Actus Reus

Critics of the classic analysis of actus reus are legion. Such critics attack all four aspects of the voluntary act principle, sometimes construing it as a creature of legal doctrine and other times taking it to be a general metaphysical truth about human actions. First, it is urged, there are criminal prohibitions of states and not only of events. In Samuel Butler's fictional Erewhon one could be punished for having tuberculosis, but even in Anglo-American criminal codes one can be punished for vagrancy, possession of various items (drugs, firearms, burglary tools, etc.), being in a vehicle where marijuana is smoked, and so on.

It is sometimes said that crimes of status are compatible with the voluntary act principle because acts may "consist of a state of affairs, rather than an event" (Gross, p. 60). This, however, is to obliterate the voluntary act requirement. Voluntary acts are essentially events and if crimes of status truly exist they contradict the voluntary act principle. Better is the response of the late Herbert Packer, who noted that crimes of status "are in fact very much on the way out" (Packer, p. 78). Not only are such laws rarely enacted today, but in America a number of constitutional infirmities are regularly found to afflict such laws so that even where they do remain on the books they are not valid (Robinson v. California).

An exception to this last observation must be made for possession crimes, which are both numerous and constitutionally valid. Such crimes seemingly prohibit the state of possessing something (weapons, drugs, etc.) and thus seem to be incompatible with the voluntary act principle. Yet possession has become a term of art in Anglo-American criminal law. Although in ordinary English and in the law of property one might easily be said to possess something simply by being in the state of having it on one's person, criminal law requires more. "Possession" is defined in criminal law so that either an act of acquiring possession or an omission to rid oneself of possession are prerequisites to liability (Williams, 1961; Model Penal Code, § 2.01(4)). With "possession" so defined, possession crimes present no counter-examples to the voluntary act principle, or at least none greater than that presented by omissions generally (which we shall shortly discuss).

A second basis for denying that the voluntary act principle is part of the actus reus requirement stems from the supposed existence of criminal actions without any bodily movements on the part of the "actor." Sometimes this objection is cast as an observation about Anglo-American criminal law: certain crimes punish culpable mental acts alone without any execution into bodily movement. More often this objection is cast as a metaphysical observation about action: some actions can be done without any bodily movement.

The legal branch of the objection would be cogent if Anglo-American criminal law still punished thoughts alone, as in the ancient form of treason constituted by the mere "compassing the death of the king" (Williams, 1961; Fletcher, 1978). Yet modern statutes require execution of the most evil thought in bodily movement. This is true not only of treason, but also of attempt, solicitation, and conspiracy as well. Unlike the Romans, we have no crimes consisting only of mental events like dreaming of the death of the emperor (Scholz).

The metaphysical branch of the objection is more complicated. The objection is that one can literally do actions like killing without lifting a finger (Fletcher, 1995; Corrado; Annas; Brand). There are three sorts of examples here: (1) the actor ("A") pushes the victim ("V") into the water, and then stands still while V drowns; (2) A is attached to a device that will kill V if, but only if, A can stand on his head motionless for ten minutes, which A does, causing V's death; (3) A is driving when suddenly his old enemy, V, darts in front of his car, and A rather than swerving, remains motionless while his car runs over V, killing him.

In fact none of these sorts of cases present examples where A has killed V without a willed bodily movement by A. About (1), A's pushing V into the water is a voluntary act that caused V's death so that A did kill V, but not without moving his body. About (2), A again did kill V, but he again moved his body to do so. The trick is to see that A's activating the muscles needed to remain motionless are bodily movements too. For difficult routines where the "agent's body is about to be made to move by outside forces," to keep one's exterior body from moving by activating the appropriate muscles is to engage in willed bodily movement in the sense intended by the voluntary act principle (Vermazen, p. 95; see also Holmes; Moore, 1993, 1994). About (3), A does not kill V with his car. A will doubtlessly be liable for V's death, but not because A killed V; rather, A omitted to save V when A was duty-bound to do so because A's earlier acts of driving put V in danger (Moore, 1994). None of these examples disprove the voluntary act principle by producing instances of "motionless killings."

A third objection to the voluntary act principle stems from that principle's reliance on willings to mark the line between voluntary and involuntary bodily movements. The objection is that there are many voluntary actions where there is no datable mental state of willing. While this objection once had many adherents in both law (Hart) and philosophy (Ryle), more recent analyses have sustained the need for some state like willing, volition, endeavoring, intent to move, and so forth, to mark off voluntary action from mere involuntary movement (Moore, 1993, 1994; Bratman).

