The Ontological Problem of ‘Risk’ and ‘Endangerment’ in Criminal Law

This chapter focuses on offences that punish offenders who engage in risky behaviour that never in fact causes any harm. It argues that the problem of punishing actors for risks that in some sense do not exist must be solved not by thinking of risk as a form of probability — that is, the factual likelihood of harm — but rather in terms of counterfactual events that a judge or jury fear could have occurred and, had they done so, would have produced the same kind of harm that the offence at issue is designed to prevent. The chapter proceeds by firstly, locating offences within the larger taxonomy of crimes of risk creation; secondly, summarizing conventional understandings of risk as probability; thirdly, explaining why probability fails to account for most crimes of explicit endangerment; fourthly, proposing an alternative, non-probabilistic understanding derived from the defence of impossibility; and, lastly, suggesting that the alternative understanding may also resolve a nagging problem regarding what Duff calls crimes of ‘implicit endangerment’, that is, offences that, rather than making explicit reference to ‘risks’ or ‘dangers’, consist of conduct that legislatures regard as sufficiently risky to justify categorical prohibition (for example, failing to come to a full stop at a stop sign).