This is a question of curiosity, not a request for specific legal advice.
A crime of omission is one in which the essence is that it is illegal NOT to do something, in that the law imposes a positive duty on the person to do something, and if they do not, they are guilty of an offense.
In the US, or another common law country, is it possible for a person to be guilty of an ATTEMPT to commit a crime in which the crime is one of omission? E.g. could a person be found guilty of “Attempted failure to register as a sex offender” if, for example, they THOUGHT that they were required to register as a sex offender and that they were breaking the law by not registering, but under the law operative at the time, they were not, in fact, required to register, or, alternately, in the case in which they were actually required to register, they simply sent the local police HQ a postcard with their name and address, believing that to be insufficient to comply with the law, however it turned out it was, technically, all that they needed to do.
Other hypothetical “attempted omissions” could be “Attempted failure to appear in court”, “Attempted failure to provide medical care for a dependent child”, or “Attempted failure to report a death”.
Are there any statutes or case law that would indicate that such crimes legally exist?
The gravamen of the inchoate crime of attempt is that you have an intent to complete the crime, you take some substantial step in furtherance of that objective, but do not actually complete the crime for some external reason.
In my view, it’s not possible to reverse that rule to make it apply to a crime of omission.
One question I would raise, however, is in relation to negligence. Is it possible to be guilty of an attempt that if successful would have been criminal negligence? For example, consider the case discussed recently of the woman who killed her husband under the misapprehension he was a bear. If she had discharged a firearm with intent to kill the ‘bear’, but missed hitting and killing her husband whom she thought was a bear – she’d be guilty of the rather minor crime of illegally discharging a firearm, of course, but would she also be guilty of attempted criminally negligent homicide? Could a DA make a case for that accusation?
Here’s a hypothetical. Let’s say somebody tells you they committed a serious crime. You listen to their statement and find it credible. But you do nothing about it and do not report it to the police or anyone else despite having opportunities to do so. That’s misprision of felony in some jurisdictions, the crime of omission in not reporting a felony you did not commit but have knowledge of.
Later it turns out that the guy was just bullshitting you and had not committed the crime he claimed he had. So with no actual felony having been committed there was no actual crime for you to have reported. But you believed that a crime had been committed and you chose not to report it, so I’d say you committed an attempted crime of omission.
I’m not so sure. What if the crime is failing to commit some physical act in a particular circumstance. You are in the particular circumstance, you intend not to commit the physical act, you take a substantial step designed to distance yourself from the ability to commit the physical act but in doing so an external reason causes you accidentally to commit the physical act you are required to take.
So say the crime is failing to stand when the Big Cheese enters the room. As a pointed political statement, as he enters the room you deliberately try to sit down, but sit on a thumbtack and jump to your feet.
What if you’re in court under oath, or talking to an FBI agent and try to lie by omission-- but under cross examination, or by an inadvertent slipup, you reveal the crucial detail you were trying to conceal?
Okay, here’s a possibility. The Offences Against the Person Act of 1861 in the UK makes it a crime of omission for a person who’s been taken into police custody to not declare if they have a weapon on their person. Suppose a person thinks he’s carrying a knife in his boot and he’s arrested. He does not tell the police the knife is there. But unbeknownst to him, the knife had in fact fallen out of his boot right before he was taken into custody and the arresting officer observed this.
So the police would be aware that the suspect thought he had a knife on his person and was attempting to conceal it even though in actual fact he did not have a knife.
Arguably that wouldn’t make a difference. Your intent was to not report what you believed was a crime. The fact that no actual crime existed does not alter your intent.
It’s analogous to trying to shoot somebody with an unloaded gun that you thought was loaded. Your intent was to shoot the person so it counts as an attempted murder even though it was physically impossible to commit the act as you planned.
I’m not much of a criminal lawyer but there are as I understand it usually both mental element/s and objective element/s required to form the offence. In your latter example the objective elements are there but the effect is foiled by an external problem. In your earlier examples you have only the requisite intent. The objective elements just don’t exist. There is no knife, there is no felony.
For the shooting element it would be more like trying to shoot somebody who doesn’t exist with an unloaded gun that you thought was loaded.
It seems that there are really two questions in the OP:
In the first hypothetical there is in fact a legal duty for a person to perform an act, and the person intentionally tries to not perform that act, but for reasons beyond the person’s control, the act is performed. Is there a crime here?
In the second hypothetical, there is in fact NO duty, but the person thinks there is, and the person intentionally fails to perform the act. Again, the question is whether there is a crime.
