'The Confined Woman of Poitiers' and the Guarantor's Position of the Brother

Abstract

The concept of the state penalizing a person for his or her failure to act must be understood and analyzed as more than criminal responsibility for something that a person has failed to do. The idea that, unless a person complies with the obligations imposed by the state and acts accordingly, he or she will receive a court sentence, is related to the principle of legality in criminal law, individual liberty to act, and the rule of law. This article will underline the concept of improper omission, and how the criminal liability for improper omission is affecting the principle of legality in the perspective of the French criminal law theorists. In contrast with other European countries that have a long-standing tradition in accepting and analyzing criminal omission (such as Germany or Spain, for instance), in France, the idea of criminal responsibility for an omission that is not expressly regulated by the law was rejected. This longstanding position is based on a famous case - law that was very popular and is still mentioned by the theorists of criminal law when talking about responsibility for omission (known as the 'Poitiers Case'). This decision, however, besides being an important case-law for the French criminal law, raises a problem that has not been solved even in the systems where the commission by omission is accepted. The main question that must be answered is whether a brother has a guarantor's position, or, in other words, has a duty to act, if his sister is in danger, and in this article, I present the main ideas developed as an answer to this problem.