Omissions as Acts

Fundamentals of Criminal Law by Adam J. McKee

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Most crimes are the result of some action that causes a resulting harm. However, it can also be criminal to do nothing. The most common criminal omission is the failure to report something when the law obliges you to do so such as a traffic accident, child abuse, or your earnings to the IRS. Many jurisdictions make it a crime to fail to intervene in order to prevent certain harms.

In Jones v. United States (308 F. 2d 307, 1962), the court indicated that there are at least four situations in which the failure to act may constitute a breach of legal duty. One can be held criminally liable:

  1. Where a statute imposes a duty to care for another;
  2. Where one stands in a certain status relationship to another;
  3. Where one has assumed a contractual duty to care for another; and
  4.  Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

Statutory Duty to Act

Lawmakers are usually reluctant to punish people for not doing something, but under some circumstances, there is a compelling state interest that outweighs the defendant’s freedom of choice.  In these rare cases, lawmakers enact statutes that make it criminal not to do something.  Common examples of statutory duties to act are the duty to pay state and federal tax returns, the duty of health-care professionals to report gunshot wounds, and the duty to report child abuse.

At common law, it was not criminal to stand by and refuse to help someone in danger. Some states have rejected the spirit of the common law doctrine by enacting Good Samaritan Statutes that create a duty to assist those involved in an accident or emergency.  These statutes typically contain provisions that protect the Good Samaritan from civil liability when providing assistance.  For example, if you broke someone’s rib while performing life-saving CPR on them, they could not sue you for the injury.  

Key Terms

Actual Possession, Actus Reus, Conscious Possession, Constructive Possession, Culpability,
Elements of Crimes, Mens Rea, Mere Possession, Overbroad, Voluntary Act Requirement

References and Further Reading

“Actus Reus.” Encyclopedia of Crime and Justice.


“Voluntary Act.” West’s Encyclopedia of American Law.


“Good Samaritan Doctrine.” West’s Encyclopedia of American Law.



Powell v. Texas, 392 U.S. 514 (1968).


Robinson v. California, 370 U.S. 660 (1962).


Modification History

File Created:  07/12/2018

Last Modified:  07/12/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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