culpability; that he thought he was shooting a woman when the object was a man is irrelevant.

§ 305. Causal Relationship Between Conduct and Result.

Causation may be found where the result would not have occurred but for the conduct of the accused operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the accused clearly insufficient.

Comment

Rules governing causation have never been specified in federal criminal statutes. The major problem in enunciating such rules is presented by situations in which two or more factors "cause" the result. This section is a modified "but for" test with a proviso that excludes those situations in which the concurrent cause was clearly sufficient to produce the result and the accused's conduct clearly insufficient. An alternative approach would be to have no specific provision on causation, leaving the matter to judge-made law. While the proposed section may not be useful in all cases where causation must be explained, it is intended to be an aid to uniformity and clarification whenever it does apply.

Chapter 4. Complicity

§ 401. Accomplices.

(1) Liability Defined. A person is guilty of an offense committed by the conduct of another person when:

(a) acting with the kind of culpability required for the offense, he causes or aids an innocent or irresponsible person to engage in such conduct; or

(b) with intent that an offense be committed, he commands, induces, procures, or aids such other person to commit it or, having a legal duty to prevent its commission, he fails to make proper effort to do so; or

(c) he is a co-conspirator and his association with the offense meets the requirements of either of the other paragraphs of this subsection.

A person is not liable under this subsection for the conduct of another person when he is either expressly or by implication made not accountable for such conduct by the statute defining the offense or related provisions, because he is a victim of the offense or otherwise.

(2) Defenses Precluded. Except as otherwise provided, in any prosecution in which the liability of the defendant is based upon the conduct of another person, it is no defense that:

(a) the defendant does not belong to the class of persons who, because of their official status or other capacity or characteristic, are by definition of the offense the only persons capable of directly committing it; or

(b) the person for whose conduct the defendant is being held liable has been acquitted, has not been prosecuted or convicted or has been convicted of a different offense, or is immune from prosecution, or is otherwise not subject to justice. (3) Affirmative Defense of Renunciation and Withdrawal. It is an affirmative defense in a prosecution under subsection (1) that, under circumstances manifesting a voluntary and complete renunciation of his culpable intent, the defendant attempted to prevent the commission of the offense by taking affirmative steps which substantially reduced the likelihood of the commission thereof. A renunciation is not "voluntary and complete" if it is motivated in whole or in part by (a) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or an accomplice or which make more difficult

the consummation of the offense, or (b) a decision to postpone the offense until another time or to substitute another victim or another but similar objective.

Comment

This section is basically a restatement of 18 U.S.C. § 2 with modifications to codify or alter case law. The proposed language is substantially similar to that used in a number of recent state revisions. Subsection (1) (a) sets forth the circumstances under which liability for the conduct of an innocent agent will attach and clarifies 18 U.S.C. § 2(b). Subsection (1) (b) must be examined in connection with § 1002 (Criminal Facilitation). Accomplice liability is limited to a person who aids another with intent that the other commit an offense; aiding with knowledge that the person aided intends to commit a crime is punishable, if at all, as the lesser offense of facilitation. This subsection also states explicitly that breach of a legal duty to prevent the commission of an offense will produce liability therefor. Subsection (1) (c) rejects the doctrine of Pinkerton v. United States, 328 U.S. 640 (1946), that mere membership in a conspiracy creates criminal liability for all specific offenses committed in furtherance of the conspiracy. But see § 1005 (Organized Crime Leadership).

Subsection (2) codifies existing case law. See §§ 1002(2), 1004 (4) for similar provisions with respect to criminal facilitation and conspiracy.

Subsection (3) expresses a policy also used for the crimes of attempt, criminal solicitation, and conspiracy (§§ 1001(3), 1003(4), and 1004(5)), and is intended to encourage voluntary abandonment of a culpable purpose prior to the causing of any harm.

§ 402. Corporate Criminal Liability.

(1) Liability Defined. A corporation may be convicted of:

(a) any offense committed in furtherance of its affairs on the basis of conduct done, authorized, requested, commanded, ratified or recklessly tolerated in violation of a duty to maintain effective supervision of corporate affairs, by any of the following or a combination of them:

(i) the board of directors;

(ii) an executive officer or any other agent in a position of comparable authority with respect to the formulation of corporate policy or the supervision in a managerial capacity of subordinate employees;

(iii) any person, whether or not an officer of the corporation, who controls the corporation or is responsibly involved in forming its policy;

(iv) any other person for whose act or omission the statute defining the offense provides corporate responsibility for offenses;

(b) any offense consisting of an omission to discharge a specific duty of affirmative conduct imposed on corporations by law;

(c) any misdemeanor committed by an agent of the corporation in furtherance of its affairs; or

(d) any offense for which an individual may be convicted without proof of culpability, committed by an agent of the corporation in furtherance of its affairs.

(2) Defense Precluded. It is no defense that an individual upon whose conduct liability of the corporation for an offense is based has been acquitted, has not been prosecuted or convicted or has been convicted of a different offense, or is immune from prosecution, or is otherwise not subject to justice.

See comment to § 403, infra.

Comment

§ 403. Criminal Liability of Unincorporated Associations.

An unincorporated association may be convicted under circumstances corresponding to those set forth in section 402 with respect to corporations.

Comment

Sections 402 and 403, a codification of present case law with minor variations, set forth those circumstances under which an organization becomes liable for offenses committed by its agents. For felonies, the prosecution must prove authorization by management, an act or omission by a person as to whom the statute defining the offense provides liability, or an omission when a duty of affirmative conduct is imposed on organizations by law. Liability for misdemeanors and nonculpable offenses also arises from the conduct of any agent of the organization who commits the offense in furtherance of the affairs of the organization. Distinctions based on the size of the organization, whether it is or is not a business or is or is not incorporated are not made.

§ 404. Individual Accountability for Conduct on Behalf of Organizations.

(1) Conduct on Behalf of Organization. A person is legally accountable for any conduct he performs or causes to be per

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formed in the name of an organization or in its behalf to the same extent as if the conduct were performed in his own name or behalf.

(2) Omission. Except as otherwise expressly provided, whenever a duty to act is imposed upon an organization by a statute or regulation thereunder, any agent of the organization having primary responsibility for the subject matter of the duty is legally accountable for an omission to perform the required act to the same extent as if the duty were imposed directly upon himself. (3) Accomplice of Organization. When an individual is convicted of an offense as an accomplice of an organization, he is subject to the sentence authorized when a natural person is convicted of that offense.

(4) Default in Supervision. A person responsible for supervising relevant activities of an organization is guilty of an offense if his willful default in supervision within the range of that responsibility contributes to the occurrence of an offense for which the organization may be convicted. Conviction under this subsection shall be of an offense of the same class as the offense for which the organization may be convicted, except that if the latter offense is a felony, conviction under this subsection shall be for a Class A misdemeanor.

Comment

This section deals with the liability of agents of an organization. It makes explicit the rule that the human perpetrator is not absolved by the fact that an organization is liable for the offense. It also imposes liability upon agents for omissions to perform acts required for organizations and for defaults in supervision which contribute to the occurrence of an offense, without the necessity of proving specific culpability of the agent.

§ 405. Special Sanctions in Cases of Organizational Offenses.

(1) Organization. When an organization is convicted of an offense, the court may, in addition to or in lieu of imposing other authorized sanctions, do either or both of the following:

(a) require the organization to give appropriate publicity to the conviction by notice to the class or classes of persons or sector of the public interested in or affected by the conviction, by advertising in designated areas or by designated media, or otherwise;

(b) direct the Attorney General, United States Attorney, or other attorney designated by the court to institute supplementary proceedings in the case in which the organization was