Professor Susan Dimock Abstract: I have argued elsewhere that our current intoxication rules cannot be justified. I have considered whether 'voluntary' intoxication can be substituted for the required mens rea of basic intent crimes, can itself be an alternative basis of criminal fault, is itself necessary reckless or negligent, or can be justified under a tracing principle ala John Martin Fischer and Mark Ravizza; in all cases I argued that these attempts to justify our current treatment if intoxicated offenders fail. Doug Husak will offer a different attempt to justify holding intoxicated persons responsible for what they do, based on the attitude their actions express at the time they are done (and so eschewing any tracing strategy). Because he does not rely on a tracing strategy, he thinks his approach shows that the problem of intoxication can be treated independently of the actio libera doctrine; his approach, in other words, suggests that action libera arises only in tracing cases. I will argue that even if he is right, there is a limit to both tracing and non-tracing approaches to grounding liability for intoxicated criminal conduct, namely the voluntariness requirement. I have been persuaded by Husak and others that there is no strict "act" requirement, as understood in the "voluntary act" requirement for the actus reus of crimes. But as far as I know, virtually all such skepticism is aimed at the act portion of the requirement, not the 'voluntariness' requirement itself. Whether we hold people liable for acts, omissions, actions, conduct, choices, realizations of agency or whatever, I assume that most people think there must still be some voluntariness requirement that applies to such actions, conduct, etc. This, again, is independent of whether we cash voluntariness causally via volitions or will, as parts of plans, as events of which the agent has a certain conscious awareness, as expressions of practical attitudes or so on. All that is necessary is that there is some voluntariness requirement that rules out the propriety of punishing persons who perform the action or bring about the result corresponding to the actus reus of a criminal offence under the kinds of conditions that have become the staple of criminal law textbooks: while in an epileptic or diabetic seizure, while being attacked by a swarm of bees, while being physically compelled by another, while sleepwalking, or while in a disassociative state such automatism, caused by a blow to the head or a severe emotional trauma. So long as there is a voluntariness requirement in criminal law, then at least some persons will fail to be acting voluntarily at the time of the commission of the alleged criminal offence, and they will lack such voluntariness because they have voluntarily consumed intoxicants. I will address whether the compromises so many jurists and theorists seems willing to entertain to sustain a conviction even in the absence of the normally-required mens rea conditions for the offence can be extended or modified to justify conviction of intoxicated persons even for 'actions' not voluntarily undertaken. My conclusion will be skeptical, but the exercise may shed useful light on the continuing question of what 'voluntary act' requirement should be recognized in criminal law, as well as on own understanding of the action libera doctrine itself.

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Actio Libera, Intoxication and the Voluntary Act Requirement