Alexander L. Ledbetter*
The full text of this note can be found in PDF form here.
Criminal liability based on a failure to act, otherwise known as an omission, first requires a duty to act. Yet, when the criminal statute does not expressly provide for liability based on an omission, courts in this country have looked elsewhere in the law to construct a duty to act. However, such novel statutory construction by the judiciary runs afoul of the Constitution and due process.
The Due Process Clause requires that before criminal liability may be imposed for violation of any penal law, due process requires “fair warning . . . of what the law intends.” “The fundamental requirement fixing criminal responsibility is knowledge, actual or imputed, that the act of the slayer tended to endanger life.”4 The principle concern is that at the time of the defendant’s conduct that the statute made it clear that such conduct is criminal. When the statute fails to do so, fair notice and due process issues arise. A national epidemic has been created by courts around the country imposing criminal liability based on a failure to act when the statute with which he or she is charged does not expressly provide for a legal duty to act. Courts have imposed criminal liability upon defendants for failure to act in caring for their children, elderly parents, and in drug overdose deaths where the victim purchased drugs from the defendant. Together, we must eliminate all consideration of mere moral obligation and discover whether one is under a legal duty towards another human. Before criminal liability can be imposed, the criminal code, pursuant to due process, must state with particularity the conduct to be penalized.
In 1979, the Missouri Legislature established the Missouri Criminal Code, a compilation of the criminal laws within the jurisdiction. In deciding whether something is criminal within the State of Missouri, one must look to the Criminal Code. Section 556.026 provides that “no conduct constitutes an offense . . . unless made so by this code or by other applicable statute.” Thereafter, in Chapter 562 entitled “General Principles of Liability,” the Missouri Legislature articulated the basis of criminal liability as based upon a “voluntary act.” Voluntary act is defined in subsection two as “(1) a bodily movement performed while conscious as a result of effort or determination; or (2) an omission to perform an act of which the actor is physically capable.”
Lastly, subsection four established that “a person is not guilty of an offense based solely upon an omission to perform an act unless the law defining the offense expressly so provides, or a duty to perform the omitted act is otherwise imposed by law.”
This paper will examine a recent case decided by the Missouri Court of Appeals for the Eastern District of Missouri entitled State v. Gargus. The Missouri Court of Appeals imposed a duty to aid another human upon the defendant, Linda Gargus, based upon an omission, or a failure to act. The effect of the decision is the introduction of civil tort negligence liability upon criminal law. Part I will set forth the factual and procedural background, the court’s analysis in Gargus that led to the imposition of a duty, and examine how other jurisdictions approach this similar issue. In Part II, I will raise and examine the due process issues when criminal liability is imposed without sufficient notice. Lastly, in Part IV, I will look to how Gargus has been applied and propose the potential fallout from the opinion.
Generally, this paper seeks to examine the constitutional issues and implications of holding someone criminally liable for an act or an omission when the statute does not expressly enforce such a duty. This paper intends to establish that the Missouri Court of Appeals ultimately misapplied the law and misconstrued the applicable statutes. The main inquiry here is whether it is constitutional to impose a legal duty to perform an act when the failure to perform that act is not expressly provided by the statute.
*Alexander L. Ledbetter is a J.D. candidate, 2017, Saint Louis University School of Law.