Wednesday, February 5, 2014
Most observers agree that it is morally worse to cause harm by engaging in an act than to contribute to producing the same harm by an omission. As a result, American criminal law punishes harmful omissions less than similarly harmful acts, unless there are exceptional circumstances that warrant punishing them equally. Yet there are many cases in which actors cause harm by engaging in conduct that can be reasonably described as either an act or an omission. Think of a doctor who flips a switch that discontinues life support to a patient. If the patient dies as a result, did the doctor kill the patient (an act) or did he let the patient die (an omission)?The majority of legal scholars and philosophers believe that disconnecting life support is an omission, even if flipping a switch amounts to a willed bodily movement that is most obviously described as an act. Others have argued that these cases demonstrate that the act/omission distinction collapses in borderline cases. In contrast, this Article argues that these cases are best described as “actmissions” that are less blameworthy than actions yet more blameworthy than omissions. The person who causes the death of a another by pressing a button that discontinues life support engages in conduct that shares certain important features of actions (willed bodily movement) and omissions (failure to continue to provide medical treatment). The same is true of the person who begins rescue (throws a rope to a fellow climber) and then engages in an act that terminates rescue (cuts the rope). The full import of such conduct cannot be grasped until the simultaneous omissive and active nature of such fact patterns is acknowledged. This, in turn, helps explain why both the passive euthanasia cases and the duty to rescue tort cases remain controversial despite the fact that courts have framed them as cases of mere omissions to continue life saving measures.