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Criminal code rewrite likely won’t affect business community

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Delaware is in the middle of an overhaul of its criminal code that would remove redundant laws and simplify complicated legalese. The impact on the state’s justice system could be significant. But the changes will have little effect on the business community, according to the Criminal Justice Improvement Committee, the group of judges and public defenders that undertook the code’s rewrite.

The code is largely made up of charges for individual criminal behaviors, such as committing fraud or assault. But at least one section addresses the question of criminal liability for those acting within an organization. In other words, could a corporate executive be liable for the actions of their company?

The existing code is somewhat ambiguous on that front. The law makes it clear that an individual agent could be liable in the case of “commission,” or a direct action, but not in the case of “omission,” or a failure to act.

“Where criminal liability of an organization can be based on omission liability, that interpretation would shield an organization’s agent from individual liability,” reads an annotation in the rewrite. But the whole idea of the law “is to ensure organizational agents can be held personally responsible for their criminal acts on behalf of the organization.”

The new code would make it clear that both commission and omission could get you into trouble. What does this mean for your average corporate executive in Delaware? As it turns out, these types of cases rarely appear in state courts.

“The individual liability via corporate liability arises very infrequently, especially in state courts,” said a spokesperson for the State of Delaware Administrative Office of the Courts.

The rewrite will receive public input at three public hearings this month.

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