clint4law wrote:So my closed book Crim test is on Monday. Can someone explain how an omission works to sub in for the actus reus? I understand the exceptions (status, contractual, voluntarily assume care, etc.) but how does it play out? Do you still need to have the mens rea for that omission?
I just outlined this section/pre-wrote answer.
Here is what I have:
Without a statutory or common law duty, a person has no criminal law duty to act to prevent harm to another, even if the person imperiled may lose her life in the absence of assistance. However in the circumstances laid out below, liability for a criminal offense may be predicated on an omission, rather than voluntary act, assuming she was physically capable of performing the act. If the remaining elements of the crime care proven (including the mens rea) the defendant may be convicted of the crime.
1. Status relationship: A person may have a common law duty to act to prevent harm to another person if she stands in a special relationship to the person in peril. This includes parents to minor children, married couples, masters to servants.
2. A duty to act may also be created by an implied or express contract. For example, one who breaches an agreement to house, feed, and provide medical care or to care for one’s disabled parent, babysitter, or doctor
3. A person who creates the risk—or wrongfully places a person or her property in jeopardy of harm, has a law duty to aid the injured or endangered party. If she breaches her duty, she may be criminally responsible for the harm.
4. One who voluntarily commences assistances to another in jeopardy has a duty to continue to provide aid if a subsequent omission puts the victim in a worse position than if the actor had not helped.
5. Also one my have a statutory duty to act.
A jurisdiction may also follow the MPC's approach to a criminal violation by omissions (although it does not differ significantly from the common law). §2.01(1): A person is not guilty of an offense unless his conduct includes a voluntary act or the omission to perform an act of which he is physically capable. Liability based on omission is permitted when: (1) the law defining the offense provides for it (§220.1(3)) or (2) the duty is otherwise imposed by law (2.01(3)(b)). This includes civil affirmative duties to act (i.e., under contract or tort law)