General Crim Law Flashcards
(135 cards)
1
Q
What are the purposes of punishment?
A
1) Social Condemnation
2) Retribution
3) Rehabilitation
4) Deterrence (specific and general)
a. Specific deterrence- keeping offender from reoffending
b. General deterrence- making example to public at large.
5) Restraint
6) Economic reasons/Cost benefit.
2
Q
What is an essential element of just punishment in common law and MPC view?
A
The Actus Reus.
Common law: A voluntary act is an essential element of just punishment.
MPC 2.01: a voluntary act or omission of which the actor is capable, is a prerequisite for criminal liability.
3
Q
What are involuntary acts under the MPC?
A
Involuntary Acts: Acts performed by reflex, convulsion, unconsciousness/sleep, hypnosis, or anything not the product of conscious determination.
4
Q
What is the mens rea and actus reus of possession?
A
Possession:
Purposely or knowingly (mens rea) procured the thing possessed or was aware of his control thereof for sufficient time to have ended the possession (actus reus)
5
Q
Is punishment permitted for addiction or intoxication?
A
Courts initially criminalized addiction; later limited to public intoxication. (Robinson)
Today, punishment cannot be imposed for the “status crime” of being addicted to alcohol/drugs but can punish acts resulting from addiction such as public intoxication.
6
Q
When is an omission to act a crime, generally?
A
Failure to act is generally not a crime. But an omission to act can incur criminal liability when a duty to act existed and the person was physically capable of performing it.
7
Q
When does a duty to act exist for purposes of criminal liability?
A
Duty to Act exists when:
i) Duty imposed by law
ii) Duty exists by virtue of relationship between persons (i.e. parent/child, spouse, doctor)
iii) Duty imposed by contract
iv) Duty voluntarily assumed
v) Duty by creation of peril.
8
Q
What is mens rea and how is it distinct from motive?
A
Mens Rea is criminal intent, a culpable state of mind which is generally combined with Actus Reus to impart criminal liability. Mens rea is distinct from motive- the reason a crime was committed.
9
Q
What is the difference between specific and general intent?
A
General Intent. Actor intends to commit a particular crime, but doesn’t intend a specific result.
Specific Intent. Actor intends a specific result from the crime in addition to possessing general intent to commit the crime.
10
Q
What are the 4 MPC mental states, and their definitions?
A
Purposely- The actor purposely engaged in the conduct or caused the resulting harm.
Knowingly- the actor knows that his conduct is almost certain to cause the resulting harm.
Recklessly- The actor knows but consciously disregards a substantial and unjustifiable risk of harm from his conduct.
Negligently- The actor should have known of a substantial and unjustifiable risk of harm from result from his conduct.
11
Q
What is a strict liability offense, and where is it typically found?
A
Strict liability offenses are regulatory offenses created by legislature which have an actus reus but no mens rea.
They are considered malum prohibitum (wrong because it is prohibited) rather than malum in se (inherently wrong by nature).
Commonly found in area of public welfare including traffic laws, statutory rape, animal cruelty or regulations on pollution, navigation, food/drug control, explosives/chemicals.
12
Q
What is transferred intent, generally?
A
Transferred intent is when an actor intends to harm one person/thing, but instead harms another similarly; his intent transfers to the person/thing harmed, resulting in criminal liability
13
Q
How does the MPC address proximate causation?
A
Under MPC, liability attaches when the actual harm contemplated by the actor (or risked, in cases of negligence/recklessness) differs from the actual result only in that a different victim/object was harmed
-or-
When the actual result was the same type of injury contemplated/risked, and is not too remote to have just bearing on the offense.
14
Q
What is the MPC definition of causation?
A
An antecedent but for which the result in question would not have occurred, and a causal relationship exists between act and result as defined by law prescribing offense
15
Q
What are actual and proximate causation?
A
Actual
The factual cause of the victim’s harm, without which the harm would not have occurred.
Proximate:
Legal Cause; the cause that imparts criminal liability.
16
Q
What are the tests for actual causation under Common Law and the MPC
A
“But For” (Sine qua non) Test: considers whether defendant’s act was a necessary precondition of the resulting harm.
Substantial Factor Test: Whether D’s actions were a substantial factor in the harm. A substantial factor is more than a trivial or remote factor.
MPC uses the But For test; Common Law uses both tests; But For when there is one cause and Substantial Factor when there are multiple contributing causes.
