Causation and Harm as elements

By | September 22, 2021
Causation and Harm as elements

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This article titled ‘Causation and Harm as elements’ is written by Nilanjana Banerjee and discusses their importance as the elements of a crime.

I. Introduction

Criminal acts have three elements and two of them are sine qua non for every crime. An act comprising of criminal act and intent are at times also known as ‘conduct’. Model penal code defines conduct as “an action or omission and its accompanying state of mind”. The element of causation and harm is an attendant circumstance of such crime which requires a bad result. If there is a bad result, the prosecution has to prove these additional elements of causation and harm.

Criminal acts must be voluntarily and controllably done i.e. it should not be solely based on the defendant’s thoughts. At times an omission also classifies as a criminal act, while at other times no explicit act is necessary to qualify as a crime like possession of illegal materials. There are three situations where omission can be classified as a crime. Those three are duty to act based on any statute, duty based on any contract or based on the special relationship.

Criminal intent is another significant element in grading crimes. The intent is basically classified into two segments i.e. general intent and specific intent. The general intent is doing any act which may give rise to an inference of a criminal act while specific intent is a higher level of awareness. When the crime requires a bad result, it has to be established that the defendant or his acts are the cause of the victim’s injury. The cases are further classified into different types. All of such types and other intricacies will be discussed in detail subsequently.

II. Criminal act element

A criminal act, also called actus reus us defined as any unlawful bodily movement. The act should have been performed voluntarily or controllable act. Model Penal Code while elaborating which acts are not considered voluntary gives certain examples. Some of them are reflexes, convulsions, bodily movement during sleep, hypnosis, conduct during unconsciousness. Moreover, it says that even one voluntary act is enough to fulfil the requirement. In the case of Government of Virgin Island v. Smith[1], the court has said that even if the voluntary act is followed by an involuntary act, the court can impose criminal liability.

Moreover, the defendant’s status is not any criminal act, but if the government chooses to punish such a person, then it is punishing the defendant for an involuntary task (which is outside his or her control). In Robinson v. California[2], US SC had held that it is unconstitutional and cruel to punish someone for their status.

There is an exception to the criminal act too i.e. omission to act. Failure or omission to act is a criminal act only in three situations. Those three are-

  1. When the statute creates a legal duty
  2. When a contract creates a legal duty
  3. When there exists a special relationship between the parties and create a duty to act.

III. Criminal intent element

Mere thoughts of criminal acts cannot be punished but mental element forms a very essential part of criminal conduct. The criminal law element of ‘intent’ is ranked in different orders. They are malice aforethought, specific intent and general intent. The malice aforethought is special common-law intent designed got murder only. The definition of the term is ‘intent to kill and it is considered to be the highest intent of all intents.

Thus the crimes with such intent demand severe forms of punishment. Specific intent is considered to be the highest level of intent other than that of murder. It means the act of the accused shows a higher level of awareness and sophistication. The general intent is much less sophisticated. In this, the defendants act with the intention to do something wrong but not with a desire to bring a certain grave result[3]. It is comparatively easier to prove.

The model Penal Code divides criminal intent into four states of mind. They are- 1) purposely, 2) knowingly, 3) recklessly and 4) lastly negligently.

Purposely represents specific intent. It shows that the defendant acts to result in a certain result. Model penal code defines purposely as a “person acts purposely with respect to material elements of an offence when (if) the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature.”[4]

Knowingly indicates that the doer is aware of the nature of the act and its probable consequences. It is defined as ‘a person acts knowingly with respect to a material element of an offence when he is aware that his conduct is of that nature if the element involves a result of his conduct, he is aware of.”[5]

Recklessly is a much lower level of intent. It is defined as “the risk must of such a nature and degree that….. its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”[6]

Negligently is the lowest of all and least common. The difference between reckless and negligent is the lack of awareness. It is defined as “a person acts negligently when he should be aware of a substantial risk that the material element exists or will result from his conduct.”[7]

IV. Causation and Harm

As already stated, causation and harm are those two elements which are to be present in offences that required bad results. In many circumstances the criminal conduct results in harm done but this causation of harm should not be very rigidly determined. There are two types of causation as determined i.e. legal causation and factual causation. The factual causation is also known as ‘but for cause’.

The phrase ‘but for the cause comes’ from ‘but for the defendant’s act, the harm would not have occurred.’ The Model Penal Code explains factual cause as “conduct is the cause of a result when ….(a) it is an antecedent but for which the result in the question would not have occurred.”[8]

In simpler terms, the accused is the factual cause for the victim’s harm if it is the defendant’s acts that starts the chain of events leading to the final result. Suppose Ann and Anny get in a  fight. Ann hits Anny and she moves back. That’s when lightning struck and Anny died. It can be said that due to Ann, she had shifted back where lightning struck and she died. But it would seem unjust to punish Ann for an act (lightning) which he might have not imagined. So, Ann can be called the factual cause of Anny’s death but not the legal cause.

As per the legal cause, the accused should be the proximate cause of the victim’s harm. It means that the act by the accused should be near and closely associated with the harm caused. The Model Penal Code defines it as “the actual result can’t be too remote or accidental in its occurrence to have a just bearing on the actor’s liability.”[9] Basically, legal causation is the test of reasonability. The judge of the case should be sacrificed that when the accused did that act, he should have reasonably foreseen the consequences.

Suppose Ann and Anny got into a fight but this time they are in a warehouse. Ann hits Anny and she moves back where a big shelf with some heavy objects was kept. As Anny stepped back, the shelf fell and she died. Here, Ann is the legal cause of Anny’s death as he started the chain of activities and it was reasonably foreseeable that if the shelf falls, she might die.

Another significant sub-topic related to causation and harm is ‘intervening superseding cause’. This can be said to be another cause under factual cause. ‘Intervening Superseding cause’ talks about such situations when the chain of events started by the defendant is interrupted by someone or something. Such intervening cause usually breaks off the accused from liability due to reasonability and proximity test. If the intervening individual is interrupting with criminal intent, such person can be held criminally liable.

Suppose in the fight of Ann and Anny (in the previous example), Anny hides in the bush. But a homeless beggar finds her there, kills her and steals all her money, jewellery. Ann here is the factual cause of death cause but the beggar is the legal cause of death. Ann can be prosecuted for assault but the beggar will be prosecuted for her death.

The causal analysis is not a very easy thing to do especially in homicide cases where the victim’s lifetime is expanded using machines. Due to medical advancements, the victim stays alive on machines. The question here arises in that can the accused be made liable. To solve this rule, there are two rules i.e. ‘one year and one-day rule’ and ‘three years and a day rule’. These rules set the timeline of death to convict the accused of homicide. If the victim dies within such time limits, then the accused is convicted. However, this rule is losing popularity (said in Key v. State). Many states have abolished this arbitrary time limit. These time limits are different from statutory limitations to prosecute the accused.

Hence, in this way, causation and harm form a part of the elements of the crime. Though these are not sine qua non for every crime, they are essential for such crimes which require bad results.


[1] 949 F.2d 677 (3d Cir. 1991).

[2] 370 U.S. 660 (1962).

[3] People v. Mc Daniel.

[4] Model Penal Code S. 2.02 (2)(a),(1962)

[5] Model Penal Code, S. 2.02 (2)(b),(1962)

[6] Model Penal Code, S.2.02(2)(c),(1962)

[7] Model Penal Code, S. 2.02(2)(d),(1962)

[8] Model Penal Code, S.2.03(1)(a),(1962)

[9] Model Penal Code, S.2.03(2)(b),(1962)

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Author: Nilanjana Banerjee

National University of Study and Research in Law Ranchi

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