Two Models of 'Absence of Movement' in Criminal Jurisprudence

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.