Criminal Law
When can an actus reus be a failure?
Actus reus generally involves three elements: (1) a voluntary act or failure to perform an act, (2) that causes, (3) a harm condemned under a criminal statute (Chapter 4: Actus Reus, p. 39).The general basis for imposing liability in criminal law is that the defendant must be proved to have committed a guilty act whilst having a guilty state of mind.
As a basic rule there can be no criminal liability for a failure to act (omission), unless at the time of the failure the defendant was under a legal duty to take positive action (TUFAL, p. 2).
A positive duty to act arises under the following constellations:
(a) Duty arising from statute: Examples are filing tax returns, professionals reporting child abuse or registering firearms.
(b) Duty arising from contract: Examples would be the babysitter, the doctor or the lifeguard.
(c) Duty arising from status relationship: Here there are only three examples: Parent to child, spouse to spouse, and employer to employee.
(d) Reliance: Courts have in recent years moved to recognize a common law duty of care where there is a relationship of reliance between the defendant and the victim (TUFAL, p. 3). An example would be that a defendant voluntarily and deliberately starts rescuing a victim. In that case, he would assume a positive duty to act for the general welfare and that person may be liable for omissions which prove fatal (TUFAL ibid).
(e) Duty due to defendant's prior conduct: Here the defendant creates a peril that causes harm, and subsequently becomes aware of the danger. In a constellation like this he has a legal duty to act reasonably to avert that danger.
2. When examining actus reus in addition to the conduct element we must bear in mind (A) Any required circumstances (B) required consequences and (C) causation issues. Explain and give examples for each separate.
(A) Any required circumstances
In a criminal case, where a defendant can prove by a preponderance of the evidence that any of the circumstances that constitute...
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