1 The phrase “collateral offenses” is used in this article to denote offenses which differ from the offense envisaged by the primary and secondary participants at the moment they respectively, were on the verge of engaging in, or effectuated their contribution to, the perpetration of the projected crime. Specifically, an offense will be deemed “a collateral offense” in two cases: when the principal changes course at the outset of the perpetration of the projected crime and proceeds to commit a different offense; and when the principal perpetrates an additional offense incidentally to the commission of the projected crime.

2 For a summary of English law on this point, see Smith, & Hogan, , Criminal Law, 9th ed. (London, Butterworths, 1999) 141–48Google Scholar; Ashworth, Andrew, Principles of Criminal Law, 3d ed. (Oxford, Oxford Univ. Press, 1999) 443–49Google Scholar. Most American jurisdictions require actual foresight for accomplice liability to obtain with regard to the commission of a collateral offense. See Comment to § 2.06 in American Law Institute, Model Penal Code (revised ed. with commentaries) 310 (1985). In New Zealand, see §§ 66, 70 of the Crimes Act 1961. See also Robertson, J.B., ed., Adams on Criminal Law (Wellington, Brooker, 1996) 149–80Google Scholar. In South Africa see Matzukis, N.A., The Nature and Scope of Common Purpose, S.A.C.J. 226 (1988)Google Scholar.

3 See § 34A of the Penal Law, 5737-1977 (hereinafter “section 34A”). The text of the provision appears infra at the outset of sub-section I.C. An English translation of the Israeli Penal Law may be found at Penal Law, 1977, L.S.I. Special Volume (hereinafter “Israeli Penal Law”). A new Preliminary and General Part was enacted on August 23, 1994. See Criminal Code (Amendment No. 39) (Preliminary and General Parts) 1994, 1481 S.H. 348 (hereinafter “the new General Part”). See also Explanatory Notes to Bill 2098 (Penal Law (Preliminary and General Part), January 6, 1992, in Reshumot 114, 131. An unauthorized English translation of the new General Part may be found at 30 Is. L.R. 5–27 (1996)CrossRefGoogle Scholar. Many provisions of the new General Part are discussed in Gur-Arye, Miriam, “Penal Law (Preliminary and General Part) Bill, 1992” (1994) 24 Mishpatim 9Google Scholar (in Hebrew) (hereinafter, “Penal Law”). Unless indicated otherwise, all statutory provisions discussed in the article are from the new General Part.

4 For example, § 21(2) of the Canadian Criminal Code provides as follows:

Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offense, each of them who knew or ought to have known that the commission of the offense would be a probable consequence of carrying out the common purpose is a party to that offense.

In Australia, see § 8 of the Criminal Code of Tasmania; § 8 of the Criminal Code of Queensland; § 8 of the Criminal Code of Western Australia. In the United States, see § 703.2, Penal Code of Iowa; § 21-320, Penal Code of Kansas; § 57.3(A) Penal Code of Maine; § 7.02(b), Penal Code of Texas; § 609.05, Penal Code of Minnesota; § 905.05, Penal Code of Wisconsin. It should be recalled as well that virtually all penal codes at the state level hold accomplices strictly liable under the felony-murder rule for killings committed in the course of a joint enterprise to commit a dangerous crime (e.g., robbery, kidnapping, rape, burglary, arson). See e.g., Lafave, Wayne R. & Scott, Austin W., Substantive Criminal Law, vol. 2 (St. Paul, West, 1986) 211–13Google Scholar.

In some jurisdictions, the natural and probable and consequence rule in complicity has been declared constitutionally invalid, as a violation of defendants' rights. In Canada, the rule failed to survive constitutional scrutiny by the Supreme Court in the context of a murder charge. See R. v. Logan, 73 D.L.R.(4th) 40 (1990). In Enmund v. Florida, 458 U.S. 782 (1982), the United States Supreme Court overruled on constitutional grounds a death penalty sentence for an accessory convicted of murder, because he did not actually foresee the risk of the killing by his confederates. In Tisonv. Arizona, 481 U.S. 137 (1986), however, the Court allowed the death penalty for an accomplice who acted without foresight but evinced reckless indifference toward human life through his involvement in the joint commission of the felony which resulted in the victim being shot to death by the confederate.

