VOLUNTARISM, VULNERABILITY, AND CRIMINAL LAW: A RESPONSE TO PROFESSORS HILLS AND O'HEAR

We are grateful to Boston University Law Review for publishing this mini- symposium on our work and to Professors Hills and O'Hear for their careful and subtle analysis of our recent scholarship. 1 In this Response, we clarify a few features of our argument that we think highlight how little disagreement with our interlocutors exists on three very central issues. While some differences persist, we hope our Response narrows the gap between our positions and those of Professors Hills and O'Hear. 2 Before addressing specific criticisms, it is worth recapitulating what our bottom-line conclusions are so we can better see if there are any practical disagreements with our critics. Summarizing quickly: we support decriminalization in the cases of parental responsibility laws (based on strict and vicarious liability), bigamy, adultery, and nonpayment of parental support; we endorse decriminalizing incest between most adults, though we are divided on certain sub-issues in the incest context; and we are highly skeptical of criminalization in the nonpayment of child support context, but concede that more research needs to be done on just how effective criminalization is in achieving compliance. The only area in which we are largely unconflicted about criminalization is the omissions (failure to rescue) context - and that is where our critics primarily aim their critiques. This Response focuses on three general points; most of the discussion of those general points comes up in the context of disagreement over the scope and rationale for omissions liability. We begin by explaining how Professors Hills and O'Hear tend to overstate our commitment to voluntariness as a basis