YES Actus Reus, Omissions, and General Policy

Retributivism

Retaliation - deservingness of the Defendant to be punished (eye for an eye, proportionality)

Utilitarianism

A forward-looking moral theory aimed at maximizing social welfare.

• Deterrence: scare groups or individuals to prevent future crimes

• Incapacitation: protect society from an individual, can be racist

• Rehabilitation: Reintegrating offenders into society. Address the root causes of criminal behavior.

Dudley & Stephens

Homicide. A person may not sacrifice another person’s life to save his own, except for self-defense.

Vengeance

Intentionally inflict pain on Defendant because we hate them. We want revenge.

Bullying in Massachusetts Crime

1) willfully and maliciously engages in a knowing pattern of conduct which

2) which seriously alarms [a specific] person and

3) would cause a reasonable person to suffer substantial emotional distress

(Too broad. Violates legality principle.)

Legality Principle

Three elements before Defendant is charged with offense:

1. Legislature defines law, not courts

2. Law operates prospectively. Retroactive laws are not allowed.

3. Law must be specific, not vague.

What’s Actus Reus?

• Actus reus = voluntary physical act

• Voluntary = mind engaged with physical body movements

• Status alone NOT act (e.g., homeless, addict, mentally ill) (Jones)

Actus reus can happen before the harm — but not if nature does it for you.

• Decina → Knowing seizure disorder + choosing to drive = voluntary act occurs before harm

• Low / Eaton → Voluntary possession of drugs before custody satisfies actus reus

• 5 Star → Natural forces (storm killing fish) = no voluntary act

• Patty Hearst → Coercion/brainwashing IS NOT involuntary; robbery was a voluntary act

Dee is standing outside a grocery store. Someone walks up to her, puts a gun to her head, and tells her to go in and steal a loaf of bread form or else she’ll get shot. She follows his orders. Did Dee commit a voluntary act?

Yes, but duress could be a defense

Under MPC 2.01 and Common Law, what’s NOT a voluntary act (No Actus Reus)?

No actus reus if the body moves without conscious control.

1. Reflex and convulsion (Newton: Police shot D; D shot back in reflex)

2. Unconsciousness (NOT self-induced) (Newton: Police officer shot D and D went unconscious, shooting officer back. D not culpable).

3. Sleeping (Cogdon: Mother killed daughter while asleep. Mother acquitted).

4. Hypnotism

5. Bodily movement not caused by conscious effort or choice (Martin: D is intoxicated at home. Cops take him to the highway, where D uses disruptive behavior. D didn’t voluntarily appear in public).

Actus Reus: Omissions

Physically capable + duty + failure to act = omission = actus reus

A failure to to do something which you are physically capable of (Lion King hypo). You CAN fail to act UNLESS you have a duty:

1. Special Relationship
   
   Parent → Child

   • Jones – baby left in car → duty

   • Cardwell / Carroll – mother failed to stop abuse → duty
     
     No special relationship

• Miranda / Beardsley – boyfriend ≠ parent → no duty
  

1. Contract
   - Nursing home
   - Baby sitting
   - Child care
   

2. Statutory Duty
   - Pope: In limited states, Good Samaritan Statute oblige you to render aid if you’re a professional).
   - FL: Only render aid when witnessing sexual battery.
   

3. Creation of Risk/Peril
   - Levesque: Starting a fire and failing to call for help. 6 firefighters die. Omission established.
   - Lisa: D sold meth to girlfriend. Girlfriend overdosed. D didn’t call police. NO omission.
   

4. Voluntary Assumption of Care
   - Preventing others from providing aid
   - MN, VT: Criminal offense if you REFUSE to render aid. (Defense = it would cause more harm).
   - Actively covering up a crime.
   

5. MPC: Failure to terminate illegal possession of property

• Duty to terminate possession on your person once aware

• Bradshaw: 77 lbs of drugs hidden in truck brought over the border by truck. Holding: Weird “one off” that is inconsistent with MPC, but court held “possession of illegal drugs.”

6. MPC: Duty established through tort law

What is “Physically Capable” under Omission?

Cardwell: The physically capable person must exercise efforts reasonably calculated to achieve success

What’s still a voluntary act?

Acts caused by traumas, anxieties, and habit - avoids the floodgates of Defendants negating Actus Reus.

True or false: Almost all acts are voluntary. If yes, why?

True. By making all acts voluntary, we let truly innocent people off the hook using mens rea without opening the floodgates.

Main things to check for to Determine Materiality

1. Is it an element of the offense that relates directly to the harm or evil the legislature sought to prevent?

1.     Look at language, legislative history, penalty, gravity, policy, SL profile, and dangerous instrumentality.

2.     Consult against public welfare offenses.

Is it a low stigma regulatory offense?

With immaterial elements, do you need mens rea?

No. Strict liability.

With material benefits, do you need mens rea?

Yes

Tick tack offenses (e.g. garbage code violations, regulatory offenses, etc) are...

Immaterial and strict liability