ACTUS REUS (/ˈæktəs ˈreɪəs/ ), sometimes called the external
element or the objective element of a crime, is the
* 1 Etymology
* 2 Act
* 2.1 Omission * 2.2 Possession
* 3 Voluntariness
* 3.1 Reflex or convulsion * 3.2 Unconsciousness or sleep * 3.3 Hypnosis * 3.4 Omission
* 4 See also
* 5 References
* 5.1 Notes * 5.2 Sources
* 6 External links
The terms actus reus and mens rea developed in English Law are
derived from the principle stated by
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
Robinson v. California , 370 U.S. 660 (1962), the
U.S. Supreme Court
An act can consist of commission , omission or possession .
Main article: Omission (criminal law)
Omission involves a failure to engage in a necessary bodily movement resulting in injury. As with commission acts, omission acts can be reasoned casually 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:
* 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 (for example one must file a tax return).
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.
In English law, there is no Good Samaritan rule therefore one cannot be criminally liable for an omission unless a duty of care is owed. An omission can be criminal if there is a statute that requires one to act. Situations that impose a duty of care and require one to act include when one is: under a contract (R v Pittwood), has assumed care (Stone and Dobinson), has created a dangerous situation (Miller) or holds an official position within society (Dytham).
Possession holds a special place in that it has been criminalized but under common law does not constitute an act. Some countries like the United States have avoided the common law conclusion in Regina v. Dugdale by legally defining possession as a voluntary act. As a voluntary act, it fulfills the requirements to establish actus reus.
For conduct to constitute an actus reus, it must be engaged in voluntarily. Few sources enumerate the entirety of what constitutes voluntary and involuntary conduct. Oliver Wendell Holmes , in his 1881 book The Common Law , disputed whether such a thing as an involuntary act exists: " spasm is not an act. The contraction of the muscles must be willed." A few sources, such as the Model Penal Code, provide a more thorough treatment of involuntary conduct:
* 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.
REFLEX OR CONVULSION
Generally, if, during an uncontrollable flailing caused by a sudden
paroxysmal episode, such as that produced by an epileptic seizure, a
person strikes another, that person will not be criminally liable for
the injuries sustained by the other person. However, if prior to the
assault on another, the seized individual was engaging in conduct that
he knew to be dangerous given a previous history of seizures, then he
is culpable for any injuries resulting from the seizure. For example,
in People v. Decina, 2 N.Y.2d 133 (1956), the defendant, Emil Decina,
appealed a conviction under § 1053-a of the
New York Penal Law
UNCONSCIOUSNESS OR SLEEP
In Hill v Baxter , Kilmuir, LC, articulated the necessity of eliminating automatism, defined as "the existence in any person of behaviour of which he is unaware and over which he has no conscious control," in proving the voluntariness of the actus reus:
ormally the presumption of mental capacity is sufficient to prove that he acted consciously and voluntarily and the prosecution need go no further. But, if after considering evidence properly left them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism...they should acquit because the necessary mens rea—if indeed the actus reus—has not been proved beyond a reasonable doubt.
Thus, a person suffering from somnambulism , a fugue , a metabolic disorder , epilepsy, or other convulsive or reflexive disorder, who kills another, steals another's property, or engages in other facially criminal conduct, may not have committed an actus reus, for such conduct may have been elicited unconsciously, and "one who engages in what would otherwise be criminal conduct is not guilty of a crime if he does so in a state of unconsciousness" Depending on jurisdiction, automatism may be a defense distinct from insanity or a species of it.
While the general scientific consensus is that hypnosis cannot induce individuals to engage in conduct in which they would not otherwise engage, the Model Penal Code, as well as the criminal codes of Montana, New York, and Kentucky do provide hypnosis and hypnotic suggestion as negating volition, and consequently, actus reus.
Perhaps the earliest case of hypnotism as negating voluntary conduct
is California v. Ebanks, 49 P 1049 (Cal. 1897). In Ebanks, the court
categorically rejected Ebanks' argument that the trial court committed
reversible err in denying him leave to present expert testimony
concerning the effects of hypnotism on the will. The lower court
bluntly remarked that "he law of the United States does not recognize
hypnotism. It would be an illegal defense, and I cannot admit it."
Nearly sixty years later, however, the California Court of Appeals
ruled that the trial court did not err in allowing expert testimony on
hypnosis, though it did not rule on whether hypnotism negates
volition. The Supreme Court of
Voluntariness includes omission, for implicit in omission is that the actor voluntarily chose to not perform a bodily movement and, consequently, caused an injury. The purposeful, reckless, or negligent absence of an action is considered a voluntary action and fulfills the voluntary requirement of actus reus.
* ^ Coke, chapter 1, folio 10 * ^ Model Penal Code § 1.13(2) * ^ Dennis J Baker, Glanville Williams Textbook of Criminal Law, Sweet & Maxwell: London, 2012, at p. 167. * ^ 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) * ^ Holland, Winnifred H. (1982–1983). "Automatism and Criminal Responsibility". Crim. L.Q. 25: 106. If X, during a grand mal seizure, by a reflex action kicks out and hits Y, then it is most unlikely there will be criminal liability. * ^ Decina, at 135 * ^ Decina, at 138 * ^ More particularly, he argued that a demurrer should have been sustained because the indictment did not charge a crime. Decina, at 139 * ^ Decina, at 141 * ^ Blair, Medicolegal Aspects of Automatism, qtd. in McClain v. State, 678 N.E.2d 104, 106 (Ind. 1997) * ^ McClain, at 107 * ^ State v. Caddell, 215 S.E.2d 348, 360 (N.C. 1975) * ^ McClain, at 108 * ^ Bonnema, Mary Christine (1992–1993). "Trance on Trial: An Exegesis of Hypnotism and Criminal Responsibility". Wayne L. Rev. 39 (1299): 1311. Although many believe the misconception that hypnosis is "a mystical ploy that sends someone into another world and puts them at the mercy of another's ideas...," the more modern view is that a hypnotist cannot make a hypnotized person do anything she does not want to do. * ^ Bonnema, p. 1316 * ^ A B Ebanks, at 1053 qtd. in Bonnema, p. 1313 * ^ California v. Marsh, 338 P.2d 495 (Cal. Ct. App. 1959) qtd. in Bonnema, p. 1314 * ^ Bonnema, p. 1315 * ^ Commonwealth v. Pestinikas, 617 A.2d 1339 (Pa. Super. Ct. 1992) * ^ People v. Steinberg, 79 N.Y.2d 673 (1992)
* Coke, Edward (1797). Institutes, Part III. * Dubber, Markus D. (2002). Criminal Law: Model Penal Code. Foundation Press. ISBN 1-58778-178-6 .