Conduct

Most statutes contain a conduct element, which usually means a physical act. When we assess any criminal case, we must first identify the conduct element of the statute, then identify what physical act the defendant actually performed, and then see if the second satisfies the first. Did the defendant do what the statute forbade?

Some people will use the term actus reus to refer to conduct. Actus reus literally means "guilty act." We will avoid the term as ambiguous in favor of the more precise term, "conduct." This term refers narrowly to the element of the statute that proscribes some physical act.

Some people also say that a statute must contain an actus reus or a conduct element. This is not true. Many statutes criminalize the failure to act, an omission. We can finesse the language by saying, if we prefer, that the omission satisfies or counts as the actus reus or conduct, because an omission, like an act, can cause harm. But it is better to avoid the idea that a statute must contain some actus reus or conduct element in favor of noting that they almost always do.