Murder By Omission: Some Observations on a Mismatch Between The General and Special Parts

Abstract

Practices of criminalization, reflected in the surprising absence of convictions across a range of common law jurisdictions, imply that the threshold for liability in murder may differ depending upon whether the conduct element is an omission or an act. These practices hint at possible doctrinal ramifications of imposing liability for omissions. These ramifications, I shall argue, include the desirability both of a looser causal nexus and a stricter fault element. The looser causal nexus is justified so long as it remains fair to attribute the death of the victim to the wrongful conduct of the defendant, and I shall argue that it will be fair if there is a correspondingly stricter fault requirement, namely (direct) intention. By virtue of such fault element, doctrine is also able to sidestep certain issues of context and motivation that are of key significance for an appropriate model of responsibility where death is caused by omission.