17
Q
When is proximate causation present under Common law?
A
Common Law requires that the harm is a natural & probable consequence of the D’s actions, and the causal chain is not broken by a superceding intervening event.
18
Q
When is proximate causation present under the MPC?
A
MPC requires the actor acted with one of the 4 mental states, and that “the actual result . . .is not too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability.
19
Q
What is a dependent intervening cause, and when does it establish proximate causation?
A
A dependent intervening cause is a direct or normal result of the Defendant’s acts. Generally DOES establish proximate causation, unless the result is abnormal.
20
Q
What is an independent intervening cause, and when does it establish proximate causation?
A
An independent intervening cause is not a direct result of defendant’s actions, rather said actions created situation where result eventually happened.
Generally DOES NOT establish proximate causation unless it was a forseeable result of the defendant’s actions.
21
Q
What is a superceding intervening cause?
A
An independent event that breaks the chain of causation, keeping the negligent party safe from liability.
22
Q
What were the historic categories of accomplices and their definitions?
A
First degree principal- someone who actually perpetrates crime.
Second degree principal-someone who incites or abets the crime, and is either actually or constructively present at commission
Accessory before the fact-someone incites or abets the principal but isn’t present actively or constructively at scene.
Accessory after the fact- Assists afterward with concealing crime or hindering law enforcement.
23
Q
How were felony accomplice prosecutions treated at common law?
A
For felonies, accessories could not be charged as principal or vice versa, and the indictment had to specify which they were charged as.
Principals could be convicted as a lower or higher degree than charged, and indictment didn’t need to specify degree.
An accessory could not be convicted unless the principal was convicted, and not of a higher offense than the principal.
24
Q
How were misdemeanor accomplice prosecutions treated at common law?
A
Common law made no distinction between principals and accessories, all were principals.
Accomplice could be convicted notwithstanding acquittal of principal.
25
What were the major historic changes to accomplice liability law?
Two major changes happened resulting in modern accomplice liability laws:
1848 British Parliament enacted law that accessory after fact could be punished in all respects like the principal, even if the principal were acquitted. American states followed suit.
In 1909 enactment of 18 USC § 2, abolished distinction between principals and accessories and made all principals, except accessories after the fact (punishable as distinct offense).
26
In Modern Common Law, what are the actus reus and mens rea for accomplice liability (aiding & abetting)
Mens Rea. Dual mental states: (1) intent to engage in acts of assistance; and (2) acting with required mental state of crime that actor assisted with.
Actus Reus. Inciting or assisting the actor in commission of a crime.
27
Under MPC, what are the actus reus and mens rea for accomplice liability/aiding & abetting?
Under MPC, the Actus Reus is aiding or encouraging the principal in commission of crime. Exists when:
i) Accessory encourages, aids, agrees to aid, or attempts to aid another in commission of crime.
ii) Solicits another to commit a crime.
iii) Fails to perform a legal duty to prevent the crime; or
iv) Conduct is otherwise expressly declared complicit by law.
Mens rea is dual: Intent to assist another in commission of a crime, intent they commit the crime.
28
Under MPC, what are defenses to accomplice liability?
Defenses/Inapplicability. Accomplice liability does not exist where:
i) Person is a victim of the offense.
ii) The offense is defined so that his conduct is inevitably incident to its commission.
iii) He timely terminates complicity, hampers the offense, and timely warns law enforcement.
29
How does accomplice liability work for strict liability offenses?
Aider/abettors usually aren’t liable for assisting strict liability offenses.
30
What is vicarious liability and how does it work?
Vicarious Liability. When someone is held liable for the crime of another by virtue of the relationship between the parties, even if unaware of actions (usually employer/employee).
Common law treats minor & serious crimes the same way- liability exists when actor performed in course of his employment.
MPC does the same for minor crimes, but for serious crimes finds liability of a corporation or officer, when the higher managerial authority directed, authorized, or tolerated criminal conduct
31
What are inchoate crimes, and what are the 3 inchocate crimes?
Inchoate crimes are incomplete crimes. Conspiracy, attempt & solicitation.
32
What is the definition of **Attempt**?
Attempt is an inchoate (anticipatory or preparatory) crime where an individual, with the specific intent to commit a crime, undertakes an action in furtherance of that crime, but fails to complete it.
33
Generally, what are the elements of **Attempt**?