5 A brief note regarding the terminology used in this article with regard to participants in crime: The terms “primary participant” and “principal” denote the participant who directly commits the substantive offense. His liability is established independently of the liability of the other participants. A “joint perpetrator,” “co-principal,” or “confederate” is a participant who jointly commits the substantive offense with another; he is also considered a principal, as his liability is direct as well. The terms “secondary participant” and “secondary” denote a participant who contributes to the commission of the substantive offense by instigating, encouraging or assisting the principal. His liability is not direct; rather, it derives from the criminal act of the principal. “Accomplice,” and “participant” denote any participant who contributes to the commission of the substantive offense, whether as a co-principal or a secondary.

6 See Feller, S.Z., Elements of Criminal Law, vol. 2 (Jerusalem, Sacher Institute, 1988) at 226 (in Hebrew)Google Scholar.

7 By virtue of § 29(b), principal liability obtains where the offender “contributes to the commission of the act [of the offense] by another person, who serves as a tool in [his] hands.” The requirement that the agent be used “as a tool” suggests that the framers of the new General Part opted for the concept of “hegemony” rather than that of causation as the touchstone of liability under the innocent agency doctrine. See Gur-Arye, “Penal Law”, supra n. 3, 45-46. See also 2 Feller, supra n. 6, 212; Kremnitzer, Mordechai, “The Perpetrator” (1990) 1 Plilim 65, 66-72, 78–81 (in Hebrew)Google Scholar.

8 See Gur-Arye, Miriam, “Commission of a Offense – Various Modes” (1990) 1 Plilim 29, 43–44 (in Hebrew)Google Scholar. See also Fletcher, George, Rethinking Criminal Law (Boston, Little, Brown & Co., 1978) 672Google Scholar; Henneau, Christiane & Verhaegen, Jacques, Droit Pénal Général, 2d ed. (Bruxelles, Bruylant, 1995) 225–26Google Scholar.

9 But see C.A. 4317/97 Poliakov v. State of Israel (1999) 53(i) P.D. 289 (per Justice Mazza, that the aider's act need only bear the potential of contributing to the commission of the offense; an actual contribution to the commission of the offense is not required).

10 However, when the assistance furnished is of no use to the principal, such as when a defective gun is supplied, liability for complicity should not follow — though liability could attach for encouragement if the principal was influenced by the secondary's offer of assistance in carrying out the offense. See Gur-Arye, “Penal Law”, supra n. 3, at 47. Indeed, it has correctly been observed that “encouragement of the principal to commit the offense … usually accompanies, or is implicit in, an act of aiding.” Ashworth, Andrew, Principles of Criminal Law, 2d ed. (Oxford, Oxford Univ. Press, 1995) 414Google Scholar.

11 See e.g., Williams, Glanville, Textbook of the Criminal Law, 2d ed. (London, Stevens, 1983) 337Google Scholar; Bouzat, Pierre & Pinatel, Jean, Traité de Droit Pénal et de Criminologie, vol. 1, 2d ed. (Paris, Dalloz, 1970) 761–63Google Scholar.

12 See e.g., C.A.6202/95 Ploni v. State of Israel (1995) 49(v) P.D. 685.

13 See 2 Feller, supra n. 6, 249-52. Ibid., 258-59.

14 Ibid., 254. See also Hart, & Honoré, , Causation in the Law, 2d ed. (Oxford, Oxford Univ. Press, 1985) 388CrossRefGoogle Scholar; Smith, K.J.M., “Complicity and Causation” [1986] Crim. L.R. 663, 670Google Scholar.

15 See Gur-Arye, “Penal Law”, supra n. 3, at 47.

16 See Fletcher, supra n. 8, at 671.

17 The distinction is crucial, as § 32 limits the sentence for aiding to half the prescribed maximum punishment of the substantive offense.

18 Hence the conclusion that the previous conception of primary perpetration used in the case law, which was premised on the materialization of the constituent elements of the substantive offense in the person of the participant, was deliberately abandoned by the framers of the new General Part. See Gur-Arye, “Penal Law”, supra n. 3, at 42-43; Fletcher, George, “Complicity” (1996) 30 Is. L. Rev. 140–41CrossRefGoogle Scholar.

