See No Evil, Hear No Evil, Speak No Evil: How the Model Penal Code Incentivizes Ignorance Among Corporate Executives

Authors

Graham Garvin

Document Type

Notes

Abstract

Due to the Model Penal Code’s stringent “knowledge” requirement for vicarious criminal liability, corporate executives, directors, and high managerial agents are inadvertently incentivized to stay uninformed of their subordinates’ actions as a means of safeguarding their employers. This not only leads to a deficiency in oversight, permitting potential criminal activities to go unchecked within corporations, but also establishes a significant shield against corporate criminal liability, given the challenges in proving such knowledge. Thus, a lower threshold for corporate, criminal, vicarious liability should be imposed, which instead promotes oversight. Others have recognized the issue at hand, but most often advocate for liability to fall upon individual executives. The United Kingdom’s “failure to prevent” series of offenses recognizes the difficulty in proving executives’ knowledge, and the injustice in prosecuting somebody who was ignorant to the conduct at issue.

Similarly, this Note argues that corporations should be strictly and vicariously liable for criminal conduct when inadequate preventative measures are in place and a corporate agent fails to prevent the wrongdoing. This Note incorporates aspects from the United Kingdom’s progressive “failure to prevent” approach with facets of modern American jurisprudence to provide a comprehensive solution to prosecuting corporations while also motivating executives, directors, and managerial agents to make themselves aware of internal activities.

Recommended Citation

Garvin, Graham (2025) "See No Evil, Hear No Evil, Speak No Evil: How the Model Penal Code Incentivizes Ignorance Among Corporate Executives," Georgia Criminal Law Review: Vol. 3: No. 2, Article 8.
Available at: https://digitalcommons.law.uga.edu/gclr/vol3/iss2/8