Aileen C. Luo

The criminalization of omissions is often controversial for several reasons. One concern is that omissions liability appears to violate the act requirement. Another involves the ambiguous causal status of omissions, especially in result crimes. In this paper, I examine a distinctive kind of omission—what I call “refrainings.” I argue that, unlike mere omissions, refrainings are actions. When an agent refrains from preventing harm to others, she does not merely allow the harm to occur but, in an important sense, brings it about. I aim to show that recognizing refrainings as a distinct category of omission has significant implications for the act requirement and for the justification of criminal liability in so-called “Bad Samaritan” cases.