CrimProf Blog

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

Friday, December 6, 2013

Brenner on Technological Enhancement and Criminal Responsibility

Susan W. Brenner (University of Dayton - School of Law) has posted Humans and Humans+: Technological Enhancement and Criminal Responsibility (Boston University journal of Science and Technology Law, Vol. 19, 2013, Forthcoming) on SSRN. Here is the abstract:

This article examines the implications our use of technological enhancements to improve our physical and/or cognitive abilities will necessarily have on the processes of imposing criminal responsibility on those who victimize others. It explains that while our use of such enhancements is still in its infancy, it is more than likely that their use will dramatically accelerate over the next century or less. 

The articles examines how law has historically approached the concept of a “legal person,” with reference to “normal” humans, “abnormal” humans, animals, objects, supernatural beings and juristic persons. It also reviews how two other authors have analyzed the general legal issues our use of enhancements and other technological advancements are likely to raise. 

The primary focus of the article, however, is on analyzing how criminal law will need to adapt once our world is populated by two classes of humans: Standard humans (basic Homo sapiens sapiens) and Enhanced humans (Homo sapiens sapiens whose native abilities have been augmented beyond the range of possibilities for their Standard brethren). I assume this very basic divergence between humans because it suffices for my analyses, and because I assume that creating a new species or subspecies of Homo sapiens sapiens is likely to be difficult and will therefore not eventuate in the near future.

I use various scenarios, e.g., Standard perpetrator-Enhanced victim, Enhanced-perpetrator and Standard victim, to analyze how criminal law can, and should, adapt to a world in which all humans are not equal. I use statutory rape statutes as an example of law that is designed to protect a distinct and vulnerable class of humans, and speculate as to whether this approach could be extrapolated to Standard humans. I also explore the viability of extrapolating other, similar principles, such as vulnerable victims, into this context. And I briefly analyze the possibility that future law might address this situation by implementing a caste system to “protect” Standard humans from their superior counterparts. My goal is not to predict how future criminal law should deal with human enhancement but to note the likelihood that it will have to do so.

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