ABSTRACT
This is the third of three chapters on the mental state of the defendant, and the impact it might have on her culpability. Negligence looks quite similar to recklessness: the defendant acts in a situation with a risk of an unintended side-effect. The difference is that the defendant was not aware of the risk, even if she should have been. But there is a problem here: if she was not aware of the risk, she could not choose to avoid the risk — and therefore it is unfair to blame her. Indeed, it is not clear that we can call negligence a mental state at all, since there is nothing relevant in her head. We will look especially at the gross negligence case of Adomako [1994], an anaesthetist who failed to notice a dislodged oxygen tube, resulting in a healthy patient's avoidable death. If we find it difficult to blame the negligent defendant for an absent mental state, would it be possible (at least in some cases) to blame her for her defective character trait of “insufficient concern for the interests of others”?
