ACTUS REUS IN CRIMINAL LAW




General Principle
"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.
Voluntary Act
[A] General RuleSubject 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.
Omissions
[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.
Social Harm
[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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