Criminal Omission: When Inaction Leads to Criminal Liability

In criminal law, a distinction is made between actions and omissions as a basis for criminal liability. While it is intuitively understandable that active actions can result in criminal liability, passivity - that is, omissions - raises more complex legal questions. This article highlights when and under what circumstances omissions can be punishable, and what legal principles apply in this area.

True and Constructive Omissions Offenses

Omissions offenses in criminal law are divided into two main categories: true and constructive omissions offenses.

True Omissions Offenses

A true omission offense occurs when the criminal statute explicitly targets an omission. Modern society places numerous demands on citizens to perform certain actions, and these demands are often backed by criminal sanctions. Examples of such duties to act include:

• Duty to report births, marriages, deaths, and changes of residence

• Duty for business operators to keep accounts

• Duty for homeowners to take measures against fire hazards

• Duty for vehicle owners to take out liability insurance

• Duty for employers to notify the employee register and make tax deductions

In addition, there are provisions that impose a duty on citizens to prevent harm to others, such as:

• Penal Code § 139: Duty to attempt to prevent serious crimes one knows are about to be committed

• Penal Code § 387: Duty to help persons in apparent and imminent danger to life

• Fire and Explosion Protection Act § 5: Duty to report fire and explosion

Constructive Omissions Offenses

A constructive omission offense occurs when an omission is caught by a criminal statute that is primarily directed at active actions. Most criminal statutes describe the criminal act using expressions targeting active actions, such as "causes," "takes away," "falsifies," or "compels."

The central question then becomes whether - and, if so, under what circumstances - such criminal statutes can also be violated by omission.

Can Omissions Cause Something?

A fundamental question is whether an omission can be the cause of a result. Can it be said, for example, that a mother who leaves her newborn child without food and care until it dies has caused the child's death? Or that someone who sees a cigarette butt ignite the forest floor without extinguishing it has caused a forest fire?

In legal terms, it is crucial what is meant by the law's terms such as "causes," "brings about," and other expressions of causation. Common language often recognizes the omission as a cause:

• The railway attendant's failure to give the signal has been the cause of the train accident

• The doctor's failure to bandage the wound has been the cause of the bleeding out

• The tourist's failure to extinguish the campfire has been the cause of the forest fire

The condition for considering an omission as a cause of a result is, of course, that the one omitting had the opportunity to prevent the result. But the language also requires something more - the omission will only be termed as a cause when one could have had a greater or lesser expectation of action according to the normal rules of life. It is only under this condition that the omission can explain the result.

When Omissions Can Be Equated with Actions

There is no general rule about when omissions should be equated with actions in a criminal law sense. This must be decided by interpreting each specific statute. Here is an overview of the key factors that may justify equating omissions with actions:

1. Dangerous Actions

When a person has initiated a dangerous action, they are obligated to neutralize the danger. While safety measures may need to be implemented simultaneously with the dangerous action in some cases, a subsequent neutralizing action is required in others:

• The person digging in the street must ensure marking when darkness falls

• The person who has lit a fire in the wilderness must ensure it is extinguished before moving on

• The doctor who has begun an operation must ensure that it is completed

Neglect of such duties can result in criminal liability if damage occurs and the subjective conditions for punishment exist.

A specific question is whether a person who has created a danger is always responsible if they do not intervene to prevent harm, even if the dangerous action was originally legal. Practice shows that this depends on circumstances such as:

• Whether the danger was created deliberately or inadvertently

• Whether it was created legally or illegally

• The nature of the statute

2. Supervisory Duties

a) Supervision of Property

The person having control over a property has a duty to ensure that it does not pose a danger to its surroundings. This applies to both real and personal property:

• Maintenance of stairs, elevators, and other installations

• Prevention of dangerous ice and snow slides

• Safe storage of dangerous items such as dynamite

• Control that motor vehicles are not used by unqualified individuals

• Supervision of animals which may pose a danger

b) Supervision of Subordinates

The owner of a business has a duty to supervise their employees to prevent them from committing offenses in service. In violations of regulatory statutes for business activities, actions performed by personnel in a business are often considered the owner's own responsibility.

Penal Code § 139, subsection 3 and § 347 set penalties for the superior who has failed to prevent a crime or offense committed in their service if this was possible.

c) Parental Supervision of Children

Parents have a responsibility to supervise their children. If a mother sees her small children playing with matches and does not intervene, it would be natural to hold her responsible for any resulting damage. However, parents can hardly be held accountable if they turn a blind eye to a minor son participating in a gang of thieves.

3. Care Duties

Family relationships entail not only financial obligations but also duties of personal care. This is particularly true between parents and children, but also between spouses.

Neglect of care duties can result in criminal liability under special provisions such as §§ 219, 240, and 241, but also under the general provisions on bodily harm and homicide if the subjective conditions exist. For instance, parents who, due to inadequate supervision, allow their child to fall into a well and drown may, in principle, be convicted of negligent homicide.

4. Contract

A contract itself can hardly make an omission punishable as something other than what it otherwise would be. The person who has entered into an agreement to help a person in distress but then breaches this agreement may be penalized for neglecting the duty to help under § 387 but not for homicide.

However, a contract may have significance by resulting in a supervisory or care relationship, which in turn may give rise to criminal liability. Examples include:

• The person who has undertaken to supervise the heating has the same responsibility as the one who himself lit the fire

• The nanny who is appointed to take care of the children has the same responsibility as the parents

• The one who has taken an elderly or sick person in care is responsible for fulfilling the care duties

5. Public Service Position

Many public officials have by virtue of their position a duty to prevent certain dangers to citizens. This particularly applies to the police, but also to the fire department, health services, lighthouse and pilot services.

The starting point is that neglect of such duties only results in administrative responsibility. However, if as a result of the position, a specific supervisory or care relationship has arisen, the omission can result in full criminal liability for the harm. For instance, a lighthouse keeper who does not light the lighthouse causing a ship to run aground has the same responsibility as if he had actively extinguished the lighthouse.

6. Conclusive Passivity

The world draws conclusions not only from what a person says and does but also from what they do not say and do not do. When the non-acting person is aware of the conclusions being drawn from their passivity, the passivity can function as a means of expression - so-called conclusive omission.

The question is whether such conclusive omission entails the same responsibility as a direct declaration of equivalent content. This is particularly relevant in offenses consisting of exerting psychological influence on another, such as mental co-action, defamation, false testimony, and fraud.

Rarely is it an isolated omission that forms the basis for the conclusions the other party draws. Generally, it is the omission in conjunction with a certain active conduct that is decisive. It is the overall picture of the situation and the perpetrator's conduct that forms the basis for the other party's conclusions.

Conclusion

Punishable omission is a complex legal issue where several considerations must be weighed against each other. While true omissions offenses directly target passivity, special circumstances are required for omissions to be covered by statutes primarily aimed at active actions.

The central consideration is whether the situation is linguistically included in the formulation of the statute and whether the omission is criminally equivalent to the typical cases the statute targets. Such an assessment must be made specifically for each statute, and in light of the specific circumstances of the case.

The main grounds for equating actions and omissions are prior dangerous actions, supervisory duties, care duties, certain contract relationships, public service positions, and conclusive passivity. Common to these is that they establish a particular expectation of action, making passivity criminally blameworthy.