On the So-Called Requirement for Voluntary Action,

Abstract

It is often said that there must be a voluntary action by the defendant before she may properly be convicted of any offence. In this paper, by contrast, it is argued that action is a dispensable requirement of moral and criminal responsibility. It is sometimes permissible to penalize D without his being an agent in respect of his behavior. Similarly, it may be acceptable on occasion to impose liability for an omission or state of affairs without requiring a positive act by D. In such cases, action is unnecessary. Instead, it is essential to show that the actus reus is voluntary. On the account presented here, moral and criminal responsibility is denied when the actus reus is involuntary -- when the defendant is unable deliberatively to control her behavior so as to prevent the actus reus from occurring. The paper traces the ramifications of this approach for criminal law doctrine, describing two types of cases where control over behavior is lost, as well as the "defence" of impossibility. Philosophical analysis is also considered. Nonetheless, culpability is not by itself sufficient for criminal responsibility. The paper closes by noting that a requirement for action is ordinarily justified by considerations of autonomy.