Failure to Act

Posted: April 26, 2017

Criminal law outlines that a defendant is considered guilty whenever they fail to act and the duty to act is bestowed unto them (Hartley, 2014). The duties one has towards other people include duty to act as required by the law prevailing at that time commonly referred to as statutory duties. Thus, failure to comply with these statutory duties means an individual could plead guilty in a criminal prosecution. Moral duties are also in the category where a person is to comply to not only to the law but should be guided by moral values towards other people.

To understand a failure to act, one has to create a clear-cut distinction between omissions and acts (Hartley, 2014). Unlike an act which entails physical participation and therefore subjected to punishment if they commit illegal action, omission is a failure to act when faced with a given situation. However, there are exceptions to the core rule of failure to act. The presence of a criminal liability in a failure to act scenario means there is an exception. When one has a contractual duty to cater for another individual creates another exception and, lastly, when an individual assumes a responsibility role for other and it is voluntary. 

For the case of coach McQueary, he saw in Penn State locker room a young boy being assaulted and failed to act. The incident happened in 2002 when Jerry Sandusky who was the then defensive coordinator engaged in a sexual act with a small boy (Ganim, 2012). Testifying in court, McQueary said Sandusky was positioned behind the boy but in close contact. For this reason, it was held that sufficient evidence was present to bring to trial Gary Shultz and Tim Curley who were the chief administrators during the time and charge them for failure to act. McQueary had a moral duty to report the issue considering it was assault which raised questions about his credibility. Additionally, McQueary new the moral duty to act existed but failed to report the matter to the respective authorities.

Coach Joe Paterno notified of the assault by the young boy but failed to act which translates to a legal duty the coach had. The victim who reported to Paterno to offer some help made him to have engaged in efforts to help the boy but he withdrew the effort by failing to report it to the law enforcement. For this reason, Parteno is considered to be part of the cover up which makes him guilty.

Another example of failure to act case is R v Stone & Dobinson where Ted Stone who was unable to see, had low intelligence, and also had low appreciable sense of smell was living with his previous caretaker, Gwendolyn Dobinson (Hartley, 2014). During their stay together, Ted’s sister, Fanny started to develop mental problems and Ted and Gwendolyn chose to take her in and cater for her. However, one-day Fanny was found dead in their house and Ted and Gwendolyn were found guilty for having assumed responsibility to take care of her. The appellants were liable for her death as the circumstances under study indicated that they should have acted following the condition of the victim.

Failure to act is relevant in this case as there is a neglect of duty to care and the actions by Ted and Gwendolyn were considered as reckless. The assumption of the responsibility to take care of Fanny meant that the moral duty of caring for her was bestowed upon Ted and Gwendolyn. Breach of duty emanates primarily where the two fail to ensure Fanny’s welfare and health are well under consideration. Ignoring the risk and going ahead to let Fanny’s condition to worsen, shows inadvertence which makes Ted and Gwendolyn guilty.

Apart from failing to act being considered a crime, assisting in hiding and concealing a misdoing means that one is liable for an accessory charge categorised under aiding and abetting. For this reason, one is only charged for being present and not taking the necessary step to bring the perpetrators to book and avoid the likelihood of a similar happening in the future. For the case of children, there are mandatory reporting laws that guide on the necessary steps to be taken by an individual. The individuals considered as reporters in this case are parents, social workers, teachers, therapists, school administrators, medical professionals, clergypersons among other individuals. For this reason, individuals have a legal duty to act and non-compliance will lead to prosecution.

In our cases above, Coach McQueary, Paterno, Ted and Gwendolyn were expected to act failure to which they faced their respective consequences. When considering a failure to act claim, examining whether the defendant wronged the plaintiff is inevitable. Thus, the relationship between the plaintiff and the defendant determine the legal duties an individual owes others. Similarly, a doctor has a legal duty to provide the patient with appropriate medication. However, the legal duty may be determined by the reasonable care the defendant has to offer the plaintiff.

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