Saturday, August 3, 2013
Corporate behavior is often regulated through the criminal law by means of reverse onus offenses. Such offenses are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offenses are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to being sidelined for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offenses are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offenses in the case of corporate defendants.I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offenses properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defense; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offenses justly allocate the burden of proof in the case of corporate defendants.