Chapter 8: The Culture of Law Enforcement

8.4 Moral Culpability versus Legal Culpability

Moral culpability is loosely tied to mens rea, meaning that there is an explanation for the intent of the actor. However, with moral culpability, the explanation put forth by the actor may excuse the immoral action from being caused due to intentional immorality. An example would be a mother who has killed her infant while suffering postnatal depression. The mother would not be charged with murder, as would a stranger who killed the same infant, or a mother who is not suffering postnatal depression who killed her infant. However, because the mother suffers from a medical diagnosis of postnatal depression, she would be charged with the lesser offence of infanticide. A mother with postpartum depression is suffering an illness, and her decision to kill her infant is not a moral one, rather it is a decision she has made due to her illness. A further example would be a person who kills someone because he threatened serious bodily harm to another person. Although the action is homicide, there may be no moral culpability because the intent was first to save another person even though the mens rea may have existed to kill the victim in order to stop him. Because the moral culpability is less than if someone killed for his or her own gain, a manslaughter charge would be used instead of a murder charge. Here we weigh moral culpability against legal culpability.

A police officer on the street may, in some instances, use his or her discretion when determining moral culpability or legal culpability for minor investigations. Where a suspect of a crime may be charged with an offence, the officer may decide not to charge because of diminished moral culpability. An example is a minor theft in which a homeless suspect steals a blanket in order to survive a frigid night on the streets. The officer may choose to forgo charges and locate a shelter for the homeless suspect.

The distinction between moral culpability and legal culpability is at times blurred; law enforcement officers must be aware that what may be legally permissible may not be morally permissible. While it is true that in solving ethical dilemmas, officers should consider the laws or regulations that are applicable, so too must they consider the moral culpability in all their actions regardless of the lack of legal restrictions. An example in a law enforcement context may be an officer who ignores a homeless person waving her hand for assistance. While there may be no policy or legal infraction, the officer’s conduct may be regarded as morally culpable if the homeless person is later harmed when the officer’s assistance may have protected her from harm. The officer who ignored the person may be regarded as morally culpable for the injury by not assisting the person. Another example would be an officer who fails to investigate a crime due to a heavy caseload. Should the omission of the investigation lead to a preventable assault, the argument may be made that the investigator’s decision not to investigate made him or her morally culpable, depending on the reasoning behind the officer’s decision. If the officer decided that the case was not as serious as others, then it may be determined that the officer was not morally culpable. However, if the officer’s decision was based upon the ethnicity of the victim, then the officer would be morally culpable for the assault that occurred as a result of the officer’s decision.

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8.4 Moral Culpability versus Legal Culpability by Steve McCartney and Rick Parent is licensed under a Creative Commons Attribution 4.0 International License, except where otherwise noted.

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