Legal Liability and Criminal Omissions

Abstract

In Harm To Others, Joel Feinberg argues that the failure to prevent harm (at least in some circumstances) falls within the moral limits of the criminal law. In some respects the claim must be taken as unexceptional. The criminal law recognizes omissions as offenses whenever there is a determinate duty to act. Illegal omissions are simply the failure to do what is required by law. If, by law, you are required to wear clothing in public, then you will be arrested for failing to do so. If, by law, you are required to protect or care for some other person (say, your child, parent, patient, client, or ward), then you are held to be liable (and responsible) for doing so. If the person for whom you are responsible should die, then you may be liable for homicide (or wrongful killing) whether negligent or intentional. Such laws are common and uncontroversial in the sense that virtually no commentators claim that they should not be part of the criminal law. But how exactly they fit in traditional criminal theory is another matter. The punishment of omission raises interesting problems for criminal law theorists in several respects. First, it is not clear that omission can pass the tests of actus reus and mens rea that are supposedly necessary for a prima facie case of criminal liability. This (along with other prob-