§702-217  Causation in offenses of absolute
liability.  When causing a particular result is an element of an offense
for which absolute liability is imposed by law, the element is not established
unless the actual result is a probable consequence of the defendant's conduct.
[L 1972, c 9, pt of §1]



 



COMMENTARY ON §702-217



 



  The elimination of mens rea or culpability requirements from
a penal offense should not make the accused liable for improbable consequences
of the accused's conduct.  The specter of such liability would be too
precarious and capricious to induce an actor to make rational adjustments in
the actor's behavior in order to avoid the sanction.  The futility of an
attempt to impose penal liability for the improbable consequences of conduct has
been succinctly expressed by Hart and Honore:



... [S]urely,
the elimination of mens rea as... [a requisite for penal] liability does not
mean that the accused is to be liable for harm, even if it only occurred
through the conjunction of his act with the deliberate act of some independent
person or with some quite extraordinary event.  The plain man's protest would
be that in such cases the accused did not do it', even though the harm would
not have occurred without what he did.[1]



  This section is not repetitive of §702-216 (dealing with
negligent causation).  There will undoubtedly be situations where a person will
fail to perceive a risk of a probable consequence although the person's failure
of perception did not involve a "gross deviation from the standard of care
that a law-abiding person would observe in the same situation."



 



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§702-217 Commentary:



 



1.  Hart & Honore, Causation in the Law 361 (1959).