In many companies, the culture of targets is sold as a symbol of efficiency: aggressive numbers, ambitious multiples, generous bonuses and the silent mantra of “I don’t care how, I just want the result.” It is in this environment that willful blindness in corporate practice stops being a distant doctrinal expression and becomes a very real risk of turning incentives and omissions into criminal liability for directors and senior managers.
Why willful blindness in corporate practice has reached the boardroom
The idea that “not knowing” protects the executive has always been seductive. In complex structures, with long decision chains and scattered operations, it is tempting to imagine that members of senior management can shield themselves behind org charts and short dashboards, delegating execution to lower levels.
The problem is that Criminal Law – and, in particular, Corporate Criminal Law – does not work only with what the executive actually knew, but also with what he or she chose not to know in the face of persistent signs of irregularities. Willful blindness arises precisely in this space: when top management chooses to stay away from operational reality to preserve the comfort of convenient ignorance.
On the Lucchesi Advocacia blog I have already addressed the basic question – what exactly is willful blindness? – showing how the figure was imported into Brazil with little rigor and used as a shortcut to expand the scope of dolo in complex cases.
In this new text, the focus shifts to corporate practice: what happens when the culture of targets creates the perfect breeding ground for that form of liability to prosper.
From targets culture to willful blindness in corporate practice
There is nothing illegitimate about setting ambitious goals, linking part of variable compensation to performance or pushing for efficiency. The problem appears when the culture of targets starts functioning as an incentive structure for indifference: only the number delivered matters, the path taken becomes secondary.
This risk shows up clearly in a few recurring scenarios: cost-reduction targets that are incompatible with full compliance with environmental rules; revenue targets in heavily regulated sectors without a proportional expansion of the compliance team; commercial deadlines that cannot be met without “shortcuts” in public tenders or contracts with government agencies. The implicit message is always the same: “make it happen, we’ll deal with the rest later.”
In such contexts, the executive does not need to order anyone to break the law. It is enough to tolerate warning signs, to stop asking questions when results look “too good to be true”, to disregard uncomfortable internal reports or to bury legal opinions that point to risks that are hard to manage. Willful blindness in corporate practice materializes precisely in the sum of these small decisions not to see.
From a doctrinal perspective, this is where the axis shifts between negligence and intent: when the omission in knowing is no longer mere carelessness and becomes part of a conscious project of maximizing results, even at the price of violating the law.
Incentives, omissions and the mental element in holding executives liable
The discussion about willful blindness is not merely terminological. It concerns the mental element that allows for a conviction for an intentional crime. If the statute does not punish a given conduct as negligence, it is not admissible to reconstruct, by way of interpretation, a form of “presumed intent” based solely on the executive’s place in the hierarchy.
In my book Punindo a culpa como dolo: o uso da cegueira deliberada no Brasil, I developed this critique systematically: a significant part of Brazilian case law equates the mere lack of diligence with the conscious acceptance of the result, punishing negligence as if it were intent, in clear tension with the principle of legality and with the internal structure of the subjective element of the offense.
Transposed into corporate practice, the central point is to understand that incentives and omissions are never neutral. When senior management designs mechanisms that make non-compliance foreseeable – or even inevitable –, turns a blind eye to red flags and cuts off uncomfortable information as it moves up the chain of command, it moves dangerously close to a scenario in which courts start to see intent where, in principle, there was only organizational failure.
This does not mean that every executive working under aggressive targets should be treated as an intentional author of any offense that occurs at the operational level. It does mean, however, that the way the company structures its information flows, reporting lines, whistleblowing channels and responses to red flags will be decisive in how the mental element is read in a criminal investigation.
Willful blindness is not a shortcut to punish executives: what sound doctrine requires
In technical criminal-law terms, willful blindness – as originally developed in Anglo-American law – rests on a much more demanding standard than the label suggests. It is not enough that the agent “could have known”; it is necessary that he or she be aware of a highly probable risk and, even so, adopt an active stance of staying ignorant, deliberately refusing relevant and accessible information.
When this doctrinal construction is transposed uncritically into Brazilian Criminal Law, there is a serious risk that it will become a “wild card” to convict anyone in leadership positions, without reconstructing with precision the content of their knowledge, the degree of probability perceived and the concrete opportunities to dispel the doubt. It is exactly against this inflated use that a significant part of the literature argues – and which I revisit in my long-term research.
From the standpoint of companies, the message is clear: there is no neutrality in the choice to stay away. The decision to preserve opaque structures, to rely on filtered reporting, to convene boards without robust informational agendas, or to have a C-suite that “does not read” relevant alerts will be interpreted, in complex investigations, as evidence that ignorance was less a fact of life and more a self-protection strategy.
How to align targets, governance and defense: what senior management can do
If the culture of targets is not going away – and should not go away in competitive companies –, the challenge is to align governance, compliance and defense strategy so that the drive for results does not morph into intentional liability.
First, senior management cannot live on celebratory dashboards. It must establish documented decision trails, reserve formal space for the presentation of risks (for example, a standing compliance item in board and executive-committee agendas), reinforce the autonomy of technical areas and guarantee channels through which critical information will not be strangled by short-term interests.
Second, it is essential to create response mechanisms that show, in a verifiable way, that the company takes red flags seriously: independent internal investigations, adjustment of incentives when necessary, course correction in sensitive contracts and operations. The absence of any reaction, once the problem is known, weighs far more heavily, from a criminal-law perspective, than any institutional slogan.
Finally, when the crisis is already underway – search and seizure operations, subpoenas for testimony, the opening of a criminal investigation – the interaction between internal culture and technical handling of the case becomes decisive. The way the company reconstructs its decision history, explains its incentives and demonstrates that it did not foster a “don’t ask, don’t tell” logic is what often separates a narrative of willful blindness from the honest reconstruction of an organizational failure.
Conclusion: ambitious targets do not need to walk hand in hand with willful blindness
The Brazilian experience shows that, in contexts of high regulatory exposure, a poorly calibrated targets culture can be read as a culture of indifference. When that framework is combined with opaque structures and systematic omissions, it opens the door for investigations and judgments to invoke willful blindness in corporate practice as a basis for holding executives criminally liable.
Avoiding this scenario does not require renouncing ambition, but rather building a management model that allows the organization to see and to react: robust information flows, incentives aligned with compliance, consistent documentation of key decisions and qualified technical work when risk turns into investigation.
Ultimately, the executive who chooses to see – who builds institutional conditions to know what is happening inside the company – substantially reduces the probability of having his or her name associated with a narrative of willful blindness that, in practice, turns a culture of targets into criminal liability.