The three elements are:
a. Specific intent to commit a crime (even if target crime is general intent).
b. Conduct that constitutes a substantial step toward completing the crime
c. Failure to complete the crime.
34
What are the elements of Attempt under the MPC?
Purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be;
-or-
Purposely does or omits to do anything that, under the circumstances as he believes them to be, constitutes a substantial step towards commission of the crime.
35
What satisfies the MPC substantial step test for attempt?
Substantial Step Test. Conduct must be strongly corroborative of criminal purpose.
The following is a non-exclusive list that satisfies this requirement:
Lying in wait, searching for, or following prospective victim.
Luring/enticing prospective victim to location contemplated for crime.
Reconnoitering or unlawful entry into place contemplated for commission of crime.
Possession of, or collection near the scene, of materials planned for use in the crime, which serve no other lawful purpose.
Soliciting an innocent person to take part in element of crime.
36
What are the Common Law tests for Actus Reus of Attempt, and mens rea for attempt.
At common law, mens rea is specific intent to commit target crime.
Actus reus shown by one of many tests:
i) Physical Proximity. An overt act, proximate to completion of the crime, tending toward commission, or amounts to commencement of consummation.
ii) Dangerous Proximity. Court considers the gravity, probability, and nearness to completion of the crime.
iii) Indispensable Element. Considers whether an indispensable element of the crime remains, over which the actor has not acquired control.
iv) Probable Desistance. Considers whether actor's conduct would result in crime if uninterrupted.
v) Abnormal Step. Whether the actor’s conduct has exceeded the point at which an RPP would cease the attempt.
vi) Res Ipsa Loquitur/Unequivocality. Whether the actor’s conduct self-evidently manifests intent to commit the target crime.
37
When is abandonment a defense to attempt?
Traditionally/CL, abandonment is not a defense.
Under the MPC, the complete and voluntary renunciation of criminal purpose, can be an affirmative defense to an attempt charge.
Voluntary means not motivated by a chance of getting caught.
Complete means not waiting for a more opportune time/victim.
38
What are factual and legal impossibility, and are they a defense to attempt?
**Factual Impossibility**. Defendant believes he is committing a crime, but the crime is factually impossible. (i.e., murdering a corpse, firing unloaded gun). Universally NOT a defense to attempt.
**Legal Impossibility**. Actor believes their conduct is illegal, but it actually isn’t. Examples include: accepting “stolen” goods that aren’t stolen. Usually IS a defense to attempt.
39
What is the definition and elements of Conspiracy?
Conspiracy is an agreement between two or more people to commit a criminal act.
The elements are:
i) Express or implied agreement between two or more people
ii) Specific intent to commit a crime
iii) Overt act in furtherance of the crime*
| *Historic common law didn't have this.
40
What are wheel/chain conspiracies and elemental conspiracies?
Chain conspiracies are where each conspirator only knows the next “link” in the chain. These usually create one linked conspiracy.
Wheel conspiracies involve conspirators all revolving around a central hub. This usually results in multiple independent conspiracies.
Modern courts prefer elemental approach which concerns whether prosecutor met elements of conspiracy.
41
What are the requirements for Withdrawal as a defense to conspiracy ?
Common Law. Historic common law did not recognize withdrawal as a defense to conspiracy.
Modern common law and MPC a complete and voluntary renunciation of criminal purpose, D's motives are genuine and D must inform co-conspirators and attempt to alert law enforcement.
If overt act has happened, liability for conspiracy cannot be avoided but can avoid liability for subsequent crimes of co-conspirators.
42
What are 4 defenses to conspiracy?
Withdrawal
Entrapment
Wharton's Rule
Plurality Rule
43
What tests must be satisfied to invoke **Entrapment** as a defense to Conspiracy?
Jurisdictions use different tests, either subjective or objective.
i) Subjective Test: Was the accused predisposed to commit the crime.
ii) Objective Test: How outrageous was police conduct according to RPP.
44
What is Wharton's Rule and how does it work?
*Wharton's Rule* is a defense to conspiracy;
There can be no conspiracy to commit crimes which by definition require 2 people to commit, as to those necessary participants.
It does not apply to any additional participants beyond the two necessary parties. Traditionally was limited to bigamy, dueling, adultery, and incest but has been expanded to contraband purchase/sale
45
What is the plurality defense to conspiracy?
