§ 9.03 Voluntary Act: Supposed (But Not Real) Exceptions to the Requirement

§ 9.03 Voluntary Act: Supposed (But Not Real) Exceptions to the Requirement

[A] Poorly Drafted Statutes

Some statutes appear to dispense with the requirement of a voluntary act. For example, a Vermont statute once prohibited persons not married to one another "to be found in bed together."⁶⁶ Read literally, this statute would unfairly and implausibly allow the conviction of a person who, while unconscious, was placed in a bed with someone to whom she was not married. Although a court could conceivably apply such a statute literally,⁶⁷ it is likely (and to be hoped) that it would interpret the law to require a voluntary act.

[B] Status Offenses

In the past, many legislatures enacted so-called status offenses. For example, vagrancy laws made it an offense to "be a vagrant." Likewise, a California statute prohibited a person "to be addicted to the use of narcotics." These offenses required proof of a status (vagrancy or addiction), rather than conduct. These type of statutes punish being, rather than doing.⁶⁸

The Supreme Court has not looked kindly upon such offenses. It invalidated a typical vagrancy law on the ground that it was unduly vague and could result in arbitrary police enforcement;⁶⁹ and it held that a California statute that criminalized being an addict violated the Eighth Amendment bar on cruel and unusual punishment.⁷⁰ Very likely any statute that punishes a person for a mere propensity to act will run afoul of constitutional principles.⁷¹

[C] Crimes of Possession

All states prohibit possession of contraband (e.g., cocaine) or criminal instrumentalities. On their face, these penal provisions do not require the defendant to act, only that she passively possess the prohibited objects.

Crimes of possession are "inchoate," or incomplete, offenses. That is, their real purpose is to provide the police with a basis for arresting those whom they suspect will later commit a socially injurious act (e.g., sell narcotics, or use the tools to commit a crime).

Possession crimes do not necessarily dispense with the voluntary act requirement. Courts typically interpret possession statutes to require proof that the defendant knowingly procured or received the property possessed (thus, a voluntary act must be proven), or that she failed to dispossess herself of the object after she became aware of its presence.⁷² In the latter case, "possession" is equivalent to an omission, in which the defendant has a statutory duty to dispossess herself of the property.⁷³ She...