IANAL, but work with them, and IMO the answer is clearly ‘No’ in the second case (except perhaps in some very convoluted situations regarding fraud or fiduciary duty or something, where the actual charge wouldn’t have to do with the imagined law, but the law regarding fiduciary duty). No law to be broken, no crime.
In the first case, if there’s a statutory ability to charge ‘attempted X’, then it seems possible to charge Attempted X, even if X describes a failure to perform rather than committing an act.
I recall that “Good Samaritan” law on Seinfeld’s finale which got the whole gang tossed in jail when they didn’t help a mugging victim-is there anything like that in real life?
That’s not a Good Samaritan law. A Good Samaritan law is a law that covers people for liability if they’re trying to assist another person. For example, if you see someone choking and perform the Heimlich manuever on them, you can’t be sued if you break their ribs.
The term you’re thinking about is a duty to rescue. That’s a law that requires people to intervene in an emergency situation if they are able to do so without endangering themself. Laws like this are very uncommon in American or British law.
Many people dealing with children (teachers, doctors, nurses, social workers) are classified as “mandated reporters”, meaning that there is a specific law requiring them to report to authorities any actual or even suspected child abuse. Failing to do so is a crime for them; they can be arrested for it. Even if not actually arrested, they will certainly get in trouble with their employer, and could have their professional licenses pulled.
You make a valid point. The examples I gave would be in the second category. I’m trying to think of a semi-realistic example of how somebody could do the first hypothetical but I’m coming up blank.
What’s more common is for someone to fail to report signs of child abuse, then someone else reports it, and it is revealed that the first person knew, but failed to report.
This used to happen, and the first person’s defense would be that they did not think those marks were actual signs of abuse, just normal childhood injuries. Now, the mandated reporter laws in most states eliminate this defense, by requiring the report even if the reporter does not believe it indicates actual child abuse.
No. The mental state for an attempt is categorically higher than negligence, and so you can never fulfill the intent element for attempt if you’re behaving negligently.
As Bricker said, to be guilty of attempt you need the specific intent to complete the crime in question (plus the other elements), which means you can only attempt a crime that requires specific intent in the first place. Since negligence is by definition something that you can’t intend to commit, you can never attempt it. Either your conduct fits the definition of some intentional crime (i.e. some form of intentional murder in your example) or there’s no possibility of attempt.
I would say, though, that there’s no reason there a crime of omission can’t be attempted, provided the statute is written to allow it. There aren’t that many crimes of omission to begin with, which makes examples hard to conjure up, but I think we can. First, though, we have to make a distinction about impossibility because it’s come up a couple of times. Factual impossibility is not a defense to an attempted crime; this is the situation where a person wants to commit a crime and does everything he needs to do to complete the crime, but some circumstance he isn’t aware of prevents him from being able to complete it. This is Little Nemo’s unloaded gun example - you point the gun, you pull the trigger, you intend to kill somebody, and if things went the way you wanted them to, you’d kill somebody, but you don’t actually. That’s an attempted murder.
Legal impossibility is different, and can be a defense. Legal impossibility is when a person wants to commit a certain action and does all the steps necessary to perform that action, but some external circumstance makes it so the thing he’s trying to do isn’t a crime. If you thought it was murder to shoot a dude in a video game, so you aimed at him and fired, technically you were attempting a murder, but since unbeknown to you killing in video games is legal, you’re in the clear. Likewise, if you tried to sneak up behind somebody in an alley and stab the crap out of them, except it was a trash can and not a person, you’re not guilty of attempted murder even though you wanted to kill somebody and tried to do so.
Those two categories blur in the middle considerably, and it’s not the clearest distinction in the world in any event, but the idea of impossibility is the explanation for a lot of the examples given so far.
Back to the OP: since what you need for an attempt is the intent to commit the crime, plus some act that places you sufficiently proximate to actually committing the crime (you have to “cross the Rubicon”), all we have to do is think about what actions a person would have to undertake to commit himself definitely to an omission, and I don’t see why somebody couldn’t do that and still fail to complete the crime somehow. Let’s say a nurse makes some sort of examination of a patient which gives an objective, recordable result that indicates that the patient will die without some sort of intervention. The nurse, because she hates this patient and has been waiting for him to die, takes the record of this information, leaves the room, clocks out for the day and walks out of the hospital without saying anything to anybody. As the nurse is leaving the parking lot, a doctor runs out in front of the car and waves her down, and demands the results and threatens to fire her if she doesn’t turn it over. So she gives him the results, which the doctor then uses to cure the patient. I think that’s every bit an attempt by the nurse to commit a crime of omission by withholding critical medical information.
