Responsibility gap or responsibility shift? The attribution of criminal responsibility in human–machine interaction

ABSTRACT

The prevalence of automation and advent of intelligent machines have created new constellations in which the attribution of criminal responsibility is complicated. Automation results in complex settings of interaction, while the conduct of technical systems is becoming less determined, predictable, and transparent. There is an ongoing scholarly debate regarding how these developments shape moral and legal agency, as well as the best ways of allocating responsibility. Concerns have been expressed about the emergence of responsibility gaps, calling for ways to ensure accountability. This article explores whether these apprehensions can be empirically substantiated. A factorial survey study (N = 799) conducted in Switzerland was used to research attribution mechanisms in criminal cases involving various forms of human-machine interaction. The results revealed that the level of automation significantly affected the attribution of responsibility. In cases of high automation, attribution became considerably more complex and more actors, especially corporate entities, were called to account. A difference in automation level (i.e., the question of how much humans are still ‘in the loop’) had a stronger effect than did the aspect of technology being described as capable of learning. However, the involvement of intelligent technology seemed to have made the responsibility attribution more arbitrary. According to the respondents, there were no discernable responsibility gaps. However, in the present research, significant shifts among the agents called to account were observable. Yet, since these evasion mechanisms are hardly covered by today's law, there is an ongoing risk of a gap between the desire for punishment and actual legal constructs.

KEYWORDS:

• Criminal responsibility
• human–machine interaction
• responsibility gap
• agency
• responsibility attribution

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No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

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Monika Simmler

Monika Simmler Assistant Professor of Criminal Law, Law of Criminal Procedure and Criminology.