Download this Paper Open PDF in Browser

Two Models of 'Absence of Movement' in Criminal Jurisprudence

19 Pages Posted: 18 Sep 2013 Last revised: 13 Mar 2014

Roni M. Rosenberg

Carmel Academic Center - Law School; Tel Aviv University - Buchmann Faculty of Law; Taubenschlag Institute of Criminal Law, Tel Aviv University

Date Written: August 17, 2013

Abstract

The distinction between act and omission is deeply embedded in our legal thinking. In criminal jurisprudence, in order to convict someone of committing an act that caused harm, any act will suffice .On the other hand, to convict based on an omission that caused harm it is necessary to identify a duty to act on the part of the defendant, such that breach of that duty caused the harm.

The generally accepted approach in criminal jurisprudence is to define act and omission under the bodily movement test. This essay critiques that approach and points to the fact that American jurisprudence is not uniform with regard to the definition of act and omission in the criminal-law context. The essay suggests that this lack of uniformity springs from the differing rationales that underpin the distinction between act and omission in criminal jurisprudence.

The essay goes on to discuss an alternate way to define act and omission - the risk - creation test. Under this test, there are instances that involve bodily movement that should be classified legally as omissions. More significantly, there are instances that do not involve any bodily movement that should be classified as acts.

In direct correlation to this test, the essay presents two models for absence of movement: enabling absence of movement and risk-creating absence of movement. It concludes that an absence of movement of the second type is an act in the legal sense rather than an omission. Consequently, instances included in the second model will not require the identification of a duty to act in order to convict a defendant. This is a new distinction in criminal jurisprudence that has not previously been articulated.

Keywords: omission, act, causation, criminal law, liberty

JEL Classification: K14

Suggested Citation

Rosenberg, Roni M., Two Models of 'Absence of Movement' in Criminal Jurisprudence (August 17, 2013). Ohio State Journal of Criminal Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2326949

Roni M. Rosenberg (Contact Author)

Carmel Academic Center - Law School ( email )

Haifa
Israel

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

Taubenschlag Institute of Criminal Law, Tel Aviv University ( email )

Tel Aviv
Israel

Paper statistics

Downloads
64
Rank
295,535
Abstract Views
450