19 See Gur-Arye, “Commission of an Offense”, supra n. 8, at 32-42; 2 Feller, supra n. 6, at 204.

20 See Kremnitzer, “The Perpetrator”, supra n. 7, at 73-75. This is called the “hegemony” theory of joint perpetration. See also Fletcher, supra n. 8, at 655-56; Schreiber, Hans-Ludwig, “Problems of Justification and Excuse in the Setting of Accessorial Conduct” (1986) Brigham Young U.L. Rev. 611, 627Google Scholar.

21 See C.A. 1632/95 Meshulam v. State of Israel (1995) 49(v) P.D. 534, add'l hearing 1294; C.A. 1365/96 Meshulam v. State of Israel (1998) 52(v) P.D. 1; C.A. 4389, 497/93 Mordechai v. State of Israel (1996) 50(iii) P.D. 239; C.A. 2796, 2813, 2814/96 Plonim v. State of Israel (1997) 51(iii) P.D. 388; C.A. 8710, 8620, 8873/96 Markadov. State of Israel (1997) 51(v) P.D. 481, 542-51. For a discussion of the case law on this point, see Kannai, Ruth, “Criminal Law: Developments and Directions” (2000) 23 Iyunei Mishpat 717, 732–46 (in Hebrew)Google Scholar.

22 In a number of cases, the Supreme Court has gone so far as to treat the kingpin of a gang who organized and supervised the implementation of the unlawful operation as a joint perpetrator, even though he did not actually take part in the commission of the offense. C.A. 2796, 2813, 2814/96 Plonim v. State of Israel, supra n. 22; C.A. 4720, 5310, 5454/98 State of Israel v. Nahman Cohen (unpublished); C.A. 6687/93, 7162/94 Goumea Ben Ismael Mousa v. State of Israel (1998) 52(v) P.D. 193.

23 Section 28:

When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose any offense or offenses is or are committed of such a nature that the commission is probable consequence of the prosecution of such purpose, each of such persons being present at the commission of any of such offenses is deemed to have committed the offense or offenses committed.

Section 29:

When a person counsels another to commit an offense, and an offense is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offense actually committed is the same as that counseled or a different one, or whether the offense is committed in the way counseled or in a different way provided in either case that the facts constituting the offense actually committed are a probable consequence of carrying out the counsel.

The guiding interpretation of § 28 P.L. was set down by the Supreme Court in the landmark decision C.A. 377/67 Yossef Dahan & David Ben Haroush v. State of Israel (1969) 23(i) P.D. 197. That decision concerned §§ 24 and 25 of the Criminal Code Ordinance, 1936, which was in force until a new version of the Criminal Code Ordinance was completed in 1977, the Penal Law, 5737-1977. The provisions governing accomplice liability for collateral offenses remained substantially the same, but were relocated to §§ 28 and 29 of the Penal Law. The facts in the Dahan & Ben Haroush case were as follows: The defendants undertook to commit a bank robbery. In the midst of the hold-up, Ben Haroush's gun accidentally went off. Under pressure, the defendants resolved to leave the premises. While they were still withdrawing but after Ben Haroush had already exited, Dahan shot and killed the bank manager. The District Court convicted Dahan of murder under § 214(d) of the Criminal Code Ordinance (§ 300(a)(4) of the Penal Law), but acquitted Ben Haroush of the complicity charge under § 28 P.L. The Supreme Court, however, reversed the judgment of the District Court and convicted Ben Haroush, too, for the killing of the bank manager.

24 Significantly, §28 P.L. did not provide for punishment of the non-present aider for offenses committed incidentally to the commission of the projected crime.

25 See supra n. 4.

26 See C.A. 3194/95, 174/94, 7085/93 Najar v. State of Israel (1997) 51(iv) P.D. 221, 233-34.

27 See Gur-Arye, “Penal Law”, supra n. 3, at 42-43.

28 See Prof. Kadish's remarks concerning the traditional natural and probable consequence rule in complicity:

Courts sometimes … hold the secondary party liable, on the ground that the criminal action of the primary party was a probable consequence of the action of the secondary party …. It is impossible to make this proposition consistent with the usual requirement of intentionality …. For it would seem to allow holding the accomplice liable for a crime of knowledge or purpose committed by the principal as long as he should have anticipated the principal's actions.

