General principles - Acts and omissions

Learning Outcomes

This article examines the foundational criminal law principle of actus reus, focusing on the requirement of a voluntary act and the circumstances under which an omission can satisfy this element. After reading this article, you will understand the distinction between voluntary and involuntary acts, identify the specific situations giving rise to a legal duty to act, and analyze how possession can constitute a criminal act, enabling you to apply these concepts to MBE questions.

MBE Syllabus

For the MBE, you are required to understand the essential elements of a crime, particularly the requirement of a physical act (actus reus). This involves analyzing:

• The requirement of a voluntary act.
• Acts that are considered involuntary (e.g., reflex, convulsion, acts during unconsciousness).
• Liability based on an omission to act.
• The circumstances creating a legal duty to act (e.g., statute, relationship, contract, voluntary assumption of care, creation of risk).
• Possession as a criminal act.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. For criminal liability to attach, the defendant generally must have performed:
   1. Any physical act, whether voluntary or involuntary.
   2. A voluntary physical act.
   3. A bad thought coupled with a specific intent.
   4. An omission where a moral duty to act existed.
2. A legal duty to act, the breach of which can result in criminal liability for an omission, can arise from all of the following EXCEPT:
   1. A statute requiring action.
   2. A close familial relationship.
   3. A personal moral code obligating intervention.
   4. A contractual obligation to provide care.
3. A defendant driving a car suffers a sudden, unforeseeable heart attack, loses control of the vehicle, and strikes a pedestrian. Can the defendant be held criminally liable for the pedestrian's injuries based on his driving at that moment?
   1. Yes, because driving is a voluntary act.
   2. Yes, under strict liability principles for operating a vehicle.
   3. No, because the loss of control was due to an involuntary act.
   4. No, unless the defendant had a specific intent to harm the pedestrian.

Introduction

A fundamental principle of criminal law is that a person cannot be punished for bad thoughts alone. For criminal liability to arise, there must generally be an actus reus—a physical act or, in limited circumstances, an omission to act—committed by the defendant. This act must be voluntary. This article explores the requirement of a voluntary act and the exceptions where a failure to act (an omission) can form the basis of criminal liability.

Key Term: Actus Reus The physical act or unlawful omission that constitutes the external element of a crime. It must generally be voluntary.

Voluntary Act Requirement

Criminal liability necessitates a voluntary act. An act is voluntary if it is a willed muscular contraction or bodily movement by the actor. Actions that are not the product of the actor's determination are not voluntary.

Involuntary Acts

Certain movements are deemed involuntary and thus insufficient to satisfy the actus reus requirement. These include:

1. Reflex or Convulsion: Bodily movements that are purely reflexive or result from a convulsion (e.g., an epileptic seizure) are not voluntary acts.
2. Acts During Unconsciousness or Sleep: Acts performed while unconscious or asleep are not voluntary. However, if a defendant knows they are susceptible to blackouts or falling asleep under certain conditions (e.g., narcolepsy while driving) and engages in risky behavior (like driving), they may be liable for earlier voluntary acts (like deciding to drive knowing the risk).

Worked Example 1.1

David suffers from severe epilepsy. While having a seizure, his arm flails and strikes Brenda, causing injury. Is David liable for battery based on the act of striking Brenda during the seizure?

Answer: No. David's arm movement during the seizure was an involuntary convulsive act, not a product of his conscious will. Therefore, the actus reus requirement for battery is not met by the striking itself. (Note: Liability might attach if David voluntarily put himself in a situation where a seizure was likely and could endanger others, e.g., driving against medical advice, based on the earlier voluntary act of driving).

Omissions as Actus Reus

While criminal law generally punishes affirmative acts, a failure to act—an omission—can serve as the actus reus for a crime, but only if specific conditions are met. There is no general duty to rescue or aid someone in danger.

Legal Duty to Act Required

For an omission to form the basis of criminal liability, the defendant must have had a legal duty to act. A mere moral obligation is insufficient. A legal duty can arise in several specific circumstances:

1. By Statute: Some statutes impose an affirmative duty to act (e.g., the duty to file taxes, the duty to register as a sex offender, the duty of a driver involved in an accident to remain at the scene). Failure to comply can be the basis for liability.
2. By Contract: A person may have a contractual duty to act (e.g., a lifeguard employed to safeguard swimmers, a nurse hired to care for a patient). Failure to perform the contracted duty can lead to criminal liability if harm results.
3. By Relationship Status: Certain relationships impose a duty of care, most commonly the duty of parents to care for their minor children and the duty of spouses to care for each other.
4. By Voluntary Assumption of Care: One who voluntarily assumes the care of another and secludes the helpless person, preventing others from rendering aid, assumes a duty to act. Abandoning the assumed care can result in liability.
5. By Creation of Risk: One who creates a risk of harm to another (even accidentally) may have a duty to act to prevent or mitigate that harm.

Key Term: Omission A failure to act. An omission can constitute the actus reus of a crime only when the law imposes a legal duty to act and the defendant is capable of acting.

Worked Example 1.2

Swimmer is drowning 50 yards from shore. Bystander, an expert swimmer, watches from the beach but does nothing, even though a rescue attempt would pose no risk to Bystander. Swimmer drowns. Can Bystander be held criminally liable for Swimmer's death based on his omission?

Answer: No. Generally, there is no legal duty to rescue a stranger, even if the rescue could be performed easily and safely. Bystander had no relationship with Swimmer, was not contractually obligated to help, had not assumed care, and did not create the risk. Absent a legal duty, Bystander's failure to act, though perhaps morally blameworthy, does not satisfy the actus reus requirement for homicide.

Knowledge and Capability

Even where a legal duty exists, liability for an omission requires that the defendant knew the facts giving rise to the duty and was reasonably capable of performing the required act.

Possession as an Act

Possession of contraband (e.g., illegal drugs, unregistered firearms) can constitute the necessary criminal act.

Key Term: Possession Having control over an item. Possession can be actual (direct physical control) or constructive (the item is located in an area within the defendant's dominion and control).

For possession to be a criminal act:

1. Control: The defendant must exercise dominion and control over the prohibited item.
2. Duration: The possession must last for a period long enough for the defendant to have had an opportunity to terminate the possession.
3. Awareness: Generally, the defendant must be aware of their possession of the item, though they need not know it is illegal. (Some statutes may impose strict liability for possession, eliminating the awareness requirement).

Summary

Criminal liability generally requires a voluntary physical act (actus reus) by the defendant. Acts resulting from reflex, convulsion, or unconsciousness are typically considered involuntary. While there is generally no duty to act, an omission can satisfy the actus reus requirement if the defendant had a specific legal duty to act (arising from statute, contract, relationship status, voluntary assumption of care, or creation of risk), knew the facts giving rise to the duty, and was capable of acting. Possession can also constitute the actus reus, requiring control over the item for a sufficient period with awareness of the possession.

Key Point Checklist

This article has covered the following key knowledge points:

• Criminal liability generally requires a voluntary act (actus reus).
• Involuntary acts (reflex, convulsion, unconscious acts) generally do not satisfy the actus reus.
• An omission constitutes an actus reus only when there is a legal duty to act.
• Legal duties can arise from statute, contract, relationship, voluntary assumption of care, or creation of risk.
• A moral duty to act is insufficient for criminal liability based on omission.
• Liability for omission requires knowledge of the circumstances giving rise to the duty and the capability to act.
• Possession (actual or constructive) can be an actus reus if the defendant has control for a sufficient period and is generally aware of possessing the item.

Key Terms and Concepts

• Actus Reus
• Omission
• Possession