A fourth objection to the voluntary act principle disagrees with that principle's fourth thesis. Such an objection denies that the death I cause by shooting another is no proper part of my act. On this view my killing, my shooting, my pulling of the trigger, and my moving my trigger finger, are each distinct particular acts I did, not just four different descriptions of one act I did. On this view my act of killing is distinct from my act of moving my trigger finger, even though I did the former by doing the latter. The objection concludes that acts like killing others do not have at their core willed bodily movements or anything else. A killing is a killing, a burning is a burning, but they need share no feature universal to all actions, as is asserted to be the case by the voluntary act principle.

While there is a surprising amount to be said in favor of this objection (Goldman, 1970, 1994), common sense supports the voluntary act principle. When I move my trigger finger, when I move it slowly, when I move it smoothly, when I pull the trigger by moving it, and so on, I am doing one act, not as many acts as there are descriptions of it (Moore, 1993). Such a chain of descriptions of but a single act leaves open the possibility asserted to be true by the voluntary act principle: all actions are essentially willed bodily movements.

We have thus far deferred any discussion of omissions because they present the most serious objection to the view that the actus reus of all offenses includes a voluntary act. The objection also is a complicated one because those who voice it do not even agree what omissions are. The best conceptualization of omissions is that they are simply absent actions. An omission by actor A to save V from drowning is just the absence of any act by A of saving V. Such omission is not a ghostly act of saving or of anything else; rather, it is the absence of any such type of act. Such omissions are thus a kind of action no more than nonexistent elephants are a kind of elephant (Moore, 1993).

The voluntary act principle states that all actions are in essence willed bodily movements. An omission to save V at some time t thus might consist in A not moving his body at t. Yet motionless omitters are rare. Usually one who omits to save is busy doing something else at t—dancing a jig, buying a dishwasher, and so forth. What makes such persons omitters to save at time t is that none of their willed bodily movements at t has the causal property, saving-of-V's-life. One thus does not want to picture omitters as motionless statues because they need not be such (and they typically are not such).

Once we are clear as to what omissions are, we can see that Anglo-American law undeniably criminalizes some omissions. If we are the parent of a child who needs rescue, if we have undertaken such rescue even if we are not related to the child, if we have either innocently or culpably caused the condition of peril to the child, or if some statute specifically imposes a duty on us to rescue the child, we are under a positive legal duty to prevent the child's death. Despite numerous efforts to reconcile this liability with the voluntary act principle (Hughes; Gross; Epstein; Mack), the simple truth is that they are not reconcilable (Moore, 1993). Insofar as Anglo-American law criminalizes true omissions, it creates an exception to the principle that a willed bodily movement constitutes the essence of the actus reus of all criminal offenses. The voluntary act principle remains of great importance, however, because omission liability is rare in Anglo-American law and thus almost all the time it remains true that the actus reus requirement can be satisfied only by a willed bodily movement.

For the exceptional cases of omission liability we do need an account paralleling the voluntary act principle's account for act liability. If the essence of criminal omissions is not willed bodily movements, what might it be? Some have suggested that the essence of omissions is also to be found in willing. The analysis is that omissions are the willed absence of bodily movements (Fletcher, 1994). In this way one keeps as close a parallel to the voluntary act principle as possible. Yet willed absences of bodily movements is too narrow an analysis of omissions generically and it is even too narrow as an analysis of omissions made criminal by Anglo-American codes. If I negligently do not notice the child in distress, I negligently omit to save her. This is an omission, and if I am the child's parent, a criminal omission, yet I at no point willed the nonmovement of my limbs to refrain from saving her (Bentham).

The preferable line to take here is to see that the omissions we criminalize all have as their common element a capacity of the omitter not to have omitted. If I am to be held criminally liable for omitting to save my child, I must at a minimum have had the capacity to move my limbs in the relevant way—I was not asleep, in the middle of an epileptic seizure, under hypnosis, paralyzed, and so on, at the relevant times. Then I can be said to have voluntarily omitted to rescue the child.

This completes one-half of the analysis of actus reus in the criminal law. At a minimum, to satisfy the actus reus requirement of some offense one must satisfy the voluntary act principle (or in exceptional cases, the voluntary omission principle). We now need to see what else must be true in order to satisfy the actus reus requirement for criminal liability.