Plurality Acquittal. Under the plurality requirement, if ALL other conspirators have been acquitted the remaining member cannot be convicted. This does not apply if only some co-conspirators were acquitted.
46
When is a vendor or supplier of a criminal enterprise liable for conspiracy?
In *US v. Falcone*, Learned Hand addressed suppliers/service providers for criminal enterprise. They only are part of conspiracy if “their fortunes rise and fall with the venture’s success.”
47
What is voluntary intoxication and when is it a defense to criminal liability?
**Voluntary Intoxication**. Defendant voluntarily consumed the intoxicant.
Can negative mens rea (and thus be a defense) for specific intent crimes, but not general intent crimes.
48
What is involuntary intoxication and when is it a defense to criminal liability?
Involuntary Intoxication. Defendant either consumed the intoxicant under duress, or did not know it was intoxicating. Is usually a defense.
Pathological Intoxication. Defendant underestimated how intoxicated they would get as it was grossly disproportionate to expectations/experience.
Insanity. Long term use of intoxicant renders one insane and unable to distinguish between right and wrong. Can sustain insanity defense.
49
What is Mistake of Fact, and when is it a defense?
Mistake of Fact. An honest but incorrect belief that factual circumstances existed which made the charged conduct not criminal.
Can be a good defense, but most jurisdictions require reasonableness of the belief.
Can never be defense to strict liability as mens rea not required.
50
What is Mistake of Law, and when is it a defense?
Mistake of Law. A mistaken belief in the lawfulness of one’s actions.
Generally not a good defense, unless one was informed of such through official sources, knowledge is an element of the offense per statute, or they relied on a statute that was later overturned.
51
How does the MPC treat Mistake as a defense?
MPC does not distinguish between mistakes of law and fact. Sometimes will allow mistake defense if it negates mens rea for the crime.
52
Generally, how was homicide treated historically at common law?
Criminal homicide was defined as the unlawful killing of another human being with malice aforethought.
At Common Law there was only manslaughter and murder; the latter was a capital crime.
The presence or absence of malice aforethought was the dispositive factor dividing murder & manslaughter.
53
Generally, how is murder treated under modern state law?
Many modern jurisdictions use a degree system, where “first degree” is willful, deliberate, and premeditated murder and all other types are second degree. Some states also have a third degree.
54
Modernly, how is homicide divided in common law and under the MPC?
At common law, modern law recognizes murder and manslaughter, which are further divided into intentional and unintentional crimes.
The MPC recognizes murder, manslaughter, and negligent homicide.
55
What are the MPC requirements for murder, manslaughter, and negligent homicide?
**Murder** is a killing committed knowingly or purposely, or recklessly under circumstances manifesting extreme indifference to life (depraved heart murder).
Recklessness is presumed when killing is committed during flight from or commission of enumerated serious felonies. (arson, rape, burglary, robbery, kidnapping)
**Manslaughter** is a killing that would otherwise be murder, but is committed under extreme emotional disturbance. Reasonable provocation is defined according to RPP standard.
**Negligent homicide** is similar to manslaughter, except the mental state doesn’t rise to the level of recklessness.
56
What is the general definition and elements of murder, modernly?
Murder is the unlawful killing of a person with malice aforethought, either express or implied.
Elements. A homicide that is neither justifiable nor excusable, performed by a human being, with malice.
57
What is malice, and what types of malice are there?
Malice is synonymous with intent to kill or severely harm. It can be express or implied.
Express Malice. Direct, overt malice which shows a direct intent to do harm. It is inferred from use of a deadly weapon.
Implied Malice. Malice which is inferred based on circumstances showing a reckless disregard for human life.
58
What is the "malice quartet"?
A memory tool for remembering types of malice and their application.
* Intent to kill (express),
* Intent to Inflict Great Bodily Injury (implied),
* Depraved heart/wanton disregard (implied),
* Felony Murder Rule (implied).
59
What is First Degree Murder?
**First Degree Murder**. A murder committed willfully, deliberately, and with premeditation.
60
What does willfull, deliberate, and premeditated mean?
Willfully. A specific intent to kill.
Deliberation. A cool state of mind.
Premeditation. Thought about the murder beforehand.
61
What is the definition & requirements for 2nd Degree Murder?
