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Univ. of San Diego School of Law

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Friday, December 17, 2004

Acts and Omissions

Vaseal1 In Mangano v. Commonwealth, the Court of Appeals of Virginia reversed a conviction of child abuse where a father supervising children failed to prevent one from shooting another with a gun.  The case nicely illustrates the difficulty in distinguishing between acts and omissions, and the requirements for establishment of actus reus based on an omission.  Here, the father saw his son with a rifle (which had been kept handy because of the D.C. sniper attacks) and told him to put it away; instead, the boy (who had taken a firearms safety course) accidentally shot his friend.  The court explained that not every omission would substitute for a positive act, and concluded that there was insufficient evidence that the defendnt knew of a danger requiring action.  Accordingly, while there was an omission, it was not willful, and thus could not be the predicate for criminal liability.  One could argue that the defendant did act, by telling his son to put the gun away, and the question is whether that action was sufficient to discharge his duty to act.  (The duty in this case could arise from being a parent, from voluntary assumption of a duty to supervise the other child, from being a host, or from being a risk-creator by owning a gun accessible to children.)  A Virginia statute criminalizes allowing children to use guns unsupervised, but it applies only to children 11 and under. [Jack Chin]

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