Talk:Actus reus

Untitled

This article should have a literal translation of actus reus

It does: it is the Latin for "guilty act". David91 03:03, 3 December 2005 (UTC)

I submit that this article may need to be reworked a little to provide a more clear differentiation between actus reus and attendant circumstance. In the United States in particular, some legal scholars analyze the elements of a crime in up to three categories: the actus reus, the mens rea, and the attendant circumstance. Essentially all crimes have at least one actus reus element. As pointed out in the article, most but not all crimes have a mens rea element. Further, some crimes also have an attendant circumstance element -- which is separate from actus reus and mens rea. In my opinion, this actus reus article is conflating actus reus and attendant circumstance to some extent. Famspear 15:57, 13 January 2006 (UTC)

So, to avoid this conflation, you should consider adding an element specific to the United States. David91 04:30, 14 January 2006 (UTC)

Editorial changes

I have identified "Attendant circumstance" as specific to the U.S. To the best of my limited knowledge, no other state makes this distinction (and, frankly I do not understand it and would like a specific definition and reference to on-line sources so that I can read up on the theory). I also consolidated the results elements because it is relevant to all two/three classes and not just acts. And the second "key element" currently identified is incomprehensible to an English lawyer. Could you please provide a specific example not dependent on a mental element. The current example of driving "dangerously" is clearly mens rea related because the defendant is only culpable because he or she knows that she suffers from diabetes and, not having eaten recently, has an elevated risk of having a hypoglycaemic episode, or that the vehicle has a mechanical defect, or is driving recklessly, all of which would trigger the policy to justify criminalising the behaviour to protect the public. Many thanks in anticipation of your assistance to clarify this for non-U.S. readers. David91 02:30, 15 January 2006 (UTC)

• Attendant circumstance is a new one to me... but I don't do criminal law, and I trust Famspear's knowledge of the law based on our previous interactions. bd2412 T 03:07, 15 January 2006 (UTC)

Dear David91: I am a tax practitioner. I do not practice criminal law as such, though criminal tax law issues come up occasionally. The way I remember it from law school is roughly as follows:

1. Conduct (actus reus) (commission or omission, depending on the crime).

2. Attendant circumstance – facts and circumstances surrounding the event – not really part of the defendant’s physical act or omission.

3. Result (e.g., in a murder, the victim died).

In so-called Model Penal Code states in the USA, there are usually four possible levels of mens rea, and each statute defining a crime states (or should state) the level of mens rea required for the offense:

1. Intent (a conscious object or desire to engage in the conduct, awareness of the attendant circumstances, and conscious object or desire to cause the result). In some jurisdictions, the term “willfulness” may be used in lieu of “intent.”

2. Knowledge (awareness that one is engaging in the conduct, awareness of the attendant circumstances, awareness of the possibility of the occurrence of the result).

3. Recklessness (aware of, but consciously disregarded, a substantial and unjustifiable risk that the circumstance existed or, in the case of the result, that the result would occur).

4. Negligence (should have been aware of, but may not have been aware of, a substantial and unjustifiable risk that the circumstance existed or, in the case of the result, that the result would occur).

Notice that the mens rea element might or might not apply to the “attendant circumstances,” depending on the crime.

In the USA, tax evasion can be an example of the application of the concepts (note: the Federal tax crime statutes are not based on the “Model Penal Code”). Internal Revenue Code section 7201 provides:

Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution.

Under this statute and related case law, the prosecution must prove, beyond a reasonable doubt, each of the following three elements:

(1) the "mens rea" or "mental" element of willfulness -- the specific intent to violate an actually known legal duty;

(2) the "attendant circumstance" of the existence of a tax deficiency -- an unpaid tax liability; and

(3) the "actus reus" (i.e., guilty conduct) – in the case of this particular crime, an affirmative act (and not merely an omission or failure to act) in any manner constituting evasion or an attempt to evade either the (A) assessment of a tax or (B) the payment of a tax.

I argue that the attendant circumstance -- the existence of an unpaid tax – is not really part of the “conduct” of the offender – at least not for purposes of this criminal statute. The way I learned it in law school, “conduct” really refers narrowly to physical acts or failures to act. The following example of Mr. “Joe Baker” is illustrative.

Joe Baker is a nice guy, but he’s not very well educated, and he’s not very honest. Suppose that in July of 2005, Joe receives a large amount of cash from somewhere. Right now we don’t want to say where. Now, Joe’s tax year ends on December 31, 2005. His tax return is due on Monday, April 17, 2006. Like many Americans, he waits until about April 14th to even start thinking about preparing his return.

In a panic on April 14th, he begins thinking about taxes. If Joe Baker files a Federal income tax return, that is an affirmative act (conduct).

Suppose Joe prepares the return and reports all that year 2005 income on the return. Suppose, however, that he also knowingly takes a very large deduction for business expenses he neither incurred nor paid. Suppose that he is not legally entitled to the deduction, and that he is aware (he knows) that he is not legally entitled to the deduction -- but he takes the deduction on the return anyway, because he just does not want to show a tax liability on the return or pay a tax.

Here, the mens rea requirement is satisfied, as applied to Joe’s conduct. In knowingly preparing and filing a false return (a return he knows includes a false business deduction), he has “attempted” to evade the assessment of a tax, and he has a specific intent to break the law. He has acted willfully for purposes of section 7201.