Kadish, Sanford, “Complicity, Cause and Blame: A Study in the Interpretation of Doctrine” (1985) 73 Calif. L. Rev. 323, 351–52CrossRefGoogle Scholar. See also 2 Lafave & Scott, supra n. 4, 158.

29 It should be emphasized that this sub-section concerns only the explanations offered for imposing liability based on an objective rather than subjective foresight standard. The distinct issue of the justificatory basis for the aggravation in liability produced by the mens rea-imposing mechanism in §34A(a)(1) is addressed in the section that follows.

30 See Kremnitzer, Mordechai, hereinafter “Justified Deviations from the Requirement of Mens Rea” (1996) 13 Bar-Ilan Law Studies 109, 123 (in Hebrew)Google Scholar.

31 See, e.g., Hall, Jerome, “Negligent Behaviour Should be Excluded from Penal Liability” (1963) 63 Colum. L. Rev. 632, 635–42CrossRefGoogle Scholar.

32 See, e.g., Note, “Negligence and Criminal Responsibility” (1972) 81 Yale L. J. 949, 965–74Google Scholar.

33 See Brudner, Alan, “Imprisonment and Strict Liability” (1990) 40 U. Tex. L.J. 738, 758–60Google Scholar; Carlton, Ted, “A Principled Approach to the Constitutional Requirement of Fault” (1992) 24 Ottawa L. Rev. 613, 640Google Scholar; Chapman, Bruce, “Criminal Law Liability and Fundamental Justice: Toward a Theory of Substantive Judicial Review” (1986) 44 U. Toronto Faculty L. Rev. 153, at 164Google Scholar. See also 1 Feller, S.Z., Elements of Criminal Law (Jerusalem, Sacher Institute, 1984) at 40, 722 (in Hebrew)Google Scholar. For a conception of culpability as a crucial component of the offender's defiance of the legal order, see Hampton, Jean, “Mens Rea” in Paul, Ellen F., Miller, Fred D., JrPaul, Jeffrey, eds., Crime, Culpability and Remedy (Cambridge, Mass., Basil Blackwell, 1990) 24–28Google Scholar. For recent alternative accounts of the public nature of the criminal law centered on society's identification with the victim of the crime, see Marshall, S.E. & Duff, R.A., “Criminalization and Shared Wrongs” (1998) 11 Canadian J. L. & Juris. 7CrossRefGoogle Scholar; Karp, Yehudit, “Criminal Law – Janus of Human Rior: Constitutionalization and Basic Law: Human Dignity & Liberty (1995) 41 Hapraklit 64 (in Hebrew)Google Scholar; Fletcher, George P., With Justice for Some: Defending Victims in Criminal Trials (Reading, Mass., Addison-Wesley, 1994) 201–05Google Scholar; Ashworth, Andrew, “Is the Criminal Law a Lost Cause?” (2000) 116 L.Q. Rev. 225, 242–43Google Scholar.

34 See Ashworth, Andrew, “Punishment and Compensation: Victims, Offenders and State” (1986) 6 Ox. J. L. S. 86, 98Google Scholar (“[C]rimes may create a general fear and insecurity in the community, probably because those who commit them are known to be deliberately setting themselves up against the interests of others.”); Fletcher, George P., “A Transaction Theory of Crime?” (1985) 85 Col. L. Rev. 921, 925CrossRefGoogle Scholar (“I am not sure why this is, but reports of deaths on the highways do not unnerve the public in the way that reports of subway robberies put everyone in fear … the fear of crime touches a sensibility far deeper than the fear of accidental injury.”). Prof. Feller also points to fear as a defining feature of the public character of criminal harm. 1 Feller, supra n. 33, 723.

35 See e.g., Kremnitzer, M., “Constitutional Principles and Criminal Law” (1993) 27 Israel L. Rev. 84, 90Google Scholar.

36 See Kremnitzer, Mordechai, “On Criminal Negligence: A Mental Element, Factual Element or Both?” (1994) 24 Mishpatim 71, 72–74 (in Hebrew)Google Scholar.

37 See Murphy, Jeffrie G., “Why Have the Criminal Law at All?” in Retribution Reconsidered: More Essays in the Philosophy of Law (Dordrecht-Boston, Kluwer Academic Publishers, 1992) 1CrossRefGoogle Scholar; Ashworth, “Is The Criminal Law a Lost Cause?” supra n. 33, 244, 253-54; Kremnitzer, supra n. 35, 90.

