Criminalizing Omissions in Law: Duties to Act, Knowledge Limits, and Causation Risks
Introduction
Every country has some law or statute regarding omissions, which are identified as duties to act, to care, and to rescue, among others. In most cases, however, the laws are very lenient and do not obligate a person to assist those in need or even those in mortal danger, except in particular instances (LaFave, 2017). Some of these instances include being in a close familial or working relationship with the person in need of help, being bound by contract or statute, having created the danger, or having voluntarily assumed care (LaFave, 2017). At the same time, there is a growing demand in society for the further criminalization of omissions and the enforcement of moral duties to act and help. Doing so, however, is associated with significant risks that justify the presumption against making failure to act a crime.
Omission Based on the Lack of Knowledge
One of the strongest arguments against criminalizing omissions is based on a lack of knowledge. In many instances of failing to act, the person in question lacks knowledge of the situation. For example, a child may have a dangerous health condition that the parents are unaware of (LaFave, 2017). Some diseases do not exhibit symptoms until it is too late. It would be wrong to persecute the parents for failing to act against something they did not know was occurring.
Similarly, it is faulty to accuse individuals who fail to report a crime if they did not know that a crime was occurring in the first place (LaFave, 2017). The risk of criminalizing omissions based on knowledge is obvious, as it would result in punishing many people who, objectively, have no connection to whatever incident occurred.
Omission Based on the Possibility of Performing the Act
Most laws on omissions agree that individuals should strive to lend assistance, so long as it does not endanger their own or other people’s lives in the process. The risk of criminalizing people who failed to act in this situation lies in the apparent injustice of indicting them. If a person is unarmed, it is wrong to demand that they try to stop an armed robbery or a mugging.
The same applies to situations where one is hopelessly outnumbered. Likewise, a father cannot be required to save a child or another family member if doing so requires sacrificing the lives of other people (LaFave, 2017). Not going into a burning house to save someone, while being put in danger of choking or getting engulfed in flames, likewise, should not constitute a crime. Thus, criminalizing this particular area of omission ought to bring more damage than good.
Omission Based on Causation
Causation in relation to omission is a contentious topic, as it is not always easy to determine whether an omission occurred, and even if it did, whether the action of the other party would have prevented the harm to the person in question. For example, if a child is hit by a train, it could be constituted not only as their parents’ failure to act, but also as the very concrete cause of being run over (LaFave, 2017). And even in a relatively clear-cut situation such as this one, omission may not always be obvious – a child could have gotten away from a parent holding their hand. In other situations, affirmative action may prove pointless – an attempt to rescue the victim of an assault may still result in death from sustained injury. The risk here lies in the vagueness of the situations in question and the difficulty in proving one’s innocence or guilt.
Conclusion
As demonstrated in this paper, criminalizing omissions poses significant risks of punishing innocent people, while also increasing the burden of due process and legal hearings. The existing laws, which are relatively lenient and assume the presence of duties to care, act, and protect, only in the most clear-cut scenarios, are preferable to the alternative. While not always perfect, they seek to err on the side of innocence, rather than guilt.
Reference
LaFave, W. (2017). Principles of criminal law (3rd ed.). West Academic Publishing.
