Actus Reus

One is a moral criticism. The argument is that there is some difference in the culpability of the last pair of would-be cop-killers, and, indeed, as much difference as there is between the first pair of prison bombers. If this is so, then our reason for categorizing all properties of actions into two large clumps disappears.

It is hard not to have considerable sympathy for this moral criticism. Nonetheless, perhaps an enriched diet of examples can tip one back toward the orthodox criminal law categorization of actions. Consider this one. Two defendants each commit an assault with intent to have intercourse with a female who they know is not consenting. Defendant one is indifferent to the fact, seeking intercourse whether the victim consents or not; defendant two only likes nonconsensual sex, so that if the victim consented he would cease his assault. If both defendants are sufficiently close in culpability as to be lumped together in the most serious grade of culpability, then the criminal law may well be correct to draw its culpability distinctions differently for the noncausal property of consent than for the causal property of penetration.

It is also not quite true that the only reason for the criminal law to draw the causal/noncausal property distinction is in order to grade culpability systematically. If these kinds of properties differ in the universality with which they apply to criminal actions, that is a fact worth marking in systematizing criminal law. Although it is controversial—as we shall explore momentarily—all actions prohibited by Anglo-American criminal code have causal properties, while this is not true of noncausal properties. This is a fact worth marking, possible only if one distinguishes the two kinds of properties.

The second criticism of the causal/noncausal property classification is that it is incomplete. The argument is that certain actions are not divisible into their causal or their noncausal properties; rather such actions are said to have a nature that is neither. Such crimes are often termed "conduct" crimes, of which theft, rape, attempt, breaking and entering, and driving under the influence of alcohol are supposed to be examples.

This is a difficult criticism to get a handle on, since it seems so obviously false. Still, the criticism is a very popular one among criminal law theorists (Williams, 1983; Buxton; Fletcher, 1978), and it even infects the Model Penal Code when that Code (inconsistently) inserts "nature" of an action as an element in addition to "results" and "circumstances" (MPC § 2.02; see Moore, 1993). So the criticism must at least be taken seriously enough to be explained away as a mistake.

None of the supposed examples of "conduct crimes" turn out to require an analysis different than the orthodox analysis of action in criminal law. Take breaking and entering, for example. The actus reus of breaking and entering is breaking and entering a building not your own. That the building entered is owned by someone else is a noncausal property of the action required—a "circumstance element," in the language of the Model Penal Code (MPC § 1.13(9)). A breaking occurs when a willed bodily movement causes a window to be broken, and an entering occurs when a willed bodily movement takes place in the circumstance that an outward threshold of a building is crossed. There is no need for a nature to breaking and entering, since the actus reus of that offense is fully analyzable in the orthodox way.

The same analysis is adequate for the other supposed examples of "conduct crimes." The actus reus of rape is satisfied when a willed bodily movement causes penetration in the circumstance where there is a lack of victim consent. The actus reus of theft is satisfied when a willed bodily movement causes an item to move in the circumstances that the item in question is owned by another who has not consented to its taking. The actus reus of attempted murder is satisfied when a willed bodily movement causes a state of near success in killing to exist, and so on.

There are two apparent reasons explaining the persistence of this "conduct crimes" criticism despite its manifest falsity. One is due to the directness of the causal links between willed bodily movements and results in conduct crimes. Usually the causal chain between certain willed bodily movements and penetration in rape, for example, is very short. The shortness of the chain leads some to think that there is no causal link here at all. Yet a short causal chain is still a causal chain. In addition, once in a great while the chain is not so short, as when the defendant inserts the penis of another into the female (Commonwealth v. Dusenberry). Such cases make plain what was true all along: There is a causal property built into the actus reus of rape and other "conduct crimes," so that no sui generis "nature" of rape needs to be added into the analysis of that actus reus.

The second reason explaining the confusion about conduct crimes lies in certain linguistic facts. When we say, "The actus reus of theft is the moving of a chattel and such action of moving involves the causing of movement by that chattel," it may seem that the causal analysis is bogus. It sounds like saying, "The action of moving something involves moving that thing," which is trivial. Unnoticed is that the English language uses "moving" and "movement" in two quite different ways. "The moving of the chattel" refers to an action, whereas "the movement of the chattel" refers to a different event, the event of the chattel moving. The latter event could be caused by an action of moving, or it might not. It is thus a significant assertion to say that "the willed bodily movement caused the movement of the chattel" and even to say, "The moving of the chattel caused the movement of the chattel." The causing of movement of a chattel is thus a causal property of moving a chattel, and no sui generis idea of "nature" need be added to analyze this action.

The third criticism of the orthodox division is that the causal/noncausal property distinction is wholly indeterminate. The potential indeterminancy appears when we consider how much to include as part of what is caused by an actor's willed bodily movements. Consider the actus reus of killing an on-duty policeman. The standard analysis is that the causing of a death of a human being is a causal property any act must possess to be an instance of this prohibited act-type, and that the victim of such killing is a police officer, and on duty, are noncausal properties any act must possess to be an instance of the prohibited act-type. Yet, why isn't causing the death of something the causal property, and the circumstance that the killed thing is a person or noncausal property? Alternatively, why isn't the causing of death of an on-duty policeman a causal property, with no noncausal property? Without some control on how we individuate properties—a notoriously tricky business (Armstrong)—it would seem that the orthodox classification scheme can be manipulated at will.

There is no dearth of suggestions as to how to deal with this problem. Some have suggested a temporal criterion: if the fact exists at the time of the willed bodily movement, then it is a noncausal property of that act. Others have urged a conventional criterion: what is "customarily regarded" as part of what is caused forms part of a causal property (Buxton, p. 31). Still others have urged a moral criterion: ask whether the intent/knowledge distinction marks any significant difference in culpability vis-à-vis the property in question, and if it does not, call the property noncausal (Moore, 1993). One might even urge a metaphysical criterion: include just so much of the state of affairs prohibited in the causal property as corresponds to true causal laws (see Armstrong). None of these suggested responses, however, has proved adequate to the objection.

Despite this unanswered criticism, the second general truth about actus reus retains wide acceptance: in addition to a willed bodily movement, the actus reus of all offenses includes the consequences of that movement and the circumstance in which that movement took place. These consequences and circumstances constitute the causal and the noncausal properties, respectively, that any willed bodily movement must possess if it is to satisfy the actus reus requirement of the criminal law.