38 Society cannot persist with the knowledge that harmful actions are allowed only subject to the requirement of compensation. Indeed, life would be unbearable in a society where, for instance, premeditated assault would be permitted provided compensation is paid to the victim. Hence, the importance of subjective fault in the criminal law. This argument applies with even more force when the offender is impecunious and thus unable to pay a damage award. See Nozick, Robert, Anarchy, Utopia and the Modern State (New York, Basic Books, 1974) 67Google Scholar. See also Epstein, Richard A., “The Tort/Crime Distinction: A Generation Later” (1996) 76 B.U.L. Rev. 1, 14–15Google Scholar; Murphy, supra n. 37, at 5, 10-13; Calabresi, Guido & Douglas Melamed, A., “Property Rules, Liability Rules and Inalienability: One View of the Cathedral” (1972) 85 Harv. L. R. 1089, 1124–27CrossRefGoogle Scholar (arguing that theft must be criminalized “as a means of deterring future attempts to convert property rules into liability rules” because “we assume [the thief] knew what he was going to do and to whom he would do it”).

39 See Kremnitzer, “Justified Deviations”, supra n. 30, 123.

40 Ibid., at 121-22.

41 See Netanyahu, Daphne, “Criminal Responsibility Due to Prior Conduct” (1992) 3 Plilim 233 (in Hebrew)Google Scholar; 2 Feller, supra n. 6, 323; Kremnitzer, ibid., at 123; Gur-Arye, “Penal Law”, supra n. 3, 49. See also Smith, K.J.M., A Modern Treatise on the Law of Criminal Complicity (Oxford, Clarendon Press, 1991) 233Google Scholar; Kadish, supra n. 28, 353; Robinson, Paul, “Imputed Criminal Liability” (1984) 93 Yale L. J. 609, 644–45CrossRefGoogle Scholar.

42 Cf. Kremnitzer, Mordechai, “Issues in the Law of Criminal Attempt From a Comparative Law Perspective” (1987) 12 Iyunnei Mishpat 395, 402–03 (in Hebrew)Google Scholar.

43 Prof. Feller describes the joint perpetration of an offense as a form of “homogeneous participation” in the crime, as if the two parties act as “one body”. 2 Feller, supra n. 6, at 195.

44 This rationale does not extend to versions of the natural probable consequence rule in complicity conditioning the imposition of liability upon the additional offense being “in prosecution of the common purpose.” The Supreme Court, it will be recalled, held in Dahan & Ben Haroush that §28 P.L. requires that the collateral crime be committed by the principal in order to attain the common unlawful goal. See Dahan & Ben Haroush, supra n. 23, 220-22. The last section of this article includes further discussion of this point.

45 On the presumption of indifference, see infra nn. 60-67 and accompanying text.

46 Robinson, “Imputed Criminal Liability”, supra n. 41, 644-45.

47 See supra nn. 40-44 and accompanying text.

48 See 2 Feller, supra n. 6, 325-27; Netanyahu, supra n. 41,233; Gur-Arye, “Penal Law”, supra n. 3, 49; Kremnitzer, “Justified Deviations”, supra n. 30, 123.

49 See Kremnitzer, “Justified Deviations”, supra n. 30, at 123. Cf. Jareborg, Nils, “The Two Faces of Culpa” (1979) 50 Rev. Int. de Droit Pénal 307, 312–20Google Scholar; Jareborg, Nils, “Criminal Liability for Omissions” (1984) 55 Rev. Int. de Droit Pénal 937, 953–54Google Scholar.

50 See Kremnitzer, “The Perpetrator”, supra n. 7, at 74; Gur-Arye, “Modes of Commission of an Offense”, supra n. 8, 47. Prof. Feller stresses that, for secondary liability to obtain, the contribution of the instigator or the aider needs only to be effectuated under a concrete set of circumstances in which the constituent elements of the substantive offense are in view, such that the manner in which the projected crime is to be committed may be left to the discretion of the principal. See 2 Feller supra n. 6, 230, 246. This is not to say, however, that aiders and instigators may not influence the principal's decision as to how the offense will be carried out. Whether the new General Part scheme governing accomplice liability adequately deals with such cases where the secondary's contribution increases the risk of further criminal conduct is discussed at length in the third section of this article.

