Legal Theories of Causation in Criminal Law

Action and Results: Objective Type 2

In result-oriented crimes, it must be possible to attribute the typical injury to the actions or omissions. To that end, legal systems rely on theories of causation. According to the theory of equivalence of conditions (frequently cited by the Supreme Court), a fact is the cause of the result when, if the first is mentally deleted, the second does not occur (conditio sine qua non).

However, this criterion is not always sufficient. Sometimes, despite the condition being mentally removed, the result continues to occur, yet it may still be considered the cause of the result (for example, when two people provide an equally lethal dose of poison to a victim). Moreover, not all "conditions" can be considered a "cause" of the result without infringing upon the prohibition of regressus ad infinitum; for instance, an arms manufacturer is not held responsible for a murder committed with a weapon they produced.

Causation in Omissions and Command Responsibility

In crimes committed by omission, no physical condition of the outcome is introduced, leading to the concept of hypothetical causation. Additionally, in cases of command responsibility, one must distinguish between the person who introduces the material condition of the result and the person who legally causes it.

The Dominant Theory of Objective Attribution

To identify which facts may be considered the cause of a result, various theories have been developed based on the distinction between physical "status" and legally relevant "cause." At present, the dominant theory of causation focuses on the following criteria:

Creation or Increase of Risk

According to an ex-ante evaluation of the conditions of action, this criterion serves to:

• Exclude cases of decreased risk (such as life-saving surgery).
• Exclude an interruption of causation (for example, an accident involving the ambulance transporting the wounded).
• Exclude cases of self-endangerment (autopuesta en peligro) by the victim (e.g., when a driver at excessive speed runs over a cyclist riding without lights).
• Exclude any other course in the production of the result not attributable to the prior fact (e.g., cases where a physician errs in treatment when even correct treatment would not have prevented the death).

Acting Contrary to the Purposes of Legal Protection

This criterion excludes conduct that does not violate the standard of care that should be respected to protect the legal right in question.