CHANGES ARE COMING TO THE KANSAS CRIMINAL CODE - WHEN FAILURE TO ACT TRIGGERS CRIMINAL LIABILITY AND REFINING THE CULPABLE MENTAL STATE STANDARDS

Changes are coming to the Kansas Criminal Code in 2011. A new provision makes a significant distinction in the definition of Actus Reus or criminal act definitions. This is the requirement of a voluntary act or omission. New §21-5202 closely parallels Model Penal Code §2.01, which says that a person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

The language of §21-5202 came from last session's House Bill 2668 §12:

"New Sec. 12. (a) A person commits a crime only if such person voluntarily engages in conduct, including an act, an omission or possession.

(b) A person who omits to perform an act does not commit a crime unless a law provides that the omission is an offense or otherwise provides that such person has a duty to perform the act.

This opens criminal liability in Kansas to a class of laws called Failure to Act. In Texas a woman was found guilty of Capital Murder for failing to seek medical care quickly enough to save the life of her ailing child. Foster Mother Ruth Overton was found guilty by a jury trial and sentenced to life in prison. That case on appeal is Hannah Ruth Overton v. The State of Texas, 13-01-00735. The opinion of the Texas Court of Appeals for the 13th District in this case is found at http://www.13thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=18125. Her appeal was denied.

In this case a foster child died under Overton's care, apparently as the result of ingesting a spice mixture added to his drinking water there was also an injury to the child's head. The indictment charged Overton, inter alia with:

"... and/or intentionally or knowingly, by omission, failing to provide or to seek adequate and/or timely medical care or treatment to [A.B.] and the defendant had a statutory or legal duty to act or the defendant had assumed care, custody or control of [A.B.]; or by manner and means unknown to the Grand Jury," emphasis added.

Consider, by distinction, that Kansas' Good Samaritan law, K.S.A. § 65-2891, grants health care providers  responding to injured persons "at the scene of an emergency or accident" immunity from civil cases except for "damages occasioned by gross negligence or by willful or wanton acts or omissions by such person in rendering such emergency care." It is important to note that K.S.A. §65-2891 neither imposes a duty to respond nor grants immunity from criminal prosecution.

Suppose the Good Samaritan law imposed a duty on the health care provider to stop at the scene of an accident or emergency and render aid or suffer criminal sanctions.  If the health care provider drove away and ignored that duty, even though traffic cameras showed that person up slowed and observed the emergency event, then there would be a Failure to Act triggering liability under §21-5202(a) and the statute imposing the duty in the first place. 

I expect the Failure to Act "omission" imposed by §21-5202 will be triggered by a duty specifically imposed by law or a relationship. Obviously where a statute says failure to act is criminal conduct then §21-5202 applies.  Where the law recognizes a duty by relationship then the section will apply.  We cn anticpate disputes when §21-5202 is activated by relationship and the statutes are not clear.

Another wrinkle will be if Kansas Courts infer the Mens Rea or culpable state of mind requirements from the Actus Reus. In the Overton case one of the contentious issues was whether the defendant acted with the requisite Mens Rea. The Mens Rea refers to the culpable state of mind requirement.  Did the defendant know and appreciate the risk of harm in the act they are accused of commiting? The new statutory changes in the Kansas Criminal Code will make such inferences more difficult.

In the Overton case the Texas Court of Appeals succinctly addressed the issue Overton raised about the culpable mental state requirement:

On appeal, Overton argues, without citation to authority, that "[b]ecause it was based upon an infirm indictment, the jury charge did not charge a felony offense." We disagree. The jury charge required the jury to determine whether Overton intentionally or knowingly caused the death of A.B., an individual under the age of six years. Thus, it correctly instructed the jury on the elements of capital murder. Overton also appears to make the same argument she made in her first issue--that the indictment did not include the requisite mens rea. We have already concluded that the indictment contains all of the elements of capital murder, and we now conclude that the jury charge correctly instructed the jury to find Overton guilty only if she intentionally or knowingly caused A.B.'s death. (emphasis added).

Attorneys practicing Criminal Defense have as their threshold standard the necessity of making the state prove each and every element of a charged offense. These attorneys will want to hone their skills when it comes to requiring the state to prove the Mens Rea element.

In the Overton case the disconnect between inferring the Mens Rea from the Actus Reus reared its head after the trial. World Magazine, a Christian publication, printed an article by Clint Rainey, "Unknown Ingredient" in its February 23, 2008 edition. In that article Rainey wrote:

"Jurors said they didn't think Hannah Overton meant to kill Andrew. They found her guilty of his death by 'failure to act.' But the prosecution didn't include any lesser charges, and since Andrew was under 6, state law applied to this case required she get life without parole or nothing. Jurors felt hamstrung. By law, capital murder must be purposeful. Jurors thought Hannah was guilty of not taking Andrew to the hospital quickly enough; defense attorneys said this wasn't purposeful. They asked the judge to throw out the verdict, arguing if jurors rejected that Hannah intended to kill Andrew purposefully by force-feeding him, then it made no sense to say that her failure to act later on was intentional." (Emphasis added).

