Complicity

Suppose that agent A performs wrongful act W in order to bring about outcome O. Then a person is complicit in A’s performance of O just in case the person performs an act (which might be an intentional omission) in an effort to contribute to O in the sense of making it more likely to occur.¹ In every instance of complicity, there exists a principal actor, and in some cases, there is more than one principal actor.

The accomplices are moral agents that perform actions that contribute to this outcome. Throughout this chapter, I will refer to these actions as “contributing actions,” with the understanding that they might take the form of omissions. Here it is essential to note that the accomplices are contributing to the outcome. They are not contributing to the relevant actions of the principal actor; indeed, in many cases, an accomplice’s contributing actions occurs after the principal actor has performed his or her action. It is also essential to note that the contrib­uting action of an accomplice need not causally contribute to the outcome; in cases where an accomplice’s contributing action consists of an omission, it will surely fall short of constituting a causal contribution.²

Typically, the principal actor initiates a chain of events producing an outcome, and one or more accomplices perform an action contributing to the outcome. But occasionally, an accom­plice initiates a chain of events leading to the production of an outcome by a principle actor. This can take place when someone commands a second person to produce a harmful outcome, and that person subsequently does so.

Thomas Aquinas has enumerated nine ways in which a person can be an accomplice in the Treatise on Justice from the SummaTheologiae (II-II. Q62. A7.). First, someone can be an accom­plice by way of commanding another to do something. Second, someone can be an accomplice by way ofcounseling someone in how to do something. Third, someone can be an accomplice by way of consenting or offering permission to undertake a course of action. Fourth, someone can be an accomplice by way of offering flattery or encouragement to another. Fifth, someone can be an accomplice by way of “receiving” or covering for another after the fact. Sixth, someone can be an accomplice by way of participating in a project of another. Seventh, someone can be an accomplice by way of remaining silent about the wrongdoing of another. Eighth, someone can be an accomplice by way of failing to prevent the wrongdoing of another. Ninth, someone can be an accomplice by way of failing to denounce the wrongdoing of another.

Several words of explanation are in order. First, the ninth way is a special case of the sev­enth: the failure to denounce is one manner in which a person can remain silent about the wrongdoing of another. Second, Aquinas attaches a condition to the eighth and ninth ways of being complicit, and that is the condition that one must be bound or obligated to prevent or denounce the wrongdoing. If I confront a person about to commit a wrongdoing, then, if I fail to prevent or denounce, I am an accomplice only if I have a moral obligation to prevent or denounce. This seems to be a reasonable stipulation.

It is important to note that moral complicity is not the same as legal complicity, and I shall now point out several differences. One difference can be seen in an alternative scheme for distinguishing ways of being complicit proposed by legal scholar Sanford Kadish. His taxonomy consists of ten categories: advising, persuading, commanding, encouraging, inducing, procuring, investigating, provoking, soliciting, and assisting (1985). From a moral point of view, his list seems incomplete, because the failure to act seems capable of rendering one complicit in the wrongdoing of another (consider the example of the child with the firearm). American crim­inal law does not acknowledge omitting to act as capable of rendering one complicit in the wrongdoing of another (Smith 1991: 35), and this is the reason Kadishs list does not include it. If someone knows that her neighbor is providing sanctuary to a wanted fugitive and makes no effort to contact law enforcement authorities, she is at most guilty of a misdemeanor, i.e., misprision of felony.

Another way in which moral complicity differs from legal complicity involves acting after someone has committed a wrongdoing. In American criminal law, someone can be prosecuted for being an accessory after the fact, but such activity is not regarded as complicity in wrong­doing. (And the difference is more than terminological, for a person who is morally complicit by way of covering for another after the fact need not be guilty of anything that qualifies as being an accessory after the fact.)

A third way in which moral complicity differs from legal complicity concerns situations where the wrongdoer acts differently than what was understood or agreed upon by the accomplices.

A fourth and final way in which moral and legal complicity differ concerns persons who unintentionally aid another in wrongdoing. Someone can be legally complicit in another’s wrongdoing when his or her actions are reckless or negligent, even though no intent to con­tribute to the other’s wrongdoing is present. Some persons who have allowed others to drive their vehicles have been found complicit in accidents that have resulted, even though their role was totally unintentional (Smith 1991: 40). This has happened particularly in cases where they entrusted their vehicles to intoxicated or underage persons (this is actually a conten­tious issue in law). Someone might not necessarily be morally complicit in situations such as these if, for example, the would-be driver produced a forged document stating that he was not underage.⁴

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