§ 9.05 VOLUNTARY ACT: MODEL PENAL CODE

• Jurisdiction: United States

§ 9.05. Voluntary Act: Model Penal Code

[A] General Principles

The Model Penal Code provides that no person may be convicted of a crime in the absence of conduct that "includes a voluntary act or the omission to perform an act of which he is physically capable."⁸¹ The Code allocates to the prosecution the responsibility to persuade the factfinder beyond a reasonable doubt of the existence of a voluntary act.⁸²

The Code defines the term "act" as a "bodily movement whether voluntary or involuntary."⁸³ It does not define the term "voluntary," except "partially and indirectly,"⁸⁴ by listing bodily movements that are involuntary: reflexes; convulsions; conduct during unconsciousness, sleep, or due to hypnosis;⁸⁵ and, generally, any conduct that "is not a product of the effort or determination of the actor, either conscious or habitual."⁸⁶ The Model Code also provides that, for purposes of the voluntary act rule, "possession" is an "act" if the possessor either knowingly obtained the object possessed or knew she was in control of it "for a sufficient period to have been able to terminate . . . possession."⁸⁷

[B] Exception to the Rule

The "voluntary act" rule stated in Section 2.01 of the Model Penal Code applies to liability for "crimes," i.e., felonies, misdemeanors, and petty misdemeanors.⁸⁸ However, Section 2.05(1) of the Code provides that the requirements set out in Section 2.01 do not apply to offenses that constitute "violations," unless a court determines that application of Section 2.01 is "consistent with effective enforcement of the law defining the offense." A "violation" is an offense for which the maximum penalty is a fine or civil penalty.⁸⁹

Accordingly, under Section 2.05, a driver who suffers an unforeseeable blackout and, as a consequence, fails to halt at a stop sign, may be convicted of a motor vehicle violation in the absence of proof of any voluntary act. The Commentary to Section 2.05 concedes that the fairness of this outcome is "debatable";⁹⁰ but with extremely minor offenses, the drafters of the Code determined that litigation of involuntary-act claims should not be permitted to undermine effective law enforcement.

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Notes:

^[81] . Model Penal Code § 2.01(1).

^[82] . Model Penal Code § 1.12(1).

^[83] . Model Penal Code § 1.13(2).

^[84] . American Law Institute, Comment to § 2.01, at 219.

^[85] . The drafters of the Code justified this controversial inclusion on the ground that conduct during hypnosis or resulting from hypnotic suggestion is...