Blame for Ignorance? Perspectives on Willful Blindness and Mistakes of Fact

Can a person be blamed for turning a blind eye to the circumstances of his or her conduct? From a criminal law perspective, the concept of “willful ignorance” (“willful blindness” or “conscious avoidance”) exists – in varying forms and terms – in different jurisdictions. It usually involves individuals deliberately ignoring or avoiding in­for­mation that should normally have been obvious to them to protect themselves from liability or prosecution.
In some form or another, every legal system must deal with the phenomenon of people trying to avoid respon­si­bil­ity by pleading ignorance. And yet, the ways in which this phenomenon is dealt with are different: In many common law jurisdictions, for instance, a person may be treated as having acted knowingly, despite a mistake of fact or circumstance. The paradigmatic example is that of a person at an airport who is asked by a stranger to take a suitcase filled with drugs. If the person does not know the contents of the suitcase but agrees to take it without checking the contents, that person is said to be willfully ignorant but criminally liable. But how is it possible to justify the attribution of culpability to an accused who has acted out of sheer, albeit avoidable, ignorance?
In many common law jurisdictions, for instance, a person may be treated as having acted knowingly, despite a mistake of fact or circumstance. Some US states, however, have explicitly refused to adopt this otherwise well-established doctrine of “willful ignorance”. At first glance, civil law jurisdictions seem to argue the opposite: According to German criminal law, for example, any mistake under the circumstances corresponding to an element of the crime (mistake of fact) excludes intent – it is irrelevant whether the mistake is the person’s fault or not. Arguably, “willful ignorance” constellations could be covered by the concept of dolus eventualis. Notwithstanding the existence of dolus eventualis, however, Spain chose a different path and transplanted the doctrine of “willful ignorance” into Spanish criminal law doctrine. It can be argued that the Spanish example can serve as a blueprint for other civil law jurisdictions, if the concepts of willful ignorance and dolus eventualis are distinguishable.
To examine the problem outlined, we will organize an international and interdisciplinary conference that will bring together researchers from different disciplines as well as from the continental and Anglo-American jurisdictions on this question. We aim to collect views from various jurisdictions, exploring and critically reflecting on their strength and potential.  Based on this workshop, which will take place in September 2024, the authors will elaborate on the problems of culpable ignorance of facts in an internationally visible publication.