Culpa in causa. The Latin phrases I learned many moons ago as a law student in the Netherlands rarely enter my consciousness, but these three words kept flashing through my mind while reading about the Zimmerman trial. The term appears to have been coined in the 1930s by Willem Pompe, an influential criminal law professor in Utrecht at the time, who may well have thought that Latin sounds fancier than Dutch. Literally, culpa in causa means “fault in the cause.” The notion is that someone who voluntarily—and wrongfully—places herself in a situation in which it is reasonably foreseeable that she may commit a crime cannot successfully invoke defenses to criminal liability. Put differently, the intent or fault that is implicated in creating a risky situation extends to the subsequent crime. A relatively straightforward example of how the doctrine operates is in self-intoxication cases: Under Dutch law, a defendant who commits a crime under the influence of voluntarily consumed drugs can be convicted for crimes that require specific intent, even if the drugs rendered her incapable of understanding her actions.
I wish I could announce that Dutch law provides a solid answer to some of the problematic aspects of the Zimmerman case. Unfortunately, my (admittedly perfunctory) research suggests that the application of culpa in causa to self defense is murky, and it is unclear whether the doctrine would have barred George Zimmerman’s defense. In the self-defense context, Dutch courts appear to have applied the doctrine mostly in cases in which a defendant intentionally provoked an assault. In contrast, courts have declined to apply it when a defendant merely anticipated the possibility of an assault, and has taken precautions (such as carrying weapons). Assuming it was Trayvon Martin who started a physical fight—something we will never know—the Zimmerman case would fall somewhere in between those two situations. Zimmerman sought out the situation that (again, if we accept the prosecution’s version of the facts) made self defense necessary. Moreover, Zimmerman’s apparent motivations for following Trayvon Martin with a loaded gun are as wrong as they are flimsy: his impression that the teenager was “a real suspicious guy” who looked like “he’s up to no good.” Zimmerman also noted that “[t]hese assholes . . . always get away,” which could support an argument that Zimmerman acted as the initial aggressor.
The vast majority of the States in this country, including Florida, have enacted laws that criminalize violence motivated by animus against a protected characteristic, such as race and gender. It is ironic, then, that the combination of Trayvon Martin’s race and gender likely played a role both in his death and in the acquittal of the man who shot him. In the months leading up to the day he shot Trayvon Martin, Zimmerman made several calls to the police to report on the presence of black men who struck him as suspicious. It is hard to imagine that Trayvon Martin’s race and gender did not influence Zimmerman’s decisions and actions. The fact that Trayvon Martin was black and male may also have lent credibility to the defense’s narrative in the jurors’ eyes. As my former law school classmate Ekow Yankah states in an eloquent New York Times op-ed: “What is reasonable to do, especially in the dark of night, is defined by preconceived social roles that paint young black men as potential criminals and predators.” One is left to wonder whether a more diverse jury would have reached a different verdict.
What many are struggling with, I think, is that conduct that seems to amount to culpa in causa in a moral sense does not translate into a strong enough legal case. On this blog, Daniel Blinka reminds us that a jury’s verdict should be nothing more and nothing less than a decision on the particular case as it was presented in the courtroom. While the jury’s decision in the Zimmerman case is defensible, though, the result—an unarmed teenager dead, the armed killer who actively pursued him a free man—is difficult to stomach. Overthrowing procedural protections for criminal defendants may not be the right answer to the conundrums presented by the Zimmerman acquittal, but the case is an urgent reminder to keep looking for ways to mitigate disparate treatment of different groups in the legal system. It is also a mirror that shows how devastating the consequences can be of prejudices that, to varying degrees, reside in each of us.