Actus Reus


§ 9.01 Actus Reus: General Principles

          [A] Definition


There is no single accepted meaning for this term.  We might focus on the legal terms of art “voluntary act” and “social harm” instead.


          [B] Punishing Thoughts: Why Not?


The distinction is made between morally bad thoughts, which are merely morally censurable, as opposed to immoral acts, which can also be illegal acts, which are, of course, punishable.


It is argued that we would not want to punish people for thinking of criminal plans.


1.     You can’t distinguish between real plans and daydreams.

2.     You can’t deter thoughts.

3.     Punishing thoughts restricts individual freedom.

1.     Retributivists believe it is immoral to punish people for intentions that they haven’t acted upon.  They believe everyone should have the opportunity to choose not to do the wrong they are thinking of doing.


§ 9.02 Voluntary Act: General Principles

          [A] General Rule


Most courts recognize the voluntary act requirement, even if it’s not in the penal code.


          [B] The “Act”


An act is any bodily motion.  It involves physical behavior, though not necessarily visible behavior.


1.     It is possible to have a bodily movement without an “act” happening, such as in the case when someone grabs your arm and swings it around.

2.     The result of a bodily motion is not an “act”.

3.     Some courts say that “voluntariness” is implicit in the word “act”.


          [C] “Voluntary”


This term is used in two different ways.


                   [1] Broad Meaning: In the Context of Defenses


Involuntary can mean “under duress” or “as the result of a mental disorder”.


                   [2] Narrow Meaning: In the Context of the Actus Reus




                   [3] “Voluntariness”: At the Edges

                             [a] Hypnotism

                             [b] Multiple Personality (or Disassociative Identity) Disorder

          [D] Voluntary Act Requirement: Rationale

          [E] Burden of Proof

          [F] The Issue of “Time-Framing”

§ 9.03 Voluntary Act: Supposed (But Not Real) Exceptions to the Requirement

          [A] Poorly Drafted Statutes

          [B] Status Offenses

          [C] Crimes of Possession

§ 9.04 Voluntary Act: Constitutional Law

§ 9.05 Voluntary Act: Model Penal Code

          [A] General Principles

          [B] Exception to the Rule

§ 9.06 Omissions: General Principles

          [A] General Rule

          [B] Criticisms of the General Rule

          [C] Defense of the General Rule

§ 9.07 Omissions: Exceptions to the No-Liability Rule

          [A] Common Law Duty to Act: “Commission by Omission”

                   [1] Overview

                   [2] When There Is a Duty to Act

                             [a] Status Relationship

                             [b] Contractual Obligation

                             [c] Omissions Following an Act

                                      [i]  Creation of a Risk

                                      [ii] Voluntary Assistance

          [B] Statutory Duty (Including “Bad Samaritan” Laws)

§ 9.08 Omissions: Model Penal Code

§ 9.09 Medical “Omissions”: A Special Problem

          [A] Act or Omission?

          [B] Analysis as an Omission

          [C] The Barber Approach

          [D] Reflections Regarding Barber

§ 9.10 Social Harm: General Principles

          [A] Overview

          [B] Definition of “Social Harm”

          [C] Finding the “Social Harm” Element in a Criminal Statute

          [D] Dividing “Social Harm” Into Sub-Elements

                   [1] “Conduct” Elements (or “Conduct” Crimes)

                   [2] “Result” Elements (or “Result” Crimes)

                   [3] Attendant Circumstances

§ 9.11 Social Harm: Constitutional Limits


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