11

A contrived example:

  • You connect the fuse of a bomb to a 50/50 randomizer and take it for a walk across some public place.
  • You get lucky with the randomizer and the bomb doesn't go off.

  • Can you still be legally charged? I understand that planning a crime can be illegal, but here you just allowed for the possibility of one to happen.

  • Does the probability matter? Let's say the chance was not 50/50, but one in a million for it to go off. Do you really intend for something to happen if you make it unlikely to happen?

I know this example is very contrived, but it distills down the moral/legal question that occurs when a person gives a machine the power to make a 'decision', that may be problematic:

Is creating the possibility for an illegal outcome already fundamentally illegal?

I am mainly thinking about this in the context of AI systems, but would like to have a general answer. Here are two real scenarios, just to illustrate where I'm coming from: 1,2

3
  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    Nov 7, 2023 at 20:40
  • 2
    To use a more real example, drink driving is illegal even if you don't kill anyone. Likewise, shooting a gun at someone is illegal even if you miss.
    – komodosp
    Nov 9, 2023 at 12:57
  • Even slow electronics are extremely fast. If you use an Arduino Uno or Nano for your randomizer, it works at 16 mHz, so your "one in a million" could happen multiple times in a second even on that slow device. Nov 9, 2023 at 17:18

3 Answers 3

43

I would say this is an act of Reckless Endangerment

Reckless endangerment in the first degree You will face this charge if you recklessly engage in conduct that creates a grave risk of death to another person under circumstances which evince a depraved indifference to human life. It is a Class D felony. N.Y. Pen. Law § 120.25.

Does the probability matter? Probably. You probably cannot prove the probability since in real life scenarios there are unexpected ways the bomb could go off. The court would have to evaluate on a case by case basis.

7
  • 1
    This is probably the perfect answer for the bomb example I gave, thank you! Would you know if there are any more general laws for this, that would cover the example cases I gave, where no human lives are endangered?
    – ChrisB
    Nov 6, 2023 at 16:18
  • There is N.Y. Pen. Law § 145.25. Reckless Endangerment of Property that could apply if only property is endangered. Nov 6, 2023 at 16:45
  • @ChrisB - Jen's answer covers such a generalization already. Your "follow-up question" here is a very general one as you no longer indicate which legally protected interest is being jeopardized (other than human life, as you say), so the answer remains general, too: there was an attempt, without specifying what was attempted. Nov 7, 2023 at 12:26
  • 3
    For the sake of completeness, I will add that recklessness is a well-understood legal concept: en.wikipedia.org/wiki/Recklessness_(law) Nov 7, 2023 at 15:25
  • I'm not familiar with NY penal law, but if there is a wilful intent to cause harm, then I believe it's going to be an even worse felony than just reckless endangerment, even if the perpetrator leaves a 50% probability of not causing harm.
    – Stef
    Nov 7, 2023 at 21:25
25

No, the possibility of illegality is not illegal

Of course, your example is just straight out illegal because it’s reckless endangerment, so it’s a poor example for the purpose. Let’s try a different one:

You get in a car and drive.

This activity exposes people to risk of injury and death but it’s not a priori illegal.

If you don’t have a licence or are drunk when you do it then the act is illegal as soon as you do it, but assuming you have a legal right to drive, it’s not illegal to do so.

Nor is it illegal to drive through a pedestrian crossing. But it is usually illegal if you don’t give way to a pedestrian. But, the individual circumstances matter.

Doing anything raises the possibility of future illegality. So does not doing anything.

An act is illegal (specifically criminal) if you commit each of the elements that the crime requires. It is always assessed retrospectively.

2
  • I think recklessness is the important concept here. Doing many things can potentially lead to illegal situations later on. Whether you are still allowed to do them or not depends on whether you have had reasonable precautions in place and procedures to handle what happens if the illegal situation occurs. This is true for driving, file hosting, banking, etc. etc.
    – xLeitix
    Nov 8, 2023 at 14:22
  • 3
    @xLeitix recklessness is too high a bar, some crimes require merely negligence. Or, in the case of some offences the failure to take reasonable precautions.
    – Dale M
    Nov 8, 2023 at 20:39
16

This would be an attempt. An attempt requires the intention to commit the completed offence, along with a step taken that is more than merely preparatory.

You are wondering about how intent would be proved. As always, it would be proved with evidence, including testimony if given, to be weighed according to its credibility and reliability.

There is also a presumption that a person intends the natural outcomes of their actions.

An analogy: if one were to fire a bullet into a crowd with a 50% chance of hitting a person, and "get lucky" that it hits no one, that is still attempted murder.

At some point, the circumstances will be such that no intention can be inferred, but that is not based purely or even primarily on the probability of the harm. As mentioned, all relevant evidence can be used to prove intent.

And even if there is no intent for the possible worst-case outcome, the mere presentation of the risk can itself be a lower-level offence, as described by IKnowNothing, but this depends on the precise offences that have been codified in the jurisdiction.

2
  • 7
    Conversely, if you intended to kill someone, but have a misconception of what actually kills them, then it is still attempted murder even though the probability is zero. e.g.) If you thought x amount of poison would kill someone, but the amount is actually too low to actually kill them based on their weight
    – Nelson
    Nov 7, 2023 at 2:22
  • Better example: you thought they were allergic to peanuts so you intentionally served them some then gloated to them as you thought they started choking to death. Is it still attempted murder?
    – jo1storm
    Nov 8, 2023 at 14:02

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