds, “there is significant difference between reluctantly accepting a two to five percent risk that the defendant may be innocent and knowingly — with 100 percent certainty — punishing a defendant despite any fault on his part. The former is problematic; the latter is unacceptable” (387).

Bergelson’s account of strict liability and the conviction of innocent people is that it is morally impermissible. Innocent people, those which have no mens rea, that is no knowledge, are not negligent, are not intentional, should not be convicted. In other words, mens rea should be the main factor in the conviction of the defendant and those strict liability laws which convict those who do not possess mens rea (though some strict liability laws do help convict the guilty as we have noted from previous readings) should not be upheld in the criminal justice system.

Bergelson, Vera. “Does Fault Matter?” Criminal Law and Philosophy, vol. 12, 2018, pages 375–392.