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University of Cincinnati Law Review

T. Markus Funk

Abstract

Determining an offender’s “culpability” is fundamental to justice systems worldwide. However, this crucial concept, built on a blending of moral responsibility with legal guilt, remains significantly diluted, including in the U.S. Model Penal Code, for instance, uses an offender’s moral culpability merely to “grade” offenses and determine sentences. This approach, which is mirrored in U.S. state and federal laws and academic discourse, not only affects individual cases but also has far-reaching societal implications.

Under this prevailing perpetrator-centric approach, “harm” narrowly refers to the concrete damage (or the “injury”), such as physical pain and damage or loss of property, the perpetrator caused. “Culpability,” on the other hand, is said to complete the picture by revealing what was going on in the perpetrator’s mind at the time of the offense so that the justice system can assess their moral blameworthiness and associated legal guilt.

This Article critically examines this prevailing conception of culpability, highlighting its shortcomings. The central point is that criminal conduct should be thought of as involving two very distinct forms of “injury” to the victim. One form of injury is commonly accepted, while the other (the focus of this Article) has been widely overlooked.

First, we have the uncontroversial tangible harm the perpetrator caused to the victim’s person or property. However, there is also a far less visible, though often equally significant, second form of injury. In addition to imposing actual or threatened harm, the perpetrator's conduct also imposes or threatens to impose an unequal standing on the victim (that is, a wrong). This Article not only explains this second distinct class of injury—wronging through the imposition of unequal standing, but also highlights the failure of the U.S. justice system to adequately recognize and address it, underscoring the need for reform.

By viewing culpability through a novel, victim-centric lens, this Article introduces a fresh perspective that explicitly recognizes and accurately labels the imposition of unequal standing as a distinct and profoundly relevant injury. This approach encourages a more holistic appreciation of a perpetrator’s conduct, one that considers not just the physical harm but also the psychological and social impact on the victim, specifically, and society, more generally.

This is not just a theoretical exercise but a necessary shift in our understanding of criminal justice. The proposed approach materially furthers criminal punishment’s expressive and descriptive objectives, provides a more accurate and comprehensive account of crime’s adverse effects on the victim, and puts the U.S. justice system in a position to better foster the equality-supporting civic bonds and shared norms vital to a flourishing society.

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