Now, with respect to the attendant circumstance of the existence of an actual unpaid tax liability, Joe is aware (mens rea) – or at least he thinks he is aware – that there is an unpaid tax, a tax obligation he owes.

But suppose that Joe has made another mistake on the return – this one unintentional. Suppose that the income he fully reported on the return – the only income he had for the year – was, say, “life insurance proceeds received by reason of the death of the insured.” His mother had died, and he was the beneficiary of her life insurance policy. That’s how he received all his 2005 income. Under Internal Revenue Code section 101, such life insurance proceeds are not taxable. Such income is not even required to be shown on a Federal income tax return. But Joe was not aware of that.

Joe had an intent to evade tax – but his “knowledge” of the attendant circumstance (existence of a legally owed unpaid tax) was faulty.

Indeed, there really was no attendant circumstance. He did not really owe a tax, because the income he received was not really taxable. He did not need to falsely claim a deduction to reduce his taxable income, and his tax, to zero – because the tax already was zero. Under these facts, Joe has not violated section 7201 – even though he intended to do so. In fact, the zero amount for tax he showed on the return was the correct amount under the law.

(Joe has willfully filed a false return, however, and that is a tax crime in the USA, even if no tax was due – it’s separate from tax evasion.)

In this situation, I argue that the existence or non-existence of the attendant circumstance (non-existence of a tax liability) is separate from and has nothing to do with Joe’s conduct in filling out the forms, signing them, and mailing them. In this sense, I argue that there is no redundancy in talking about "conduct" as being separate from "attendant circumstance." The non-existence of the attendant circumstance -- an actual unpaid, legally owed tax -- was based only on the fact that the income he happened to receive simply was not taxable under the law in question. The nature of the non-existence of the attendant circumstance was fixed by (A) the applicable law, (B) the fact that his only income was a life insurance benefit, and (C) the fact that the tax year had closed (i.e., on December 31, 2005). All the facts making up the attendant circumstances were fixed long before April of 2006, when he began his conduct -- thinking about evading the “tax” and began his “conduct” of preparing, signing and filing the tax return. Yours, Famspear 05:33, 15 January 2006 (UTC)

This always happens when one expert talks to a person with a different expertise. I apologise for setting the hare running. I have made a detailed response to this at Talk:Attendant circumstance. Unfortunately, it would appear to ignore the second question specific to actus reus. Please supply an example of a "key element" that is not dependent on a consideration mens rea evidence because your example of dangerous driving appears to me to be defective for the reasons given above. David91 06:47, 15 January 2006 (UTC)

I am an English lawyer too. I realise that many law schools still use a binary (actus reus, mens rea) division of the elements of a crime, but the way I was taught - and it is a reasonable way to analyse crimes - is into three elements. The additional element sounds like the "attendant circumstances" being discussed here. A good example is "being found drunk in a public place". That requires no act or intention on the part of the defendant. Our lecturer gave the example of someone who was carried (by police I think) while asleep (but drunk) into a public place and there arrested for being found drunk in a public place. This is a very clear example of something which is not an act or a mental element of a crime. Francis Davey (talk) 16:58, 17 November 2013 (UTC)

First Assesment

Given a B as not many links included as readablility and detail could be imporved. High importance, cournerstone of criminal law. Bamkin 19:47, 17 May 2007 (UTC)

Vagina and consent

The following appears:

Commentator Dennis Baker asserts: "Although lawyers find the expression actus reus convenient, it is misleading in one respect. It means not just the criminal act but all the external elements of an offence. Ordinarily, there is a criminal act, which is what makes the term actus reus generally acceptable. But there are crimes without an act, and therefore without an actus reus in the obvious meaning of that term. The expression “conduct” is more satisfactory, because wider; it covers not only an act but an omission, and (by a stretch) a bodily position. The conduct must sometimes take place in legally relevant circumstances. The relevant circumstances might include consent in the case of rape. The act of sexual intercourse becomes a wrongful act only if it is committed in circumstances where the vagina does not consent. Other crimes require the act to produce a legally forbidden consequence. Such crimes are called result crimes. ... All that can truly be said, without exception, is that a crime requires some external state of affairs that can be categorized as criminal. What goes on inside a person’s head is never enough in itself to constitute a crime, even though it might be proved by a confession that is fully believed to be genuine

Clearly a vagina can't consent (since it is a part of the body). This quote is rather long (possibly too long to be defensible in copyright law in England and Wales anyway). I am not sure it is helpful to have such a long quote in this context either. However, I don't have the source to check the "vagina" point. Can someone who does please check that is there or amend. Francis Davey (talk) 17:03, 17 November 2013 (UTC)

Table of Contents

Why is there no table of contents for this talk page? Seraphim System (talk) 01:22, 9 April 2017 (UTC)

The table of contents only appears (automatically) once there are 4 section headings on the talk page. See H:TOC for more explanation. - Cameron Dewe (talk) 01:11, 23 April 2023 (UTC)

Globalize tag

I added a Globalize tag because this concept is not just relevant to United States or English law, but is relevant in jurisdictions around the world. The article should explore how this concept is relevant in other countries, and give relevant explanations and examples, too. This would make for a globally relevant article. There should be examples from all the criminal jurisdictions mentioned in the lead section. The lead section should provide an accessible overview of the topic, so if something is mentioned in the lead section it should be covered in the body of the article, too. - Cameron Dewe (talk) 01:05, 23 April 2023 (UTC)