"Actus reus"
refers to the physical aspect of the criminal activity. The term
generally includes (1) a voluntary act (2) that causes
(3) social harm.
[A] General Rule
– Subject
to limited exceptions, a person is not guilty of a crime unless his
conduct includes a voluntary act. Few statutes defining criminal
offenses expressly provide for this requirement but courts usually treat it as
an implicit element of criminal statutes.
[B] Definitions
"Act" – An
act involves physical behavior. It does not include the mental
processes of planning or thinking about the physical act that gives rise to the
criminal activity (such is the domain of mens rea).
"Voluntary" –
In
the context of actus reus, "voluntary" may be defined simply
as any volitional movement. Habitual conduct – even if the
defendant is unaware of what he is doing at the time – may still be deemed
voluntary. Acts deemed involuntary may include: spasms,
seizures, and bodily movements while unconscious or asleep.
[C] Burden of
Proof – Although a defendant may raise as a defense that his
conduct was not voluntary, the voluntariness of an act proscribed by criminal
law is in fact an element of the crime, and as such, the
prosecution bears the burden of proving such fact.
The prosecution does
not need to show, however, that every act was voluntary in order to
establish culpability. It is sufficient that the defendant’s conduct –
which is the actual and proximate cause of the social harm – included a
voluntary act.
[D]
Constitutional Law – A state may not dispense with the
criminal law requirement of an actus reus. That is, the government may
not punish a person for his thoughts alone, or for his mere propensity to
commit crimes. The special rule of omissions aside, some conduct
by the defendant is constitutionally required.
[1] Robinson
v. California [370 U.S. 660 (1962)] – Robinson was
convicted under a California statute that made it an offense for a person to
"be addicted to the use of narcotics." The Supreme Court
struck down the statute on Eighth and Fourteenth Amendment grounds.
Essentially, the Court
held that, although a legislature may use criminal sanctions against specific
acts associated with narcotics addiction, e.g., the unauthorized manufacture,
sale, purchase, or possession of narcotics, it could not criminalize the
status of being an addict, which the Court analogized to other
illnesses.
[2] Powell v.
Texas [392
U.S. 514 (1968)] – Powell was charged with violating a Texas
statute that prohibited drunkenness in a public place. Powell argued that he
was a chronic alcoholic and was thus unable to prevent appearing drunk in
public and sought relief under the reasoning of Robinson. The
Court upheld his conviction, distinguishing the case from Robinson on
the ground that Powell was being punished for the act of public
drunkenness and not for his status as a chronic alcoholic.
[E] Model Penal
Code – Similar to the common law, MPC § 2.01 requires that
criminal conduct include a voluntary act. It does not define the term
"voluntary," but Comments list bodily movements that are involuntary:
reflexes, convulsions, conduct during unconsciousness, sleep, or due to
hypnosis, as well as any conduct that "is not a product of the effort or
determination of the defendant, either conscious or habitual." Excluded
from the requirement that the act be voluntary are offenses that constitute a "violation"
[§2.05], defined as an offense for which the maximum penalty is a fine or civil
penalty.
[A] Common Law – Subject
to a few exceptions, a person has no legal duty to act in order
to prevent harm to another. The criminal law distinguishes between
an act that affirmatively causes harm, and the failure of a bystander to
take measures to prevent harm.
[B] Common Law
Exceptions to the "No Duty to Act" Rule
[1] Duty Based on
Status Relationship – One may have a common law duty to
act to prevent harm to another if he stands in a special status relationship to
the person in peril. Such a relationship is usually founded on the
dependence of one party to the other – e.g., a parent to his minor child – or
on their interdependence – e.g., spouses.
[2] Duty Based on
Contractual Obligation – A duty to act may be created by
implied or express contract. E.g., a person who undertakes the care of a
mentally or physically disabled person and fails to do so may be found
criminally liable based on omission for his ward’s injury or death.
[3] Duty Based on
Creation of a Risk – A person who harms another or places a
person in jeopardy of harm, or who damages property, even if unintentionally,
has a common law duty to render assistance. E.g.,
one who accidentally starts a house fire may be convicted of arson if he
fails to extinguish the fire or take other steps to prevent or mitigate the
damage. As another example, there is a split of authority regarding whether
one who justifiably shoots an aggressor in self-defense has a subsequent
duty to obtain medical attention for the wounded aggressor.
[4] Duty Based on
Voluntary Assistance – One who voluntarily renders
assistance to another already in danger has a duty to continue to provide aid,
at least if the subsequent omission would put the victim in a worse position
than if the defendant had not commenced the assistance at all.
[B] Statutory
Duty to Act – Some duties are statutorily imposed,
e.g., a driver involved in an accident must stop his car at the scene; parents
must provide food and shelter to their minor children. A few states have
enacted so-called "Bad Samaritan" laws, which make it
an offense (usually a misdemeanor) for a person to fail to come to the aid of a
person in need under specified circumstances.
[C] Model Penal
Code – The Model Penal Code is consistent with the common
law regarding omissions. Liability based on an omission may be found in
two circumstances: (1) if the law defining the offense provides for it; or (2)
if the duty to act is "otherwise imposed by law." [MPC § 2.01(3)(b)] The
latter category incorporates duties arising under civil law, such as torts or
contract law.
[A] Elements of
Social Harm – The social harm of an offense, as
defined by statute or at common law, may consist of wrongful conduct,
wrongful results, or both. Moreover, the offense will contain so-called
"attendant circumstance" elements.
[1]
"Conduct" Elements (or "Conduct" Crimes) – Some
crimes establish social harm in terms of conduct, irrespective of any harmful
results, e.g., driving under the influence of alcohol.
[2]
"Result" Elements (or "Result" Crimes) – An
offense may be defined in terms of a prohibited result. For example,
murder is a "result" crime, because the social harm is the death of
another human being, irrespective of the nature of the conduct that resulted in
such death (e.g., whether the death occurred by shooting, stabbing, or
poisoning).
[3] Combined
"Result" and "Conduct" Elements – Some
offenses contain both "conduct" and "result" elements. For
example, a statute may define first-degree murder as the killing of another
human (the result) by means of a destructive device or explosive (the
conduct).
[4] Attendant
Circumstances – An "attendance circumstance"
is a fact or condition that must be present at the time the
defendant engages in the prohibited conduct and/or causes the prohibited result
that constitutes the social harm of the offense. Often an attendant
circumstance is an element of the offense, e.g., the crime of burglary – the
breaking and entering of the dwelling house of another at nighttime – contains
an elemental attendant circumstance that the crime must occur at night.
[B] Constitutional
Limits – Various constitutional provisions limit the extent
to which a legislature may proscribe "social harm". For example, the First
Amendment bars a state from criminalizing most forms of speech.
Even where some social harm may occur – such as some persons may find a given
form of speech offensive – the law deems that the integrity of constitutional
rights outweighs the society’s interest in preventing the harm. [See,
e.g., Texas v. Johnson, 491
U.S. 397 (1989) (pertaining to defacing the American
flag)].
"Privacy"
rights, such as reproductive choice and sexual conduct of
consenting adults, have also been protected from state attempts to criminalize
such conduct. [See, e.g., Roe v. Wade, 410
U.S. 113 (1973); Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505
U.S. 833, 836 (1992); Griswold v. Connecticut,
381
U.S. 479 (1965); Lawrence v. Texas, 156
L. Ed. 2d 508 (2003)]
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