ⓘ Actus reus

                                     

ⓘ Actus reus

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 England and Wales, Canada, Australia, India, Kenya, Pakistan, Philippines, South Africa, New Zealand, Scotland, Nigeria, Ghana, Ireland, Israel and the United States of America. In the United States of America, some crimes also require proof of an attendant circumstance.

                                     

1. Definitions

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, 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 thought and action.

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." 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. Commentator Dennis Baker asserts: "Although lawyers find the expression actus reus convenient, it is misleading in one respect. It means not just the criminal act but all the external elements of an offence. Ordinarily, there is a criminal act, which is what makes the term actus reus generally acceptable. But there are crimes without an act, and therefore without an actus reus in the obvious meaning of that term. The expression" conduct” is more satisfactory, because wider; it covers not only an act but an omission, and by a stretch a bodily position. The conduct must sometimes take place in legally relevant circumstances. The relevant circumstances might include consent in the case of rape. The act of human sexual intercourse becomes a wrongful act if it is committed in circumstances where one party does not consent and/or one or more parties concerned are below the age of consent. Other crimes require the act to produce a legally forbidden consequence. Such crimes are called result crimes. All that can truly be said, without exception, is that a crime requires some external state of affairs that can be categorized as criminal. What goes on inside a persons head is never enough in itself to constitute a crime, even though it might be proven by a confession that is fully believed to be genuine."

An act can consist of commission, omission or possession.

                                     

1.1. Definitions Omission

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.

                                     

1.2. Definitions Possession

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.

                                     

2. Voluntariness

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: "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 Canada ruled confessions made under hypnosis inadmissible because they are involuntarily given; Germany and Denmark provide a hypnotist defense.

                                     

2.1. Voluntariness Omission

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.