Looking Past Contrived Ignorance: Assessing the Value of the Willful Blindness Doctrine to Prove Individual Knowledge of Money Laundering within Banks

Abstract

Despite the revelation of grave, widespread violations of existing money laundering statutes within some of the biggest banks in the world, the United States’ authorities have refrained from prosecuting those banks and/or their top executives. One of the reasons behind this reluctance may lay on the difficulty in proving the executives’ knowledge as to the illegal origin of the funds involved in the prohibited transactions. With respect to that, the willful blindness doctrine may be useful as a logical tool for prosecutors, allowing them to attribute the scienter requirement in money laundering statutes (“knowledge”) to individual wrongdoers. To that effect, the two main formulations of the willful blindness doctrine that coexist among courts and commentators (willful blindness as a substitute for knowledge – willful blindness as proof of knowledge) are analyzed in order to determine which of them can be used without infringing on the principle of legality, which elements have to be present for the willful blindness to be effectively used, and if (and how) it might apply to the facts of the money laundering cases in which the banks were involved.Also, the use of the willful blindness doctrine in cases where a duty to know exists is analyzed in light of the modern German Law doctrine of “Infraction of Duty Crimes”, in order to ascertain if the violation of the obligated subjects duty to obtain the relevant information can trigger criminal responsibility for money laundering even if it results in a lack of criminal knowledge, as required in the money laundering statutes.