Across the Spectrum of Intent

This chapter examines in detail the complete spectrum of fault degrees available in criminal law, from the highest levels of intent to no-fault regimes, to determine whether the challenges in establishing mens rea as found in Chap.  12 are uniform to all fault degrees. It is found it is not uniform, and that three main categories can be identified. First, conditions where no gap exists in practice: in situations where an AWS-user acts purposely or knowingly, criminal liability can generally be ascribed, even with AWS. Second, conditions leading to judicious gaps are similarly unproblematic: these refer to mental states corresponding to no intent (negligence or strict liability) where it is argued that an inability to hold anyone criminally liable is the intended result according to criminal law theory. The true problem is identified to lie in the medium levels of intent related to risk-taking, and particularly so in situations where the properties of AI obscure the nature and extent of the risk involved with a deployment decision: these are referred to as unknown and generic risk. Finally, the chapter also highlights the insidious situation of manufactured ignorance: this occurs where commanders could have known more specifically about the risk attached to the use of particular AWS through iterative analysis of prior deployments, but do not undertake this effort for practical or operational reasons. It is argued that future discussions should focus on unknown risk, generic risk and manufactured ignorance, and on finding solutions in criminal law to remedy these gaps.