Second Degree Murder. An intentional killing that was not premeditated, thus lacks malice aforethought. Second-degree murder requires that the defendant acted impulsively, but with an intent and understanding of his actions
Includes Depraved Heart Murder; which is murder performed with reckless disregard of an unjustifiably high risk to human life.
62
How is 2nd Degree Murder distinguished from Voluntary Manslaughter?
Second-degree murder requires that the defendant acted impulsively, and without premeditation, but with an intent and understanding of his actions.
Voluntary manslaughter is committed in a “heat of passion” without full understanding of one's actions.
63
What is Felony-Murder?
Felony-Murder. A murder committed without premeditation, during commission of another felony (such as an armed robbery gone wrong).
64
What is the "independent felony" requirement concerning Felony-Murder?
The target felony must be a totally separate felony, not one inherent in killing (i.e. assault, firearm discharge).
Some jurisdictions define a list of triggering felonies, others do not.
Where triggering felonies are enumerated, death from listed felonies are first degree murder and others are second-degree.
Where not enumerated, it is applied to any inherently dangerous felony.
65
How does the MPC define murder?
MPC defines murder as a homicide committed knowingly or purposely, or recklessly under circumstances manifesting extreme indifference to value of human life.
Presumption of recklessness exists where felon committed during commission or flight from specific felonies.
66
What is *voluntary* manslaughter, and under what circumstances does it occur?
A voluntary killing, committed under circumstances which negate the malice (intent) requirement of murder.
It is usually raised as a defense to murder, rather than charged independently.
Found in "heat of passion" murders, and "imperfect self defense"
67
What are the requirements for "heat of passion" voluntary manslaughter?
Killing is reasonably provoked by sudden passion rather than malice.
Reasonable Provocation is an objective standard decided by trier of fact; means an event that would provoke the average person so intensely it eclipses their restraint.
No Cooling off period must exist between provocation and homicide.
68
What is "imperfect self defense" voluntary manslaughter?
Imperfect Self-defense. A killing committed under an honest but erroneous belief that it is legally defensible. Most commonly arises in situations of erroneous self-defense.
69
How does the MPC define manslaughter?
MPC defines manslaughter as a homicide which would otherwise be murder but is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.
The reasonableness is measured by an objective RPP standard.
Manslaughter is a second-degree felony.
70
What is the definition and requirements of involuntary manslaughter?
**Involuntary Manslaughter**. An unintentional homicide, distinguished from unintentional murder by lack of malice.
The mens rea for involuntary manslaughter varies widely by jurisdiction. Most places define it as gross negligence resulting in someone’s death.
71
What is the distinction between criminal negligence (supporting involuntary manslaugter) and implied malice (supporting 2d degree murder)?
Implied malice requires awareness & conscious disregard of an unjustifiably high risk to human life whereas criminal negligence involves the failure to perceive the high risk to life.
72
What is Negligent Homicide under the MPC?
A killing committed under the mental state of negligence, not rising to the level of recklessness which requires conscious disregard of risk. Instead, killer should have known of unjustifiable risk to life.
73
What is Misdemeanor Manslaughter and where is it found?
Old CL rule which imputed manslaughter to homicides caused during commission of misdemeanor.
The MPC and most states do not recognize it.
Those which still do typically require the misdemeanor to be malum in se.
74
What are the definitions of Assault and Battery?
**Assault** is an attempted battery or putting a person in immediate apprehension of battery.
**Battery** is unlawful application of force on another’s person
75
What types of Assault & Battery were recognized historically?
Common law traditionally used English precedents which defined two types of battery (bodily injury & offensive touching) and one type of assault (attempted battery).
Later, tort-origin assault (frightening assault) was recognized.
76
Modernly, what types of assault and battery are recognized at Common law?
Today bodily injury battery, attempted battery assault, and apprehension of battery assault, are defined by statute in most states.
Offensive touching battery remains in only a minority of states and is not recognized by the MPC.
Both types are treated as simple battery, or elements are added to make aggravated battery.
77
What were the actus reus & mens rea for the four types of historic assault & battery?
Offensive Touching Battery: actus reus of offensive touching and mens rea of criminal negligence.
Bodily Injury Battery: actus reus of causing bodily injury and mens rea of criminal negligence
Attempted Battery Assault: Attempting a battery with the actual ability to effect one, and came close to succeeding.
Frightening Assault: frightening conduct with the intent to cause the victim to fear bodily injury.
| *Frightening assault recognized later than others
78
What are the modern types of assault & their actus reus/mens rea
Assault. Most states recognize ‘attempted battery assault’ and ‘Frightening’ assault.
