By: David Gray*
Abstract
The actus reus requirement is central to the criminal law. We only punish people for what they do. We do not punish evil thoughts. Neither do we punish people for what they do not do because not acting is, well, not acting. We punish acts but not omissions. Except when we do. We willingly punish not actions that are not performed (or should that be “actions that are not performed,” or, perhaps, “not actions that are performed,”—oh my, this is confusing!) by persons laboring under legal duties of various kinds. But why? Are these sotto voce admissions that the act-omission distinction is mere fiction? Or does legal duty, by some miracle of moral alchemy, make something out of nothing? The traditional answer, it seems, is to tuck the whole thing away in a box marked “Pandora.” Best not to open it. Do nothing (but isn’t that an . . . oh dear).
It is time to face the music. The act-omission distinction is grounded in nothing more than a conventional semantic preference. All “acts” can be described accurately and completely as “omissions,” and vice-versa. Don’t believe me? Check-out Part II. Semantic conventions cannot support a general prohibition on punishing omissions. Just as some “acts” merit criminal punishment and some do not, so, too, “omissions.” Drawing these distinctions is a familiar task. When it comes to determining criminal responsibility for “acts,” we usually focus on considerations of actus reus, mens rea, and cause. These same tools work perfectly well when determining criminal responsibility for “omissions.” No ontological fictions necessary. But the process reveals something interesting. It turns out that cases involving “omissions” often present practical challenges for proving mens rea with respect to both acts and results. One way to overcome these challenges is by appeal to, wait for it . . . legal duties, which impose upon agents epistemic duties and provide juries with grounds for presuming knowledge. This insight not only solves persistent conceptual problems with common law treatments of omissions liability, it also reveals interesting and reassuring internal connections to other areas of the criminal law, including strict liability.
In his account of the singular and interesting people among whom he was thrown, it will be observed that he chiefly treats of their more obvious peculiarities; and, in describing their customs, refrains in most cases from entering into explanations concerning their origin and purposes. As writers of travels among barbarous communities are generally very diffuse on the subjects, he deems it right to advert to what may be considered a culpable omission. No one can be more sensible than the author of his deficiencies in this and many other aspects; but when the very peculiar circumstances in which he was placed are understood, he feels assured that all these omissions will be excused.
*Jacob A. France Professor of Law, University of Maryland School of Law. I am in debt to those who read and commented on drafts of this Article at the Criminal Justice Roundtable, Vanderbilt Law School’s interdisciplinary legal theory workshop, Georgetown Law Center’s Legal Theory Seminar, the Criminal Theory Colloquium at New York University School of Law, the Southeastern Association of Law Schools, Law and Society, and the University of Maryland Legal Theory Workshop. I am particularly grateful to Stephanos Bibas, Josh Bowers, Darryl Brown, Michal Cahill, Danielle Citron, Anne Coughlin, Kimberly Ferzan, Ben Greenwald, Deborah Hellman, David Janos, Lee Kovarsky, Dan Markel, Sandra Mayson, Jenny Roberts, Maneka Sinha, Christopher Slobogin, Max Stearns, Kate Weisburd, and Ronald Wright for their insight, comments, and engagement as well as the kindness of things unsaid, which speak equally well of their character and collegiality. Thanks most of all to Aaron Parks for the primary inspiration for this Article.