The outcome, however, would be different if Humbert Humbert could prove that his misperception of Lolita’s age was a result of insanity. In that case, Humbert Humbert would have a valid defense. He would also have a defense if he could show that he had had sex with Lolita under duress. Say, Clare Quilty, engrossed in the production of his pornographic movie, threatened to beat up Humbert Humbert unless he and Lolita performed a sexual act in front of his camera.

Obviously, the defenses of mistake, insanity, and duress, albeit belonging to the same family of excuses, differ in many important respects. To see whether certain formative differences may account for the different treatment of these defenses, I examine various excuses on the scales of cognitive-volitional, external-internal, and permanent-temporary. In the end, I conclude that, from the moral perspective, there is: (i) no difference between a permanent and temporary impairment; (ii) a marginal difference in favor of external limitation compared to internal; (iii) a meaningful difference in favor of cognitive impairment compared to volitional. Effectively, this conclusion means that a person who commits a strict liability offense pursuant to a reasonable mistake deserves punishment even less than a person who commits the same crime under duress.

I further explore the discrepancy between the treatment of the defense of mistake and other excuses in cases of strict liability from the perspectives of efficiency and other public policies. I conclude that this discrepancy is unwarranted, unfair, and arguably, unconstitutional. Accordingly, I advocate for a revision of the current law and adoption of an across-the-board rule that would make the defense of a reasonable mistake available in any criminal prosecution.

Most scholars who have been concerned with this issue have assumed that there is one set of principles that will explain the proper relationship between distributive and retributive justice: The fact that an offender has been denied the basic entitlements of a just society, however defined, is taken to have implications for criminal liability across the board, regardless of the offense charged. The argument that I develop here suggests that a proper analysis of the relationship between distributive and retributive justice should proceed on a case-by-case basis. Such an analysis would take account of three distinct factors: First, it would look to the specific kind of offense with which the offender is charged. The fact that an offender is deeply and unjustly disadvantaged might be relevant to determining his blameworthiness for committing one kind of criminal offense (say, an offense against the person) but not another kind of offense (say, an offense against property or an offense against the administration of justice). Under this approach, we need to consider what it is that makes an offender blameworthy for committing a particular kind of offense in the first place, and then ask whether and how such blameworthiness is affected by his disadvantage. Second, we need to look at the precise form that the offender’s disadvantage takes. The fact that an offender has been denied any reasonable opportunity to obtain property, for example, might be relevant to determining his blameworthiness for committing a particular kind of offense in a way that his being denied the opportunity to participate in the political process or the right to certain kinds of basic police protection by the state might not. Third, we need to consider the economic and social circumstances of the crime victim, if any. For example, a criminal act directed by a disadvantaged offender at a similarly disadvantaged victim might be blameworthy in a way that the same crime directed at a privileged member of the political or economic elite would not.

Contrary to the authors’ contention, the proper formulation, meaning, and function of Golden Rule of Ethics are anything but “clear.” There are substantial controversies about both the Rule's substance (its proper formulation, its meaning, and whether it leads to the right result), and its procedure (e.g. about whether the rule is meant to be relied on by ordinary people on a case-by-case basis in their daily lives; applied only when there exists no more specific rule on point, or where specific rules conflict; or used, primarily by theorists, as a general justifying principle that explains or justifies more specific ethical rules). Relying on a single, general rule of conduct in the criminal law sphere would create similar interpretive and practical uncertainties and difficulties. Rather than doing away with centuries of common law and legislative developments, and essentially starting over, we should instead endeavor to refine the criminal codes we already have so that they are more carefully formulated and more respectful of the harm principle.

Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.

One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and voluntary. In addition, for complete justification, the perpetrator¡¯s reasons for a consensual injurious act should be subjectively benevolent and the act must produce an overall positive balance of harms and evils, including harm to the victim¡¯s welfare interests and dignity. If these requirements are not met, the defense should be only partial.

I attempt to refute Garvey¡¯s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey¡¯s offender¡¯s circumstances that makes him less blameworthy for the crime he committed. A court may choose to treat such an offender more leniently but it should not be mandated to do so.

Consider a hypothetical: a group of people are captured by criminals. The criminals are about to kill everyone but then they have a change of heart and offer their victims a deal: if Jack rapes Jill, the criminals will let everyone go. If not, no one’s life will be spared. Realizing that this is the only way to save several lives, including Jill’s own, Jack reluctantly agrees. Jill, on the other hand, vehemently protests that she would rather die than be violated. When Jack attempts to overpower her, Jill fights back and seriously injures Jack. At that moment, the police arrive and take everyone into custody. It appears that both Jack and Jill have valid defenses of justification – Jack can successfully claim necessity, and Jill can successfully claim self-defense. But is it fair to say that the two are equally right or that neither of them has committed any wrongdoing?

Focusing on the problem of incompatible justifications, I suggest that we should revise our understanding of justifications in general. Specifically, I argue that, in certain circumstances, justifiable conduct may be wrongful; that in a conflict between two incompatible justifications, one side may be more right than the other; and that justifications should be viewed not as a homogenous group in which each defense has equal importance but as a hierarchical structure in which the place afforded to a defense is determined by its rationale and effect on the rights of others.

The top priority belongs to justifications that do not violate rights of others and, in addition, compel others to behave in a cooperative way (the public duty defenses). The intermediate priority belongs to justifications that neither violate rights of others nor create in others a duty to cooperate (the “special relationship” and autonomy defenses). Finally, the lowest priority belongs to the defense of necessity, which, by design, may involve violation of rights of innocent, unoffending individuals.

This article begins by examining the various meanings – both literal and metaphorical – of looting. It then considers the factors that make “bad looting” so bad, and “good looting” less so. With respect to the latter, it considers the possibility that: (1) the disruption in normal social order might leave defendants in a “state of nature,” outside the jurisdictional reach of the court; (2) the defendant’s criminal acts were “necessary” in order to avoid some greater harm from occurring; and (3) the otherwise law-abiding offender, suffering from a combination of fright, fatigue, hunger, exposure, and disorientation, should be at least partially excused on the grounds that his acts were “out of character.”

The article concludes by considering some of the practical implications of the foregoing analysis, including the suggestion by various “conservative” commentators that the proper response to looters is to “shoot them on sight.” It argues that such a policy would be profoundly misguided, both because the criminal law should not tolerate the disproportionate use of deadly force in response to what is essentially a property crime, and because of the obvious difficulties of distinguishing between bad and good looting, particularly under the kinds of emergency conditions in which such acts are committed.