Murder by Omission: Some Observations on a Mismatch between the General and Special Parts
26 Pages Posted: 25 Jan 2010
Date Written: January 25, 2010
In this paper I examine the constitution of murder by omission and consider how its constituent elements should be weighted to ensure a true analogy. I argue, first, that the act/omission distinction is insufficiently robust analytically and morally to sustain the weight of accountability presently placed upon it. Omissions are simply the clearest example of the discrepancies which may exist between legal definitions and underlying moral prohibitions. A person who, with full knowledge, conducts himself in such a way that the death of another is inevitable does not necessarily breach the moral prohibition against deliberate killing. This is so whether we classify his conduct as an act or as an omission. However, and this forms the bulk of the thesis, pure omissions (and acts analogous to omissions) are easier to justify, easier to excuse, less easy to conceptualise as an attack on life and as a cause of death. The key to achieving sufficient parity of culpability and wrongdoing to warrant a conviction for murder, is the mental element. It requires that the omission is for the purpose of causing death. Once this distinctive mental element is established there is no undue obstacle to a finding of accountability. The omitter’s commitment to the outcome provides a firm basis for conceiving the omission as an attack on life, generates a presumption that the omission was causally effective and disarms claims that the omission may have been reasonable, justifiable or excusable.
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