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Criminal Law
University of California, Berkeley School of Law
Kutz, Christopher L.

ß 2.13(10) Material Element of an Offense

2.13(10) “material element of an offense” means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with:
(i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, OR
(ii) the existence of a justification or excuse for such conduct

ß 2.01. Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act.

(1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable.

(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;

(b) a bodily movement during unconsciousness or sleep;

(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:

(a) the omission is expressly made sufficient by the law defining the offense; OR

(b) a duty to perform the omitted act is otherwise imposed by law.

(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

Subsection (1) states the fundamental predicate for all criminal liability, that the guilt of the defendant be based upon conduct, and that the conduct include a voluntary act or an omission to perform an act of which the defendant was physically capable. Under the Code, liability cannot be based upon mere thoughts, upon physical conditions, or upon involuntary movements. It is, however, required only that the actor’s conduct include a voluntary act, and thus unconsciousness preceded by voluntary action may lead to liability based upon the earlier conduct (time-framing).
Subsection (2) elaborates the concept of “voluntary.” Three specific conditions are excluded, as is any other bodily movement that is not a product of the effort or determination of the actor, either conscious or habitual.
Subsection (3) indicates the circumstances under which an omission will suffice for liability. There are some cases where an omission is expressly made sufficient by the law defining the offense, as in the failure to file an income tax return. An omission will also suffice in cases where a duty to perform the omitted act is otherwise imposed by law. Laws defining the obligation of parents toward infant children provide an illustration.
Subsection (4) describes the conditions under which possession can be an act within the meaning of Subsection (1). One of two conditions will suffice: if the actor knowingly procured or received the thing possessed, his conduct will have included a voluntary act and liability can be imposed consistently with Subsection (1); similarly, if the actor was aware of his control for a sufficient period to have been able to terminate his possession, his conduct will have included an omission to perform an act of which he was physically capable. Since a law making possession a crime implies a duty to relinquish possession as soon as one is aware of it, liability imposed in the latter instance is consistent with the principles of Subsections (1) and (3)(b).

Comments:

ß 2.02. General Requirements of Culpability.

(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2) Kinds of Culpability Defined.

(a) Purposely. A person acts purposely with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; AND
(ii) if

person acts purposely or
knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.
(6) Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.
(7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a
particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its
existence, unless he actually believes that it does not exist.
(8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed
wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to
impose further requirements appears.
(9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct
constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is
an element of such offense, unless the definition of the offense or the Code so provides.
(10) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether
the offense is committed purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest for
which the determinative kind of culpability is established with respect to any material element of the offense.