Section 1.3

Fundamentals of Criminal Law by Adam J. McKee

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The Criminal Act

To spark debate in the classroom, I often make controversial and inflammatory statements to which I expect at least someone to make an objection.  With this strategy in mind, I offered a definition of a crime to my students:  “A crime is rule of law prohibiting an activity that a group of elite, rich, old, white men don’t want you to do.”  Much to my surprise, the strategy backfired. Most of my college students agreed with that position, and I had to take the other side of the debate to keep the class moving.  Whatever you think of that actual premise, it does point out the fact that crimes, when taken as a whole, have very little in common.  Most mala in se offenses are universally criminal.  Murder, rape, robbery, arson, and burglary are nowhere acceptable (except for places where the rule of law does not prevail).  

Other crimes are held in contempt by a majority of people, and the continued criminalization of some acts undermines the public respect for the laws (and sadly the officers that duty-bound to enforce them).  The most publicised example as I write this is the cannabis legalization debate. Vestiges of puritanical “blue laws” are regarded by some as barriers to economic growth in the communities that most need the economic boost.  Others argue that they are unconstitutional and are in direct violation of the Full Faith and Credit Clause of the US Constitution.

Everywhere, it seems that one group or another is critical of particular laws and what them reformed or abandoned.  Someone who has not studied the law will usually apply a victim analysis when justifying criminal laws. Laws, they would assert, are designed to protect people from harm.  Those harms can be physical, psychological, and economic, but there is always a victim that to which we can point. Civil libertarians are quick to point out that many of the controversial crimes they wish to see abolished are victimless crimes. What do Martha Stewart and Ted Bundy have in common? They broke the law. What else? Not much at all. It seems that there is little commonality that defines the essence of what it means for an act to be criminal.

For those that study the law and practice it, there are common threads that define every crime.  We call these common building blocks the elements of crimes.   These elements are not just an academic curiosity.  They have major implications for criminal justice professionals.  The reason for this is that to get a conviction in criminal court, the prosecution must prove each element of the defense beyond a reasonable doubt.   If a single element is not proven to that exacting standard, then the jury will acquit the defendant and the case will be lost.   This means that every criminal justice professional from patrol officers to district attorneys must understand each element of each offense and do their utmost to see that evidence sufficient to prove each and every element is lawfully brought before a jury.    

With exceptions some notable exceptions (which we will discuss in later sections), every crime has at least three elements: a criminal act (also called actus reus), a criminal intent (also called mens rea), and concurrence of the two.  Note that statutes often use the term conduct to reflect the criminal act and intent elements. As the Model Penal Code explains, conduct means “an action or omission and its accompanying state of mind” (Model Penal Code § 1.13(5)).  For some crimes, the act itself is what the legislature wanted to prevent. In such a case, the criminal act and the criminal intent (and the concurrence of the two) completely define the crime.   For example, a live nude show statute suggests that the legislature wanted to prevent live nude shows; there is no greater harm to consider.  

When it comes to crimes where a bad result is what the legislature wanted to prevent, two additional elements are added.  There must be a cause of the bad outcome (and that cause must be the defendant’s action), and the bad outcome, usually referred to in law as the harm, must actually occur.  Depending in which source you look at, there may be another element of crimes referred to as attendant circumstances.  Attendant circumstances are special conditions that must be met before the act in question is actually a crime (or a particular species of the crime).  At common law, for example, the crime of burglary had to happen at night. If it happened during the daytime, it was considered a mere trespass (and a theft of something was taken).  So, in the case of common law burglary, “the act occurred at night” is an attendant circumstance. Other writers merge the attendant circumstance with one of the other elements.

The balance of this chapter will consider each of these elements in more depth.  Once you have mastered these concepts, you will be ready to break a criminal statute down into its component parts and have the confidence to fully understand what you read on your own.  

References and Further Reading

“Actus Reus.” Encyclopedia of Crime and Justice. Retrieved September 26, 2018 from


Powell v. Texas, 392 U.S. 514 (1968).

Robinson v. California, 370 U.S. 660 (1962).

Modification History

File Created:  07/12/2018

Last Modified:  09/26/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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