51 See Kremnitzer, “Justified Deviations”, supra n. 30, 123.

52 See Kremnitzer, ibid., 123; see also K.J.M. Smith, supra n. 41, 233.

53 See Kremnitzer, ibid., 123; see also Robinson, “Imputed Criminal Liability”, supran. 41, at 668; K.J.M. Smith, supra n. 41, at 233. Cf. Enker, Arnold, “Murder Caused in the Commission of Another Offense” (1980) 1 Bar Ilan Law Studies 1 (In Hebrew)Google Scholar; Roth, Nelson E. & Sundby, Scott E., “The Felony-Murder Rule: A Doctrine at Constitutional Crossroads” (1985) 70 Cornell L. Rev. 446, 450Google Scholar.

54 Correspondingly, the fact that the mens rea-imposing mechanism of § 34A(a)(1) does not indiscriminately apply to all cases where the causation of material harm (e.g., death, bodily injury, property damage) or the performance of a proscribed form of conduct ensues by direct and almost inevitable sequence from the joint enterprise, but rather only to harms occasioned, or forbidden actions performed, by the confederate, demonstrates that the new General Part scheme governing co-principal liability for additional offenses also rests on the need to induce joint perpetrators to take precautionary measures. Significantly, liability for a result-crime of indifference is not assigned to co-principals, for instance, where, unbeknownst to them, an objectively foreseeable forbidden harm is caused by a victim, bystander or police officer in order to defend themselves or others against members of the enterprise. One may venture the suggestion that this is because the response of such third parties does not reside within the co-principal's realm of influence, at least not to the same extent as does the conduct of his confederates in the course of the enterprise. Were the scheme set forth at § 34A(a)(1) solely premised on a causal theory of risk creation, however, then its mens rea-imposing mechanism would also allow for imputing a mental state of knowledge or reckless indifference in all cases where performing a proscribed form of conduct or causing a material harm constitutes a reasonably foreseeable consequence of the enterprise.

55 In cases where the additional offense is a result-crime of intent, the confederate is only held liable under § 34A(a)(1) for the crime of reckless indifference.

56 See Kremnitzer, “Justified Deviations”, supra n. 30, 123-24; 2 Feller, supra n. 6, 326.

57 See Kremnitzer, ibid.

58 See Kremnitzer, “On Criminal Negligence”, supra n. 36, 72. This assumption, however, is not always borne out in reality. For more on this point, see infra note 66 and accompanying text.

59 One exception may be when a person foresees that he may cause a forbidden result but acts in the full confidence that it will not occur, such as when a driver prepares to cut off another car, with momentary foresight of the risk of an accident occurring, though he is convinced that “nothing will happen.” On the Continent, such cases are graded on the same level of seriousness as cases of negligence (rather than cases of recklessness). Though the actor foresees the risk of harm, is is argued that, unlike the typical reckless offender, he does not choose to endanger the legal interest, as he fully believes that such a danger does not exist. See Kremnitzer, Mordechai, “On Certain Characteristics of German Law” in Gavison, Ruth & Kremnitzer, Mordechai, eds., Essays in Honour of Shimon Agranat 325 (1984), 341–47 (in Hebrew)Google Scholar; Barbaro, Nuñez, “Juridical Structure of Criminal Negligence in Modern Doctrine” (1976) 47 Rev. Int. de Droit Pénal 9, 16–18Google Scholar.

60 See, however, Kremnitzer, “Justified Deviations”, supra n. 30, 124, passim (arguing that, in reality, joint perpetrators momentarily envisage at the outset of the implementation of the unlawful plan that things may somehow take an uncontrollable turn and that further criminal conduct may ensue, but they swiftly brush this eventually aside, so as not to trouble their conscience).

61 It should be emphasized, however, that the presumption of indifference does not claim to justify the imposition of liability on the joint perpetrator where the confederate commits a result-crime predicated on a mental state of intent. Thus, when the additional offense is a result-crime of intent the mens rea-imposing mechanism of §§ 34A(a)(1) confines the liability of the co-principal to a crime of reckless indifference. Even if one accepts the line of reasoning underlying the presumption of indifference, the imposition of liability upon the co-principal for a crime of intent remains excessive, as he is only responsible for recklessly creating the risk of further criminal conduct – not for purposefully cooperating with the confederate in committing the collateral offense. See Kadish, , “Reckless Complicity” (1997) 87 J. Crim. L. & Criminol. 369, 375–78CrossRefGoogle Scholar; Clarkson, C.M.V., “Complicity, Powell and Manslaughter” [1998] Crim. L. Rev. 556, 557–558Google Scholar; Wise, Esther, The Law of Criminal Conspiracy (Tel Aviv, Chosen Mishpat, 1993) 140–141 (In Hebrew)Google Scholar.

