Omissions Made Criminal by Statute

Omissions Made Criminal by Statute

Section 2.01(3) leaves two routes to liability for a failure to act, and the first is the simpler. An omission suffices when it is "expressly made sufficient by the law defining the offense."¹ The legislature has written the failure to act into the definition of the crime itself, so the offense states what must be done and treats not doing it as the wrong. Because the definition already identifies the obligation, nothing needs to be borrowed from tort law, a contract, or a family relationship, and the prosecution has no separate duty to find.

Failure to file an income tax return is the standard illustration, since the law expressly states that failing to file is a crime.² The federal tax statute, 26 U.S.C. § 7203, requires income earners to pay estimated taxes, file returns, and keep certain records, and a person who fails at any of these tasks can be prosecuted and fined.³ A taxpayer who does nothing by the deadline has therefore completed the offense by doing nothing: the failure is the conduct element, and no injury to anyone else needs to follow. Laws that make it a crime for certain covered professionals to omit reporting signs of child abuse work the same way.⁴ Each statute singles out a group of people positioned to act and states exactly what they must do.

Defining an offense as an omission has two practical advantages, and each explains why legislatures use this route. The first is notice: a person subject to the statute can read the precise obligation and the penalty for ignoring it, so no one has to guess whether a moral expectation has hardened into a legal command. The second is compliance. The threat of punishment attaches directly to the obligation, so the law can secure the filing or the report before any harm occurs, instead of waiting for a harm that a court must then trace back to someone's inaction. A court applying such a statute also has nothing to infer about when inaction is punishable, because the legislature has already said so. Regulatory law shows the same pattern at larger scale. In Morrissette v. United States the Court traced the growth of such offenses to an era when machinery, traffic, crowded cities, and mass-distributed food and drugs led lawmakers to heighten the duties of those in control of particular trades and to enforce them with criminal penalties, many of them aimed at neglect where the law requires care or inaction where it imposes a duty.⁵

Two limits still apply under this first route. The person must have been physically capable of doing what the law commands, as § 2.01(1) requires for every omission, a limit taken up in a later section.⁶ The omission also remains conduct that is ordinarily joined to a culpable mental state, so the statute's own terms and the general mental-state rules decide what must be shown about the person's state of mind.⁷

The contrast that matters for the rest of this chapter is between an offense defined as an omission and an offense defined by a result. A tax statute describes a failure to act, so the text of § 2.01(3)(a) is met by the definition alone. Homicide describes causing a death and says nothing about failing to act, and the omission issue most often arises under offenses of that kind.⁸ A result offense does not become an omission offense merely because the result followed from inaction, so a person who lets another die has not satisfied the first route and needs the second. A Hawaii case shows how the second route can work. In State v. Cabral, a Hawaii appellate court read a statute requiring a person at the scene of a crime who knows a victim is suffering serious physical harm to obtain aid, if that can be done without danger, to reach perpetrators as well as bystanders, so that a perpetrator who abused a child could be guilty of homicide for failing to aid.⁹ The aid statute supplies a duty, and homicide supplies the offense. Where such duties come from, when the offense itself does not mention failing to act, is the question the next section takes up.