§ 9.07 Omissions: Exceptions to the No-Liability Rule

§ 9.07 Omissions: Exceptions to the No-Liability Rule

[A] Common Law Duty to Act: "Commission by Omission"

[1] Overview

In the limited circumstances set out in subsection [2] below, common law liability for a criminal offense may be predicated on an omission, rather than on a voluntary act. Such cases involve what may be termed "commission by omission"¹⁰⁷ liability. That is, when a common law duty to act exists, and assuming that she was physically capable of performing the act, a defendant's omission of the duty to act serves as a legal substitute for a voluntary act. Therefore, if the remaining elements of the charged offense are proven (that is, the omitter caused the social harm of the offense with the requisite mens rea), the defendant may be convicted of commission of the specified crime. For example, courts have upheld criminal homicide convictions based on omissions. A person with a legal duty to act who negligently fails to provide or summon needed care to someone in great medical distress may be guilty of manslaughter if the person dies as a result of the omission.¹⁰⁸ A person who has a legal duty to report a fire may be convicted of some form of criminal homicide if her failure to report the fire recklessly or negligently results in death.¹⁰⁹ A parent who has a duty to act may be convicted of child or sexual abuse if she fails to prevent such harm from being committed by another person.¹¹⁰

Punishment for "commission by omission," even if otherwise defensible, has been criticized by a few scholars¹¹¹ as violative of the legality principle. That is, the definitions of most criminal offenses contain verbs such as "kill," "burn," or "break and enter." It is questionable whether, for example, a person who stands by passively while another dies, even if she has a duty to intervene, can be said to have "killed" the other person, as distinguished from "permitting" such a death to occur. Nonetheless, courts almost never bar omission-based convictions on legality or statutory construction grounds.

We turn now to those uncommon circumstances in which a person does have a common law duty to act.

[2] When There Is a Duty to Act

[a] Status Relationship

A person may have a common law duty to act to prevent harm to another if she stands in a special status relationship to the person in peril. Such a relationship is usually founded on the dependence ofone party on the other or on their interdependence. Such status relationships include: parents to their minor children;¹¹² married couples to one another;¹¹³ employers to their employees;¹¹⁴ and invitors to their invitees.¹¹⁵ Thus, a mother who allows her children to remain with their father, whom she knows is abusing them, is herself guilty of child abuse by her omission;¹¹⁶ and, a parent's failure to seek medical attention for her seriously ill child, which omission results in the child's death, will support a conviction for criminal homicide, assuming that the parent acted with the requisite mens rea.¹¹⁷

[b] Contractual Obligation

A duty to act may be created by implied or express contract. For example, one who breaches an agreement to house, feed, and provide medical care to an infirm stranger,¹¹⁸ or to care for one's mentally and physically disabled parent,¹¹⁹ may be held criminally responsible for an ensuing death. Similarly, a babysitter owes an implied contractual duty to protect her ward, and a doctor has a duty to provide ordinary medical care for her patient.

[c] Omissions Following an Act

In some circumstances an act, followed by an omission, will result in criminal responsibility for the omission, even (sometimes) when there is no liability for the original act.

[i] Creation of a Risk

A person who wrongfully harms another or another's property, or who wrongfully places a person or her property in jeopardy of harm, has a common law duty to aid the injured or endangered party. If she breaches her duty in this regard, she may be held criminally responsible for the harm arising from the omission. For example, if D negligently injures V, D has a common law duty to render aid to V. If D fails to do so, and V dies as the result of the omission, D may be held criminally responsible for V's...