62 See Kremnitzer, “Justified Deviations”, supra n. 30, 124.

63 On this note, it should be mentioned that the mens rea-imposing mechanism of § 34A(a)(1) may also be justified on the practical ground of easing the prosecutor's burden of proof, as “private communications and tacit understandings possible in an ongoing relationship [often] hinder the proof of complicity and its required culpable state of mind.” Robinson, “Imputed Criminal Liability”, supra n. 41, at 657. According to this viewpoint, imputation of liability should be allowed where the additional offense is a natural and probable consequence of the joint enterprise, because in the vast majority of cases the primary participant adverts to the risk of further criminal conduct by his confederate – though such advertence may be difficult to prove. No doubt the gap between the subjective and objective positions regarding the propriety of liability for offenses beyond the planned unlawful purpose is much wider in theory than in practice. But as comforting as this fact may be, it does not resolve the real issue, for because it is irrebuttable, the mens rea-imposing mechanism in §34A(a)(1) permits the imposition of liability even when an inference of advertence is in fact unwarranted.

64 See Gossel, K.H., “Crimes of Recklessness: Prevention and Treatment of Offenders” (1979) 50 Rev. Int. de Droit Pénal 11, 19Google Scholar; Ezer, Adi, Culpability, Recklessness and Negligence in the Criminal Law (Tel Aviv, Pearlstein-Ginosar, 1999) 159–65 (in Hebrew)Google Scholar.

65 Wechsler, Herbert & Michael, Jerome, “A Rationale of the Law of Homicide II” (1937) 37 Colum. L. Rev. 1261, at 1274CrossRefGoogle Scholar. The observation at note 59 regarding the actor who sincerely believes he can avoid the forbidden result equally applies in the present context.

66 The argument advanced in the literature to justify the imputation of a mental state of recklessness to bad-tempered and callously indifferent actors, even though they do not advert to the risks created by their actions, runs as follows: If the actor fails to realize the risk engendered by his conduct because his character is such that he disdains the interests of society to such a point that he doesn't even care enough to take notice, then his moral blameworthiness is no less reprehensible than that of the typical reckless offender. In this vein, Samuel Pillsbury observed:

We may blame persons for failing to perceive risks to others when we can trace their lack of awareness to bad perception priorities. In such a case, we judge the person guilty of a bad choice. In setting his or her perception priorities, the individual assigned too low a priority to the value of other human beings. The key to culpability for failure to perceive is why the person failed to perceive …. Culpability should depend on the [actor's] reasons for perceptive failure, not on the failure itself. (Emphasis added)

Pillsbury, Samuel H., “Crimes of Indifference” (1996) 49 Rutgers L. Rev. 105, 151–52Google Scholar. See also Duff, R.A., “Recklessness” [1980] Crim. L. Rev. 282, 289–92Google Scholar; Syrota, George, “A Radical Change in the Law of Recklessness” [1982] Crim. L. Rev. 97, 102–04Google Scholar; Duff, R.A., Intention, Agency & Criminal Liability (Oxford, Basil Blackwell, 1990) 139–79Google Scholar; Kugler, Itzhak, “The Requirement of Knowledge of the Circumstances in the New General Part of the Criminal Code” (1996) 5 Plilim 149, 158–62 (in Hebrew)Google Scholar; Ezer, supra n. 64, 152-82.

67 On the distinction between public wrongdoing and private morality, see Fletcher, supra n. 8, 799-802; Duff, R.A., “Choice, Character & Criminal Liability” (1993) 12 Law & Philosophy 345, 381CrossRefGoogle Scholar; Brudner, Alan, “Proportionality, Stigma and Discretion” (1996) 38 Cr. L. Q. 302, 308-10, 314–17Google Scholar; Pillsbury, supra n. 66, 126-28; Ezer, supra n. 64, 181.