Imposing Risks

Suppose, for the purpose of this blog post, that becoming belligerent while drunk is a characteristic that is inherited genetically. Suppose further that a man, Danny, has a mother and father both of whom become physically abusive to others when they drink alcohol. Danny is at a bar with friends on his 21st birthday. He hasn’t had a sip of alcohol in his life up until this point, and is faced with the choice of drinking alcohol for the first time. In this scenario, Danny is significantly more likely than most other people to become belligerent when he is drunk. Does he do something wrong when he chooses to drink the alcohol? He is, after all, much more likely than others to get into a bar fight and harm other people.

If your gut intuition is to say, “No he doesn’t do something wrong when he chooses to drink the alcohol! He does something wrong when he gets into a bar fight and harms others, if he does in the first place!”–then consider the following case.

Beatrice has a twisted sense of humor and likes playing racy practical jokes on complete strangers. She decides to pour a bottle of Ipecac into a pitcher of mystery punch at the restaurant she owns. Now, there is no guarantee that somebody at the restaurant will order mystery punch. Or that they will be served mystery punch from that particular pitcher if they do. Or that they will drink enough of the punch to begin vomiting furiously even if they are served a glass of fruit punch from that particular pitcher. Does Beatrice do something wrong when she chooses to pour the Ipecac into the pitcher?

It is my suspicion that many people are of the mind that Beatrice does something wrong but Danny does not. I think that it is mistaken for people to hold these two beliefs simultaneously. In both the case of Beatrice and the case of Danny, the following occurs:

An agent (either Beatrice or Danny) imposes an X% chance of an adverse event Y happening (either involuntarily intoxicating somebody with Ipecac or assaulting somebody, respectively) on another agent against his or her will.

If we believe that one of the two does something wrong, we must believe that both do something wrong. Some might be resistant to this. So they can bite the bullet and say, neither do anything wrong in either scenario. It makes no sense to say that somebody does something wrong when they merely impose risks on others. The movie Minority Report exists for a reason–to warn us against criminalizing potential behavior rather than actual behavior!

What if Beatrice poured arsenic rather than Ipecac into the mystery punch at her restaurant? And what if she had somebody in mind that she wanted to drink the punch? This seems to be premeditated murder. Actually, it is. Does Beatrice do something wrong when she tries to murder somebody by poisoning them with arsenic, to no avail?

In this scenario, an agent (Beatrice) imposes an X% chance of an adverse event Y happening (being poisoned to death by arsenic) on another agent against his or her will. But this other agent gets out of Beatrice’s restaurant unscathed. Perhaps they didn’t order the punch. Or they were served punch out of a different pitcher than the one the arsenic was poured in. Or they ordered the punch, but ended up having to leave early because they were called back to work early. Or they ordered the punch, but the waiter accidentally spilled it on them and they decided they did not want to have punch anymore.

If this agent (let’s call him Barry) found out that Beatrice was trying to poison him, he could prosecute Beatrice in a court of law for violating his rights. But we’ve established above that it doesn’t seem as though a mere imposition of risk can constitute a rights violation. This, however, is exactly what happens when somebody presses charges against another for attempted murder. You punish somebody not for actually harming you (or, setting back your interests) but for imposing risks of harm against you. In other words, the criminal justice system recognizes and enshrines a right against risking.

In his 2017 monograph entitled Imposing Risk, John Oberdiek argues that we have rights against risking along these very same lines. Clearly, we do not have rights against any kind of risk, for the exercise of one’s rights necessitates the imposition of risk on others, no matter how small. We have rights against what Oberdiek terms “impermissible risks.” There seem to be, however, problems with (a) determining what constitutes such an impermissible risk, and (b) knowing that the risks we deign impermissible are in fact such. Moreover, I feel as though there is something deeply problematic with prosecuting individuals on the basis of potentiality rather than actuality. There will be downstream effects not only for people like Beatrice, but also for people like Danny–and I don’t know if I want to live in a world that makes people culpable for unrealized behavior.