The law allows willful ignorance to substitute for knowledge on the theory that these two mental states are equally culpable. This Article argues that, as a result, the law is also committed to allowing some forms of egregious non-willful ignorance—most importantly, reckless ignorance—to substitute for knowledge when the conditions of equal culpability are met. In addition to developing this theoretical argument, the Article argues that some courts already allow reckless ignorance to substitute for knowledge—namely, in cases governed by the collective knowledge doctrine. Allowing reckless ignorance to substitute for knowledge is thus not unprecedented. What’s more, moving beyond the traditional willful ignorance doctrine is especially important in order to combat the incentives that lawyers, accountants and other white-collar professionals have to remain in ignorance of fraud committed by their clients. While the existing willful ignorance doctrine adequately responds to conscious efforts to remain in ignorance of fraud in one’s midst, the criminal law does not have sufficient doctrinal tools to counteract the incentives to recklessly allow one’s ignorance to be preserved. This is the gap the Iterated Reckless Ignorance Principle defended here aims to fill. A substitution principle of this kind is particularly needed in light of recent legislative “mens rea reform” proposals, aiming to increase the default mens rea for federal crimes to the level of knowledge or willfulness.
Criminal Law | Jurisprudence | Law | Law and Society | Public Law and Legal Theory
Date of this Version
Alexander F. Sarch, "Beyond Willful Ignorance" (January 2016). University of Southern California Legal Studies Working Paper Series. Working Paper 195.