On the moral irrelevance of bodily movements.

• Author: Fletcher, George P.
• Position: Symposium: Act & Crime

In the mess of confusions called Anglo-American criminal law, writers commonly refer to the "problem of punishing omissions."(1) There is something untoward, they say, about imposing criminal liability on the bystander who could intervene to save a drowning child and fails to do so.(2) Punishing acts in violation of the law is all right, but there is some special difficulty, never completely understood and clarified, about imposing liability for omissions.

The confusion about omissions has suffered unnecessary compounding by the organization of one of the leading casebooks on criminal law. Apparently not quite sure where to locate their cases on omissions, Sanford Kadish and Stephen Schulhofer stuck them in among opinions on issues raised by requiring a voluntary act.(3) The specious inference underlying this organization goes something like this: (1) we all agree that criminal liability presupposes human action, and (2) the law has an aversion to punishing omissions, and (3) therefore the latter aversion must be connected to the former requirement.

This sloppy thinking is drawn together by a play on the word "act." The act requirement speaks to the critical importance of human agency in our theory of moral and legal responsibility. But whatever the act/omission distinction is about, it is not about the problem of human agency. Agency is built into the standard example of the bystander who lets the child drown. The example would not even be interesting unless we assumed that the bystander chose to remain motionless and that she had an unrestrained option to intervene and rescue the child.

Moore has gone one step further than the organization thesis of the Kadish/Schulhofer casebook. He claims that punishing omissions is a problem precisely because we have the act requirement. "Omissions," he writes, "are the absence of any willed bodily movements."(4) Actions are "willed bodily movements"(5) and omissions are the opposite; they are "literally nothing at all."(6) Well, Moore does not quite mean that. Someone who is asleep does not omit to rescue. Dead men who do "literally nothing at all" do not omit. To repeat the point made above, the only kind of omitting that is interesting is the kind in which human agency is expressed. When there is a solid challenge to agency in the context of "positive acts" (for example, hypnotism, somnambulism), the same grounds would undermine agency in omissions. What Moore must mean, therefore, is that omissions are the willed absence of bodily movements, or willed nonmotion.

At least, that is what it seems Moore means by omissions. He has another line of thought that defines omissions by reference to particular acts. In the midst of the passages quoted above, he writes that "an omission to save X at some time t is just the absence of any instantiation of the type of action |saving X.'"(7) Yet the dominant message is conveyed by Moore's conclusion that "there is no conceptual objection to be made to the movement/non-movement conceptualization of the act/omission distinction."(8) Moore is not alone in thinking that the act/omission distinction parallels action and passivity. Prosser refers to the problem as "a distinction between action and inaction."(9) And after reviewing the problem, Douglas Husak concludes that although the criterion of bodily movements "has been vigorously attacked, no satisfactory alternative has emerged to take its place."(10)

I mean to challenge this conventional view (which I will identify as Moore's view)(11) with the radical suggestion that bodily movements have no bearing on the act/omission distinction. Movement, as such, has no moral relevance. More precisely, I will defend the following propositions:

1. The problem of omissions, properly understood, poses no

   exception to the requirement of human action or agency in

   the criminal law.

2. The problem of omissions, properly understood, has nothing

   to do with the distinction between motion and nonmotion,

   bodily movements and the absence of bodily movements.

3. The distinction between motion and nonmotion has, at most,

   a debatable impact on the extent of our liberties.

   Admittedly, Moore's position defies ready clarification. He could not possibly mean that only willed bodily movements could be the object of praise and blame. Tourists regularly pause and stare in wonderment at the motionless guards standing in front of Buckingham Palace. Standing without moving for a few minutes is a feat worthy of praise at least as much as doing a back flip off the diving board. And standing motionless on one's head is an even greater feat. Whatever else Moore might think, he surely is willing to praise those who deserve it, and remaining motionless under difficult conditions warrants praise. If nonmovements under certain conditions warrant praise, then surely nonmovements might also be the object of blame and condemnation.

   Moore concedes as much by recognizing that there "should be an act requirement, although it is and should be subject to an exception in the case of certain omissions."(12) It is a pity that Moore pays no attention to the law and its complexities and fails, therefore, to give us a clue about which omissions pose an exception to his act requirement. He merely opines: we punish omissions "that violate our duties sufficiently that the injustice of not punishing such wrongs outweighs the diminution of liberty such punishment entails."(13) As he notes earlier, there is a special problem of infringing liberty when the state punishes...