Farrell and Marceau on the Voluntariness Requirement in Criminal Law

The latest issue of the Boston College Law Review includes this article by Ian P. Farrell and Justin F. Marceau.  The full citation is Ian P. Farrell & Justin F. Marceau, Taking Voluntariness Seriously, 54 B.C. L. Rev. 1545 (2013).  Here is the abstract:

Courts and commentators commonly claim that criminal law contains a voluntary act requirement. Despite the ubiquity of this assertion, there is remarkably little agreement on what the voluntary act requirement entails. This lack of uniformity is particularly problematic because, for some crimes, whether a defendant is guilty or innocent will turn on which conception of voluntariness is applied. In this Article, we critique the various conceptions of the voluntary act requirement, and propose an alternative set of principles for applying the notion that person is only criminally culpable for crimes committed voluntarily. First, culpability requires that the actus reus as a whole (rather than merely one element of the actus reus) be voluntary. Second, the voluntariness requirement is an affirmative element of every offense, with the prosecution bearing the burden of proving voluntariness. Third, the Constitution requires that voluntariness is a necessary condition of criminal liability. These principles resolve the inconsistent understandings of the voluntariness requirement and ensure that criminal liability is limited to those defendants who are responsible for prohibited activity.

I was familiar with the earlier versions of this article, but I have not read the current version, so I am not sure how much has changed.  I warned against the authors' dangerous focus on voluntariness here.

Despite the arguments in that paper, I think that the authors are correct.  The voluntary act (or "actus reus") requirement is often presented in a somewhat confusing manner.  The requirement is necessary to both prevent people from being convicted on the basis of thought alone, and to prevent people from being punished for actions that are purely reflexive.  These dual concerns are sometimes swirled together in discussions of the voluntary act, and, as Farrell and Marceau note, the "act" portion of this requirement is not always required.

There is more to the voluntary act requirement than meets the eye, and Farrell and Marceau are effective at bringing out its complexity and proposing a more orderly analysis.