New York Law School Law Review Volume: 29 Issue: 1 Dated: (1984) Pages: 101-124
This paper details the elements of law that assign criminal liability when failure to perform a legal duty is the proximate case of a harm whose perpetration is sanctioned in criminal law, such as when parental neglect is the proximate cause of a child's death.
Criminal omission is based on the theory that failure to perform a legal duty when one has the capacity to do so is a substitute for the commission of a defined offense when the harm done is the same. The causation requirement is essential to proving criminal omission. This prescribes that a person's omission have the intent to cause and be the proximate cause of the proscribed harm. The establishment of criminal omission also requires that the proximate cause of the harm was the failure to perform a legal duty (failure to perform a moral duty alone is not sufficient for liability). Sources of legal duty are duty based upon (1) relationship, (2) being a landowner, (3) contract, (4) statute (other than the offense charged), (5) the voluntary assumption of responsibility, (6) creation of peril, and (7) rescue responsibility. Further, the capacity to perform is an essential aspect of criminal omission. This involves being physically capable of performing the legal duty without greatly endangering oneself or harming other interests. A total of 125 footnotes are provided.
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