CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, March 21, 2014

Rosenberg on Drag Racing, Assumption of Risk, and Homicide

Roni M. Rosenberg (Carmel Academic Center - Law School) has posted Drag Racing, Assumption of Risk, and Homicide (51(2) Criminal Law Bulletin) on SSRN. Here is the abstract:

U.S. courts are divided with regard to the question of whether it is appropriate to convict a participant in a drag race of homicide for the death of another participant. The context is not one in which decedent is killed as a result of colliding with the defendant; rather the death is cause by a collision with a third party or a guard rail. The controversy revolves around on central question: whether there is a causal connection between defendant's participation in the race and the death of decedent. Courts that convict of manslaughter hold that such a causal connection exists, while courts that acquit believe that there is the need for a more direct causal connection in order to convict for manslaughter.

This essay emphasizes the fact that such instances raise questions that reaches to the roots of criminal jurisprudence, questions that were not addressed in these decisions: Who owns the protected interest at the core of manslaughter? What is the content of that interest? What is the significance of the autonomous agreement of the injured party to assume a risk that may lead to death?

The essay critiques the reasoning of the courts that acquit and suggests an alternate conceptual approach, which has not yet appeared in legal literature, regarding why a participant in a drag race should be acquitted of manslaughter for the death of another participant. The essay goes on to suggest that such defendant should be acquitted not due to lack of a sufficient causal connection between his conduct and the death but because the protected interests at the core of homicide have not been harmed. Thus, even if there is the requisite causal connection, it would still not be appropriate to convict for manslaughter.

The essay goes on to explain that the crime of homicide is intended to protect two distinct values, not just one: The first is sanctity of life, the protection of human life because of the inherent value we attribute to such life. The second value is a basic sense of security that enables the general population to live with personal autonomy, free of fear or the constant need to be alert for unprovoked attacks. While the first value belongs to the individual, and as such that individual can consent to an infringement on this value, the second belongs to society at large. Since, there are cases of death, including the case of the drag race participants, that do not harm society's sense of security, in such cases, the autonomous consent of the injured party should indeed prevent conviction of the one who injurer for manslaughter.

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