Actus Reus in the Form of An Affirmative Physical Act

JurisdictionMaryland

II. Actus reus in the form of an affirmative physical act

A. Bodily activity

Bad thoughts alone are insufficient to constitute a criminal offense. See Dennis v. United States, 341 U.S. 494, 583 (1951); William L. Clark & William L. Marshall, A Treatise on the Law of Crimes 262 (Marion Quinn 7th ed. 1967). Most criminal offenses require some affirmative physical act, manifested through bodily activity. Sometimes, the bodily activity must be accompanied by (1) surrounding circumstances, e.g., lack of consent in rape; or (2) consequences or results, e.g., death of the victim in murder and manslaughter. 1 Wayne R. LaFave, Substantive Criminal Law § 6.1(a) (3d ed., Oct. 2020 Update).

B. Voluntariness of the act

1. Voluntary act requirement

To constitute an affirmative physical act, an act must be a voluntary act. 1 LaFave, Substantive Criminal Law § 6.1(c). A defendant is not criminally liable for an involuntary act on either or both of two theories. An involuntary act cannot be deterred through punishment, nor can a person punished for an involuntary act achieve rehabilitation or retribution. Id.

2. Acts deemed to be involuntary acts

Acts deemed involuntary include those performed while the defendant is in an unconscious or automated state. Id.; Evans v. State, 302 Md. 24, 31-32 (1991) (automated and unconscious acts as involuntary acts); Model Penal Code (MPC) § 2.01(2). Examples include acts that occur when the defendant is asleep, unconscious, experiencing an epileptic seizure, or experiencing a narcoleptic spell. Likewise, an act of the defendant that is reflexive, convulsive, undesired, or uncontrollable is usually deemed to be involuntary. See Herd v. State, 125 Md. App. 77, 90 (1999) ("a muscle spasm or a fall" is an involuntary act not subject to criminal liability).

If the defendant is the innocent human agent of a criminal agent, the defendant's act is deemed to be involuntary. Id. For example, if A pushes B into C, and C falls off a cliff, even though it was B's contact with C that caused C to fall off the cliff, B is the innocent human agent of A. Thus, B is deemed not to be the criminal agent, and A is deemed to be the criminal agent, having acted through B, when A controlled the conduct of B, who was the innocent human agent of A. See State v. Runkles, 326 Md. 384, 404 (1992) (principal acting through an innocent human agent was criminally culpable for result). If A loses his balance and begins falling over a cliff and, while reaching to save himself, A grabs B, who falls over the cliff, A's act is deemed to be an involuntary act.

There is a split of authority as to whether an act performed under hypnosis is a voluntary act or an involuntary act. Some jurisdictions, and the Model Penal Code, consider an act performed under hypnosis to be an involuntary act, treating it as an unconscious or automated act. 1 LaFave, Substantive Criminal Law § 6.1(c). Some jurisdictions consider an act performed under hypnosis to be a voluntary act on the theory that an individual under hypnosis will perform only an act that the individual is willing to perform. Id.

In Fontaine v. State, 135 Md. App. 471, 476 (2000), the defendant was arrested in Delaware for driving without a license. Officers transported him to the police station, which was located in Maryland. When the defendant was searched, the police recovered cocaine. Id. He was charged in Maryland with possession of...

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