Deconstructing Constructive Liability

Abstract

Constructive liability refers to situations where, once D is proved to have perpetrated a criminal wrong (X), D becomes strictly liable for a circumstance attending, or consequence resulting from, that criminal wrong (Y). This form of liability is sometimes described, helpfully, as “X+Y liability”. This article analyses the main explanations and defences of constructive liability and argues that, despite express assertions to the contrary, all are consistent with a focus on whether Y was a reasonably foreseeable consequence of X. This is the first step to seeing that constructive liability is not a sui generis culpability doctrine. It is simply an example of constrained criminal liability for negligence and should be analysed as such.