If a juror doesn't think or believe that a defendant meant to commit the crime then how has the state proved the Mens Rea element of the offense? Under Kansas' new §21-5202 the Defense Bar needs to pay keen attention making the state prove the defendant's acts, omissions or possessions were voluntary.

Under §2.01 of the Model Penal Code the requirement of voluntary acts, omission as the basis of liability and possession as an act are discussed. K.S.A. §21-5202 predicates the omission, triggering criminal liability, on voluntary conduct.



The Model Penal Code  provides non-voluntary  illustrations  such as (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

Liability for the commission of an offense may not be based on an omission unaccompanied by action unless either (a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law.

As for possession the Model Code says "possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession "

K.S.A. §21-5202 replaces K.S.A. §21-3201. The new section reads

New Sec. 13. (a) Except as otherwise provided, a culpable mental state is an essential element of every crime defined by this code. A culpable mental state may be established by proof that the conduct of the accused person was committed ‘‘intentionally,’’ ‘‘knowingly’’ or ‘‘recklessly.’’

(b) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows: (1) Intentionally; (2) knowingly; (3) recklessly.

(c) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged. If recklessness suffices to establish an element, that element also is established if a person acts knowingly or intentionally. If acting knowingly suffices to establish an element, that element also is established if a person acts intentionally.

(d) If the definition of a crime does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

(e) If the definition of a crime does not prescribe a culpable mental state, but one is nevertheless required under subsection (d), ‘‘intent,’’ ‘‘knowledge’’ or ‘‘recklessness’’ suffices to establish criminal responsibility.

(f) If the definition of a crime prescribes a culpable mental state that is sufficient for the commission of a crime, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the crime, unless a contrary purpose plainly appears.

(g) If the definition of a crime prescribes a culpable mental state with regard to a particular element or elements of that crime, the prescribed culpable mental state shall be required only as to specified element or elements, and a culpable mental state shall not be required as to any other element of the crime unless otherwise provided.

(h) A person acts ‘‘intentionally’’, or ‘‘with intent,’’ with respect to the nature of such person’s conduct or to a result of such person’s conduct when it is such person’s conscious objective or desire to engage in the conduct or cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as ‘‘intentionally’’ or ‘‘with intent’’ are specific intent crimes. A crime may provide that any other culpability requirement is a specific intent.

(i) A person acts ‘‘knowingly’’, or ‘‘with knowledge,’’ with respect to the nature of such person’s conduct or to circumstances surrounding such person’s conduct when such person is aware of the nature of such person’s conduct or that the circumstances exist. A person acts ‘‘knowingly,’’ or ‘‘with knowledge,’’ with respect to a result of such person’s conduct when such person is aware that such person’s conduct is reasonably certain to cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as ‘‘knowingly,’’ ‘‘known,’’ or ‘‘with knowledge’’ are general intent crimes.

(j) A person acts ‘‘recklessly’’ or is ‘‘reckless’’, when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

The changes shed greater light assisting Bench and Bar in making more precise determinations of Mens Rea. The section being replaced 21-3201 is much briefer, it reads:

"21-3201. Criminal intent. (a) Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner.

(b) Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms "knowing," "willful," "purposeful," and "on purpose" are included within the term "intentional."

(c) Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms "gross negligence," "culpable negligence," "wanton negligence" and "wantonness" are included within the term "recklessness" as used in this code."

Proving Mens Rea will not be necessary in every circumstance.  The language under the new §21-5203, which came from §14 of the statute as passed. It reads:

New Sec. 14. A person may be guilty of a crime without having a culpable mental state if the crime is:

(a) A misdemeanor, cigarette or tobacco infraction or traffic infraction and the statute defining the crime clearly indicates a legislative purpose to impose absolute liability for the conduct described;

(b) a felony and the statute defining the crime clearly indicates a legislative purpose to impose absolute liability for the conduct described (for instance, statutory rape);

(c) a violation of K.S.A. 8-1567 or 8-1567a, and amendments thereto (Driving under the influence of alcohol or drugs);

or

(d) a violation of K.S.A. 22-4901 et seq., and amendments thereto (registration of sexual offenders).

The new Kansas §21-5203 replaces the old K.S.A. §21-3204 which read:

21-3204. Guilt without criminal intent, when. A person may be guilty of an offense without having criminal intent if the crime is: (1) A misdemeanor, cigarette or tobacco infraction or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described; or (2) a violation of K.S.A. 8-1567 or 8-1567a and amendments thereto.

These are good changes to the law and will, I think, result in convictions and acquittals based on accurate standards in the law rather than the inferences upon the culpable state of mind.

The language in K.S.A. 21-5202 (j) guides away from the frustrated jury result in the Overton case. Failing to seek prompt medical attention for a sick or injured child, the omission, sounds under a Mens Rea standard of recklessness not  intentional or knowing. 

Remember that new changes in Kansas law say a person acts recklessly when they consciously disregard  a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

Had the Texas Court instructed the jury with a lesser included offense, one with a reckless Mens Rea standard, then Overton may have been found guilty of that lesser offense. 

Hopefully no Kansas jury will find itself hamstrung between conviction and acquittal as may have been the case in the Hannah Overton v. State of Texas.