OMISSION

Omission is the neglect to perform what the law requires. Failing to act is in itself actus reus.

OMNE ACTUM AB INTENTIONE AGENTIS EST JUDICANDUM.

Every act is to be judged by the intention of the doer. Therefore: RES IPSA LOQUITUR, thing speaks for itself.

Failure to act, criminal omission, has two aspects; failure to report & failure to intervene. Failure to report includes such acts as reporting an accident, reporting child abuse, income tax reporting, firearm registration, & H.I.V. status. Failure to intervene is the failure to prevent injuries or death to persons, or damage to property. The failure to report, and/or intervene can be criminal acts accomplished by omission.

Only if a legal duty, not just a moral obligation to act exists can omission be considered a criminal act. A legal duty creates an attendant circumstance, an element which must be proven beyond a reasonable doubt by the prosecution. There are three ways by which a legal duty can be created:

Statutes- Income Tax, Firearms, Domestic Abuse….

Contracts- Performance of an obligation, Human Service Agencies, Law enforcement, Protect and Serve….

Special Relationships- Parent-Child, Doctor-Patient, Employer- Employee,

Carrier-Passenger…. There are situations that can overlap these means, such as with A.F.C. Adult Foster Care: whereby one party contracts with an entity, usually an agency, to provide care to an individual(s) for a fee. This creates not only a contract, but a special relationship as well.

A failure to act upon a legal duty creates criminal liability. There are two approaches to intervention as an act… The Good Samaritan Doctrine and The American Bystander Rule:

The Good Samaritan Doctrine imposes a legal duty to summon or render help/aid for imperiled strangers. The American Bystander Rule puts no legal duty to act upon a stranger’s dangerous situation even if nothing is risked by helping.

In Torts, Nonfeasance can become Misfeasance, just as Misfeasance can become nonfeasance. That is to say that a failure to act can become an improper or wrongful act, just as an improper or wrongful act can become a failure to act when one fails to apply a reasonable standard to their actions. One must act with Due Care. Thus…

OMNIA RITE ACTA PRAESUMUNTUR.

All things are presumed to have been rightly done. If they are not rightly done then

RES IPSA LOQUITUR. Negligence, if not Recklessness becomes a plausible alternative for acting with Due Care.

In conclusion:

OMNIS DEFINITIO IN JURE PERICULOSA EST PARUM EST ENIM UT NON SUBVERTI POSIT.

Every definition in the law is dangerous, for there is very little that can be overthrown. I.e. There is no rule in the law which is not liable to some exception; and the least difference in the facts of a case renders its application useless. Be mindful of your own conduct in action or omission, because to act is a choice just as to choose not to act is an action.