Criminal Law

When can an actus reus be a failure?

Actus reus generally involves three elements: (1) a voluntary act or failure to perform an act, (2) that causes, (3) a harm condemned under a criminal statute (Chapter 4: Actus Reus, p. 39).The general basis for imposing liability in criminal law is that the defendant must be proved to have committed a guilty act whilst having a guilty state of mind.

As a basic rule there can be no criminal liability for a failure to act (omission), unless at the time of the failure the defendant was under a legal duty to take positive action (TUFAL, p. 2).

A positive duty to act arises under the following constellations:

(a) Duty arising from statute: Examples are filing tax returns, professionals reporting child abuse or registering firearms.

(b) Duty arising from contract: Examples would be the babysitter, the doctor or the lifeguard....
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