Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions of Canada, Australia, New Zealand, England, Ireland and the United States. In the United States, some crimes also require proof of an attendant circumstance.

Concepts

The terms actus reus and mens rea developed in English Law, are derived from the principle stated by Edward Coke, namely, actus non facit reum nisi mens sit rea,^[1] which means: "an act does not make a person guilty unless (their) mind is also guilty"; hence, the general test of guilt is one that requires proof of fault, culpability or blameworthiness both in behaviour and mind.

Act

In order for an actus reus to be committed there has to have been an act. Various common law jurisdictions define act differently but generally, an act is a "bodily movement whether voluntary or involuntary."^[2] In Robinson v. California, 370 U.S. 660 (1962), the U.S. Supreme Court ruled that a California law making it illegal to be a drug addict was unconstitutional because the mere status of being a drug addict was not an act and thus not criminal.

An act can consist of commission, omission or possession.

Omission

See main article omission (criminal)

Omission involves a failure to engage in a necessary bodily movement resulting in injury. As with commission acts, omission acts can be reasoned causally using the but for approach. But for not having acted, the injury would not have occurred. The Model Penal Code specifically outlines specifications for criminal omissions:^[3]

the omission is expressly made sufficient by the law defining the offense; or
a duty to perform the omitted act is otherwise imposed by law.

So if legislation specifically criminalizes an omission through statute; or a duty that would normally be expected was omitted and caused injury, an actus reus has occurred.

Possession

Possession holds a special place in that it has been criminalized but under common law does not constitute an act.^[4] Some countries like the United States have made avoided the common law conclusion in Dugdale by legally defining possession as a voluntary act. As a voluntary act, it fulfills the requirements to establish actus reus.^[5]^[6]

Voluntariness

In this respect, the role of automatism is highly relevant in providing a positive explanation of the need to demonstrate the voluntariness of the behaviour for it to found liability. This is supported by the English case Hill v Baxter, which held that the act must be voluntary for the defendant to be guilty. Voluntariness is one of the key points in establishing if an actus reus has been committed. A person suffering from a seizure who stabs somebody trying to help them has not committed an actus reus because it was involuntary act. Definitions of a voluntary or involuntary act have varied over time but legal scholars have over time developed tests. Oliver Wendell Holmes, in his 1881 book The Common Law explained that "A spasm is not an act. The contraction of the muscles must be willed." Indeed, the Model Penal Code, which is utilized by many U.S. states in constructing their penal codes, specifically describes what are considered involuntary acts and thus not criminal:

a reflex or convulsion;
a bodily movement during unconsciousness or sleep;
conduct during hypnosis or resulting from hypnotic suggestion;
a bodily movement that otherwise is not a product of the effort or the determination of the actor, either conscious or habitual.

Voluntariness does not exclude omission because it is implicit in omission that the actor voluntarily chose to not perform a bodily movement and thus caused an injury. The purposeful, reckless, or negligent absence of an action is considered a voluntary action and completes the voluntary requirement for actus reus.^[7]^[8]

References

Notes

^ Coke, chapter 1, folio 10
^ Model Penal Code § 1.13(2)
^ Model Penal Code § 2.01(3)
^ Regina v. Dugdale, 1 El. & Bl. 435, 439 (1853) (ruled that the mere possession of indecent images with the intent to publish them was not a crime as possession did not constitute an act)
^ N.Y. Penal Law § 15.00(2)
^ Model Penal Code § 2.01(4)
^ Commonwealth v. Pestinkas, 421 Pa. Super. 371 (1992)
^ People v. Steinberg, 79 N.Y.2d 673 (1992)

Sources

Coke, Edward. Institutes, Part III.
Dubber, Markus D. (2002). Criminal Law: Model Penal Code. Foundation Press. ISBN 1587781786.

External links

Stanford Encyclopedia of Philosophy entry on Theories of Criminal Law

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Actus reus: Definition from Answers.com

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