Criminal Law in a Nutshell by Arnold H. Loewy

Author:Arnold H. Loewy
Language: eng
Format: epub
ISBN: 9781640201934
Publisher: West Academic
Published: 2020-10-15T00:00:00+00:00

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Chapter IX

Actus Reus

§ 9.01

Introduction

Actus reus, like mens rea, is normally a requisite for criminal liability. Literally, the term “actus reus” means guilty act. This has caused legal theoreticians to attempt to define what is meant by the term “act.” Some theoreticians contend that an act is simply a voluntary muscular contraction (e.g. crooking one’s finger) whereas others contend that it also requires a set of circumstances (e.g. finger on the trigger of a loaded gun with the victim’s heart at the end of the barrel) and a consequence (e.g. death of the victim). It seems unwise to dwell too long on this somewhat metaphysical debate in that it is clear that both criminal circumstances and consequences are requisite to criminal responsibility. Inasmuch as actus reus means guilty act and not simply act, it is probably easier to conceptualize actus reus as including circumstances and consequences as well as muscular contractions.

The classic justification for the actus reus requirement is the undesirability of punishing one merely for her thoughts. Until a person actually does something, we have no objective proof of the firmness of her criminal thoughts (after all, who among us hasn’t at one time or another had a criminal thought, such as murdering her criminal law teacher). Nevertheless, the requirement should not be overstated. In attempt, for example, the actus reus requirement is satisfied by muscular contractions 162

that merely come close to causing social harm (§ 14.03 infra). And in conspiracy, the mere act of agreeing (at least in some jurisdictions) is sufficient (see § 16.05 infra). Indeed, in some cases a failure to act will suffice (see § 9.06 infra).

§ 9.02

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