Attempted Battery Assault. Requires the mens rea of intent to achieve the result of a battery, and the actus reus of actions coming “sufficiently near” to battery. (Courts are divided on requirement of actual or apparent ability to achieve the battery).
Frightening (tort origin) Assault: The elements are (1) intent to frighten the victim; (2) menacing threat of injury; and (3) actual or apparent ability to injure. Some add subjective element of actual fright in victim.
79
What is the modern definition and types of Bodily Injury Battery?
Battery is an unlawful application of force on another person.
Most states recognize bodily injury battery in terms of simple and aggravated levels.
Simple battery. Intentional offensive contact with another, which causes no injury or minor injuries.
Aggravated battery. Intentional offensive contact with another, which causes “serious bodily injury” or involves use of a deadly weapon. Sometimes concerns special class of victims (children, police officers).
Bodily injury battery includes Exposure to deadly disease.
80
What is the modern definition, actus reus & mens rea for Offensive Touching Battery, and where is it recognized?
An intentional unwanted touching which may or may not cause injury.
Actus Reus & Mens Rea. The actus reus of offensive touching battery is an unwanted touching which does not need to cause injury. The mens rea is the intent to touch offensively.
Not recognized in MPC or most states. Where recognized, has expanded to include bodily waste or intangible touching (laser pens).
81
What are the requirements for "exposure to disease" battery.
Exposure to disease falls under bodily injury battery. Varies jurisdicationally; typical elements are:
* Having a deadly infectious disease
* Intentionally or knowingly transmitting or exposing someone to it
* Exposure is sometimes defined as engaging in specific sexual acts
82
How does the MPC treat assault?
In general, the mens rea & actus reus for attempted assault are same as any MPC attempt; specific intent + substantial step.
Specifically, MPC has 4 types of assault; 1 "frightening" type and 3 "attempted battery" type, which also correspond to simple & aggravated assault. They are:
1. Attempt by physical menace to put another in fear of imminent serious bodily injury. (simple assault)
2. Attempts to cause bodily injury to another; (simple)
3. Attempt to cause serious bodily injury to another (aggravated)
4. Attempt to cause bodily injury with deadly weapon (aggravated).
83
How does the MPC treat Battery?
The MPC distinguishes between simple and aggravated battery using the MPC mental states. MPC doesn't differentiate between class of victims.
Purposely, knowingly, recklessly, or negligently causes bodily injury to another (simple battery)
Negligently causes bodily injury to another with a deadly weapon (simple battery)
Purposely or knowingly causes bodily injury to another with a deadly weapon (aggravated battery).
Purposely, knowingly, or recklessly causes serious bodily injury (aggravated battery).
84
What is a defense to battery and where does it apply?
MPC & some states define consent as a defense to battery in narrow circumstances.
MPC § 211 (2)(b) provides that consent is a defense when the injury is a reasonably foreseeable hazard of participation in sports.
85
Historically, what was adequate provocation for manslaughter?
Adequate provocation included specific acts: discovering adultery, mutual combat or physical attack, illegal arrest.
Sticks & Stones Doctrine. Mere words were not adequate provocation. This has been abolished modernly in favor of reasonable provocation requirement.
86
What is mayhem, traditionally and modernly?
Mayhem. Traditionally, mayhem was the felony form of battery, and meant to hurt someone so they couldn’t engage in battle.
Today mayhem is a separate crime which means to disfigure or maim someone.
87
What was the historic definition of rape?
The common law crime of rape was a capital offense, defined as an act of genital penetration through sexual intercourse, by a man with a woman not his wife, through the use or threat of force, without the victim’s consent.
The common law definition of rape did not include an explicit mens rea, and rape was a general intent crime.
88
At common law, what were the historic elements of rape, and their meanings?
At common law, elements were force and lack of consent.
Force. Defendant used unlawful force sufficient to cause death or serious injury.
Force required “utmost resistance” where the woman resisted or was prevented from it.
Lack of Consent. A victim’s lack of consent was inferred from the degree of resistance
Typically, the elements of non-consent and force merged; the male’s use (or threatened use) of grave force proved both elements.
89
What were the Lord Hale rules concerning rape?
Lord Hale rules & jury instructions required a victim to prove their chastity, and juries to view their testimony with extra scrutiny.
