Abstract

Last year marked the first time that a student’s parents were held criminally liable for a school shooting. Neither pulled the trigger; rather, James and Jennifer Crumbley were convicted, at least in part, for what they didn’t do.

What they didn’t do was egregious: they didn’t seek professional help for their son despite appalling warning signs and his own pleas for medical attention; they didn’t withdraw their son from school mere hours before the tragedy, ignoring the entreaties of his counselor; and they didn’t bother to secure his gifted handgun.  Each detail is more devastating than the last.

The jury deemed the Crumbleys’ failures so reprehensible as to be criminal. In doing so, the jury concluded that these failures causally contributed to the tragedy of the Oxford High School shooting. This finding is both important and intriguing: important because expanding criminal liability for inaction extends the reach of criminal law; intriguing because, typically, one thinks of actions, rather than inactions, as causes of outcomes. 

This article aims to elucidate questions, both legal and philosophical, concerning criminal liability for inaction, formally known as omission liability. In particular, this article aims to show that a person’s omission liability for a victimizing outcome does arise, legally, and should arise, normatively, only as a consequence of that person’s prior commissions, wherein those commissions are causes-in-fact of the victimizing outcome.  

The first half of this article reviews the status of omission liability in criminal law. It aims to reveal the prevalence of this article’s thesis in criminal law precedents. The second half of this article argues that the approach taken by courts is just and preferable to other standards of omission liability. In doing so, it aims to answer both doctrinal and normative challenges. 

Keywords

Criminal Omission Liability, Babcock, Stuart W. Babcock, But-for Causation / Cause-in-Fact, Asymmetry Problem, Combination Problem, Duties Based Upon Contract, Duties Based Upon Relationships, Creation of Peril, Good Samaritan Duties, Duties of Landowners