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Criminal Law
University of Kansas School of Law
Armstrong, Rex

Omissions
 
An omission will support criminal liability ONLY where there is a duty to act. These duties are derived from:
 
Statute (File Tax Return)
Contract (Physician has a contractual duty to supply healthcare to a patient)
A special relationship (Parent and Child arising from the relationship itself)
Created a dangerous situation (Captain on the boat not replacing the beams)
Duty to act where they have begun to act. Once you begin you cannot cease – placing the person in a worse situation than they would have otherwise been in if the Good Samaritan had not helped them.
 
 
 
CRIMINAL ELEMENTS
 
Barber Case – Act? uncomfortable as seeing it as murder and as premeditated murder.
– The guy had a heart attack after surgery.
 
–         Legislature did not have the intention.
 
Duty to Act?
–         Here was a Contract – no duty for futile treatment (i.e no benefit to the patient)
–         Looks at the patients value
–         Then relies on the family – they said cease it.
 
Passive Euthanasia?
–          
 
Passive Euthanasia?
–         Withdrawing life sustaining treatment.
–         Or Withholding life sustaining treatment.
–         Legality questionable?
 
Voluntary Passive Euthanasia?
–         It is legally permissible in every State with restrictions:
 
1. It needs to be voluntary – the wishes of the person.
–         E.g Barber – In that case to determine if the Euthanasia was voluntary, they looked to the Wife.
 
Passive Euthanasia can be legally questionable?
–         Where treatment is withdrawn before a dispute is resolved between competing interests OR where prosecution believes that family members wrongfully withdrew life support,
–         Criminal homicide is a possibility. Why? Because it was not voluntary.
 
 
Active Euthanasia?
 
–         Affirmative act on the part of the physician or other third-party that causes a person’s death. (e.g giving the patient a lethal injection).
–         Illegal everywhere even when it is voluntary.
 
Physician assisted Suicide?
 
–         Doctor provides the means for the patient to end their own life but the patient performs the last act. (e.g physician writing a prescription for a quantity of medication sufficient to kill the patient, knowing they intend to use the medication to end their life).
–         Oregon legalized it.
 
 
PREMEDITATION – raised by Barber.
 
–         Elevates a murder classification to first-degree murder.
 
Act/Omission in the lifeboat case?
 
–         They did not have a choice – The intent was there it was merely who to kill one or all?
 
Legal responsibility for their inaction?
–         Lifeboat under a legal duty to act (the captain) – creation of danger, fiduciary duty.
–         Contractual relationship.
–          Part of the contractual understanding was to draw lots.
 
Conjoined twins also Act/omission?
–         No criminal action if they omit to save jody?
–         Duty to provide surgery to save her life as drawn from the contract.
–         Also a duty for Mary – however does not relieve the obligation to Mary.
 
 
 
VOLUNTARY PASSIVE EUTHANASIA
 
Barber v Superior Court
 
Facts: Had a heart attack after surgery. Doctors placed him on life support
 
Issues: Was the removing of life-support an Act drawn from the contractual duty to provide treatment to a patient? Who is to determine whether or not to provide or continue medial treatment when the patient cannot communicate their wishes?
 
HELD:
 
A physician has no duty to continue treatment once it proved to be ineffective.
 
The cessation of life – support was not an affirmative Act, as it was comparable to withholding the manually administered injection or medication. 
 
On providing medical treatment? Usually the medial diagnoses and prognoses must be determined by the physicians. However, whenever possible, the patient should decide.
 
There is no clear authority on the issue of who and under what procedure, the final decision rests.
 
Here the wife provided the voluntary element; she articulated the interests of her husband.
 
 
 
 
 
DUTY TO ACT – DRAWN FROM THE SPECIAL RELATIONSHIP?
 
COMMONWEALTH V RAPOSO
 
 
*1108 IV. THE FACTS
Maria Raposo was the mother of a mildly retarded daughter. [FN38] Her boyfriend, Manuel F. Matos Jr., [FN39] had lived with the defendant, Maria Raposo, and her daughter for approximately two months prior to M

to commit).
–         Need active interest – sold the phones at a higher rate. No benefit from the commission of the offense.
 
Raposo
–         She knew her boyfriend was to do it.
 
Serious Crimes Exception?
 
– Although they did not take an active interest in it, did it fall under the serious crimes exception to the knowledge rule
–         eg. Fertilizer seller knew that tim mcphey was using the fert to kill.
–         Special interest in it? Did he conduct most of his business with him or charge a higher rate for the fertilizer when dealing with Timothy Mcphey?
 
But Rape is also serious?
–         yes – thus a problem with the case.
 
Raposo?
 
–         ACT requirement – guilty as an accomplice for her omission to act where there was a duty to act – Duty was a special relationship
–         What was the omission? Failed to prevent the rape.
–         Therefore it constitutes intent. The legislature was aware of the long history of the offense.
 
HELD: 1. The Act requirement was not satisfied. The omission exception did not hold.
 
Held: 2. On Mens Rea: Knowledge itself does not constitute intent. Further, it also required that she intended to facilitate the rape itself. Mere omission to act in this case did not aid the principal in the offense.
 
 
 
Barber and Raposo Cases – Act/omission problems?
 
–         Writing order to do it this action.
–         Written in the common law and thus the legislature had the intent to implicate those who did not act in the face of a duty to act?
 
 
NOTE 5 pp.55-56.
 
 
 
CULPABILITY
 
–         Strict liability and public welfare vs culpability.
–         How do you determine culpability and the extent of it?
 
MPC – merely guidelines – influential lawyers/scholars.