Is there an act requirement in the criminal law?

• Author: Corrado, Michael
• Position: Symposium: Act & Crime

INTRODUCTION

No one should be punished except for something she does. She shouldn't be punished for what wasn't done at all; she shouldn't be punished for what someone else does; she shouldn't be punished for being the sort of person she is, unless it is up to her whether or not she is a person of that sort. She shouldn't be punished for being blond or short, for example, because it isn't up to her whether she is blond or short. Our conduct is what justifies punishing us. One way of expressing this point is to say that there is a voluntary act requirement in the criminal law.

There is a view of this voluntary act requirement that I will call the traditional view in the common law.(1) One of the most significant features of the traditional view is that it takes willing or volition to be the key to voluntariness. Sir James Stephen, for example, states that a voluntary act "is a motion or group of motions accompanied or preceded by volition and directed toward some object."(2) According to Charles Torcia, "[a]n act is |voluntary' when the bodily movement is the product of conscious effort or determination."(3) And Arnold Loewy says of his usage that "the term voluntary simply means that the muscular contraction [is] willed."(4) In the traditional analysis then, the act requirement is a voluntary act requirement, and is satisfied by a willed or volitional movement.

The traditional view has recently been rearticulated in rather precise form by Michael Moore.(5) According to Moore's detailed view, the statement of a prima facie case in criminal law presupposes the existence of a basic act, which consists of a bodily movement caused by a willing or volition.(6) A basic act is the simplest thing we do that has an effect on the physical world. It is something we bring about directly, and not by means of something else that we do.

Basic acts are also, in a sense, the only things that we do, because an act, properly so called, does not include the circumstances, conditions, or consequences of the bodily movement involved in the act. "[T]he criminal law's act requirement requires that there be a simple bodily movement that is caused by a volition before criminal liability attaches, and that such a movement is all the action that a person ever performs."(7) In other words, the act of killing is reducible to a basic act and the death that it causes. A description of an act of killing is really a description of a basic act together with the ensuing death.

An act is an event,(8) which means it is a change that takes place in an object.(9) A bodily movement is a change in the relative position of the parts of the body, not merely holding still.(10) A volition is a type of intention, although I do not think Moore would be unhappy to think of it as an "undertaking" or a "trying." It is a functional state of the brain, or perhaps a change in a functional state of the brain. It is an Intentional state, taking propositions as objects.(11)

The act itself, the basic act, is neither the volition nor the movement; it is the causing of the movement by the volition. There are, of course, deviant ways in which volitions can cause movements, such that no acts result. In the act requirement, causation between volition and movement must be direct in a sense to be provided by empirical, case by case study.(12) The basic act, that is, the causing, is partially identical to the movement which is caused.(13) What this appears to mean is that the movement is part of the causing. The causing is also partially identical to the volition.(14) Unlike the volition, the basic act itself is not an Intentional state.(15) These observations are meant to be an analysis of the voluntary act requirement, and not, for example, a description of conditions we take as evidence that a voluntary act has occurred. In Moore's usage, "voluntary" is "a synonym for |willed' or "volitional."(16)

Moore's account of action is causal all the way through: In an intentional crime the volition must be caused, in the proper way, by the intention or belief which is the crime's mens rea; and the resulting action must cause (in the proper way) the prohibited consequences which are the actus reus.(17) Suppose the question is whether Jones is liable for the murder of Smith. In order to be liable, she must have brought about Smith's death. And she must have intended to, or known that she would, cause that death. But if she ran over Smith by accident on her way to the store, she has not committed murder. If she had the intention to kill Smith, it played no causal role in her bringing about Smith's death.

