Comparing criminal and civil responsibility: Contextualising claims to distinctiveness

This chapter examines some of the purportedly distinctive features of criminal responsibility (broadly construed) by comparing it to civil responsibility (broadly construed). Using examples from the law of sexual wrongs, the chapter outlines some key points of contention that arise in the case of congruent wrongs (i.e. civil and criminal wrongs that overlap or are identical) and incongruent wrongs (i.e. civil wrongs with no corresponding criminal wrong and vice versa), mapping these across three areas: the substantive basis for responsibility, the process governing the attribution of responsibility, and the aims and effects of these two forms of responsibility. The chapter argues that across each of these areas there is a tension between the desire to demarcate the boundary between civil and criminal responsibility clearly, and the desire (or at least tendency) to blur this boundary in practice. The chapter further argues that comparing civil and criminal responsibility, and placing both forms of responsibility into context, provides a nuanced appreciation of the apparent distinctiveness of criminal responsibility and the tendency of this distinctiveness to be called into question.