Victim had to:
i) Cry out and/or resist
ii) Display visible injury
iii) Immediately report assault
and
iv) Defendants could present evidence against victim’s character and chastity.
90
What were the causes of the Rape Reform movement of the 1970's and 80's?
Modern research and awareness recognized the need to reform rape laws rooted in misogyny and victim blaming. This included:
1-Drastically low rates of reporting, apprehension, and conviction.
2-Studies showing juries hold misconceptions about victims & treat them with harsh scrutiny.
3-Resistance requirement is dangerous; research shows doubles chance of death/injury.
91
Generally, what changes in law resulted from the Rape Reform Movement?
* Definition of rape expanded to include acts besides penetrative sex
* Rape became gender neutral
* Abandoned utmost resistance requirement and Lord Hale instruction
* Redefined resistance, force, and lack of consent
* Eliminated marital rape exception
* Established rape shield laws
* Allowed Rape Trauma Testimony
92
Modernly, what are the elements of rape?
The elements of modern rape include some combination of fear, force, and/or lack of consent.
93
Modernly, how is fear defined with respect to rape?
Generally, fear means the express or implied threat of immediate unlawful bodily injury, sufficient to overcome the victim’s will.
Fear of bodily injury has subjective and objective components, asking whether a victim genuinely feared immediate bodily injury (subjective) and whether the fear was reasonable (objective). (*Iniguez*)
94
Modernly, how is force defined with regard to rape?
Generally, Force means physical force sufficient to overcome the victim’s will, more than is necessary to accomplish intercourse.
* Force is defined differently depending on jurisdiction, can mean:
* A threat that creates fear of bodily injury that overcomes the victim's will to resist.
* The imposition of psychological pressure that coerces the victim into sex.
* The type of force that constitutes a battery
95
Modernly, how is lack of consent defined?
In many places, lack of consent is incorpoated into the force element.
It is defined in a variety of ways:
- Lack of consent as resistance. Some statutes define lack of consent as physical or verbal resistance.
- Absence of affirmative agreement. Other states require words or actions which demonstrate the desire to have intercourse.
- Withdrawal of consent. Even if voluntary consent is granted, it may be withdrawn, after which if one proceeds he is guilty of rape.
96
How does the MPC define & regard rape?
The MPC, last updated in 1965, still contains many archaic views on rape laws, including marital rape exceptions, penetrative-only sex, gender restrictions, and no rape shield laws.
MPC defines rape as compulsion to submit to sexual intercourse “by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping.”
97
What are the defenses to rape?
Many jurisdictions recognize the defenses of consent, or mistake of fact.
*Consent* Defendant can supply evidence of consent to rebut a rape charge, even when lack of consent is not an elementsof the statute.
Mistake of Fact. Modernly, some jurisdictions require mistake of fact as to a consensual encounter (*Mayberry*) When permitted, requires objective reasonableness test.
98
Is Mistake a defense to statutory rape?
Courts continue to debate whether mistake of fact as to age should be permitted as SR is usually strict liability.
*Hernandez*. Extended *Mayberry* rule to statutory rape cases. Requires reasonableness of mistake as to age.
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What are the rules for rape by deception?
Rape by Deception was originally conceived as a type of force. Courts remain hesitant to apply this interpretation, have focused on whether the act constitutes fraud “in the factum” (fraud as to nature of act) or “in the inducement” (fraud as to reasons for act) preferring to recognize rape only as fraud in the factum.
Some courts have treated mistaken identity of a sex partner as "fraud in the factum."
Others have codified rape by mistaken identity fraud or criminalized penetration by fraud or concealment.
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What are the modern & historic rules for rape of unconscious or drugged victim?
At common law, rape included intercourse with a drugged or unconscious victim as she was incapable of resistance or consent.
Today most states criminalize sex with a person who the defendant administered drugs to, or who was impaired by drugs, or was otherwise mentally or physically helpless.
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What is statutory rape modernly and historically?
Today, SR is unlawful sexual intercourse with a willing person under the age of consent.
Under English commonlaw, was sex with a child under 10. Incorporated into American law as a strict liability offense, and age has varied over the years but most places is under 16 now.
102
What are Romeo & Juliet laws concerning statutory rape?
Romeo & Juliet Laws. A modern legislative trend conferring immunity from statutory rape prosecutions for consensual sexual contact between teenagers.