Further, if she ran over Smith on her way to Smith's house to carry out the killing, she still has not committed murder. Although she had the intention to kill Smith, and that intention played a causal role in the killing (leading to the volitions and the movements that resulted in the killing), the causation was deviant, not the sort that counts in questions of intentional action. If her intention had, on the other hand, led her to confront Smith and then, with a gun in her hand, to squeeze her finger on the trigger until the gun fired, killing Smith, she would then have committed murder. Her intention caused her to will (or try, or undertake, or choose) to squeeze her finger, which caused the trigger to move, which caused the gun to fire, which caused the bullet to pierce Smith, which caused Smith to die. There is only one act in all this, the basic act of Jones moving her finger. It can, however, be described in various ways depending upon which of the consequences are read into the description: pulling the trigger, firing the gun, wounding Smith, killing Smith.

In Moore's view, then, there are these elements of intentional homicide:

Voluntary act: There was a basic action of Jones, consisting of a

bodily movement caused (nondeviantly) by a volition.

Mens rea: The volition was caused (nondeviantly) by Jones's

intention to bring about Smith's death by means

of that movement, or by her intention to bring

about something she knew would bring about

Smith's death.

Actus reus: Jones's basic action did in fact (nondeviantly)

cause Smith's death.

Moore concedes that where the law requires us to act in a certain way--for example, a parent is required to care for her child--a failure to act will violate the law and justify punishment.(18) Since a failure to act is not a willed movement, such "omissions" are a counterexample to the general thesis. Moore acknowledges this point, while maintaining that laws punishing omissions are (appropriately) rare.(19) Since they infringe on liberty to the extent of requiring an affirmative act, such laws punish only violations of those moral obligations that we find most significant.(20)

For example, we have a moral obligation to avoid killing people, and intentionally killing them is criminalized. But we also have a moral obligation to prevent people from being killed; yet the law does not ordinarily punish failures to save lives. As important as it may be to save a life, failure to do so cannot justify imposing an affirmative legal duty on each of us. On the other hand, the duty of a parent toward her child is much more significant than the general duty toward strangers. Consequently, it is reasonable to impose on parents a legal duty to protect their children. Nevertheless, such affirmative legal duties are relatively rare, and do not require a revision of the willed movement thesis. They may be treated, according to Moore, as an exception to the rule requiring voluntary acts.(21)

In the remainder of this Article I will argue for these points: (1) There is no movement requirement in the criminal law; (2) There may, however, be a requirement of physical conduct which would include both movements and failures to move; (3) The requirement of a volition, to the extent it is a requirement, follows from mens rea and is not independent; and (4) The traditional analysis of a voluntary act fails to include the sense of "voluntariness" that seems to be part of the prima facie criminal case.(22)

1. THE MOVEMENT REQUIREMENT AND PHYSICAL CONDUCT

   1. The Hypothesis of a Movement Requirement

      According to the traditional view, a prima facie case in criminal law consists of the following:

      (PF1) Jones may be punished for violating law L only if:

      (1) L forbids the bringing about of (an instance of) [alpha]; and

      (2) Jones brings about (such an instance of) [alpha] (at t); and

      (3) Jones does so by bringing about [beta] (at t-n), which is the

      non-deviant causing of a bodily movement of Jones by a volition of Jones; and (4) that volition is caused in a non-deviant way by Jones's

      intention to bring about r, and bringing about r bears the appropriate relation to bringing about a. Condition (1), taken together with condition (2), is required by the principle of legality. That principle requires that the specific consequence for which Jones is to be punished be something that is prohibited by the law. Although there is the normal concern about when (precisely) we can declare that something is the very thing prohibited by law, it is clear enough what this provision is meant to rule out.(23) In some penal codes there are provisions that embody what is called "the principle of analogy."(24) Under those provisions, if the behavior of the defendant has been antisocial or socially dangerous, but the judge cannot find any legal provision that outlaws that particular behavior, she may look for a provision that penalizes behavior somehow "analogous" to the behavior in question, and administer the punishment provided for that analogous behavior. If we restrict substituends for "[alpha]" to narrowly defined classes of actions, we significantly limit the discretion of judges in this connection.

      Condition (2) is the requirement of an actus reus. We may not punish a defendant unless she has brought about the prohibited consequence.(25) The point of that limitation should be...