MPC and some states include provisions permitting sex when age gap between partners is not too large. MPC has a 4-year age gap.
103
Generally, what is the actus reus and mens rea for most theft crimes?
For most theft-related offenses the mens rea is specific intent to permanently deprive another of their possessory interest in an item.
The actus reus is taking of items without consent, from the possession, custody, or control of a person.
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How is the number of theft charges determined?
The number is determined by specific separate incidences of theft, not the number of items stolen.
This applies even if there is one overarching theft scheme.
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How is the number of conspiracies determined when there are multiple crimes involved?
The number of conspiracies charged is based on the number of agreements made, not the number of criminal objectives
106
What were the original theft crimes under historic common law?
Theft crimes began under English common law in the 15th century, with Larceny and Larceny by Trick.
In the 18th century, the crimes of embezzlement and false pretenses were created by parliament. Early American common law followed English precedent.
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What was the common law definition of Larceny?
Trespassory taking and asportation of personal property with intent to permanently deprive.
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What are "bailees" and what are the special larceny rules for them?
Bailees. Someone who held an owner's goods lawfully for transportation or delivery.
Taking entire bale wasn't larceny but "breaking" bulk or bale was larceny.
- Breaking Bulk. Taking part of goods shipped but not packaged together.
- Breaking Bale. Opening packages & taking goods packaged & shipped together
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What are the commonlaw definition and elements of Larceny by Trick?
Trespassory taking and asportation with intent to permanently deprive, accomplished by deception.
Elements were the same as Larceny, plus added elements of false promises and conversion.
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What is the commonlaw definition/elements of Embezzlement?
Embezzlement. The fraudulent conversion of personal property by a person to whom possession of property was entrusted by the owner, with intent to use.
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How is embezzlement distinct from Larceny and False Pretenses?
Embezzlement is distinct from False Pretenses and Larceny in that the property was lawfully obtained, then unlawfully converted.
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What is the definition/elements of False Pretenses?
False Pretenses. Obtaining possession and title to property by means of a materially false representation with intent to defraud.
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How is False Pretenses distinct from Embezzlement and larceny?
False pretenses is distinct from Embezzlement in that property is obtained unlawfully by deception;
Distinct from Larceny in that title/ownership is transferred; whereas in larceny owner retains constructive possession.
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What is the definition of Receiving Stolen Property, historically and modernly?
Historically, prosecuted as accessory after the fact. In the 19th century the crime of receiving stolen goods was conceived.
Today, Receiving Stolen Property is receiving property known to be stolen, with intent to deprive the lawful owner of possession. Often includes "believing" stolen also, to cover sting operations.
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What was the historic definition of *property*, with respect to theft crimes?
Property.
The historic definition of property only included valuable, movable things. Did not include real property, "fixtures" like growing crops or dwellings, or things perceived valueless like pets or wild animals. Included livestock.
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How has the MPC replaced the Commonlaw theft crimes?
MPC has replaced Embezzlement and both forms of Larceny with “unlawful taking and disposition” and False Pretenses with “theft by deception.”
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What is the MPC definition of "theft by unlawful taking or disposition"?
Unlawful taking & disposition. An unlawful taking of movable property with intent to deprive, or
Unlawful transfer of immovable property for benefit of one not entitled to it.
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What is the MPC definition of "theft by deception"?
Purposely obtaining property of another by deception
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How does the MPC define "receiving stolen property?"
Purposely receives, retains or disposes of property of another knowing or believing it is stolen, unless his purpose is to restore it to the owner
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How does the MPC define "property"?
Modernly, the MPC defines property as "anything of value" and provides illustrative (non-exclusive) lists of tangible and intangible property.
121
What is a defense to theft under MPC and some state statutes?
Claim of Right. A defense to theft under MPC & some state statutes; a person believes, mistakenly or unreasonably, that they have a right to the property.
122
What is fraudulent refund?
A type of theft where a person takes item from store, then presents it for a "refund."
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What are the general rules for theft of community party?
Theft of community property is possible if done with intent to permanently deprive owner thereof.
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What is the modern common law definition of Robbery?
Larceny from the person or presence of the victim by violence or intimidation.
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How was robbery conceived historically?
Robbery predated larceny as the oldest property crime, originally conceived as theft from a person by violence. Later constructive violence (causing person to fear bodily injury) was added.
Final common law form of robbery; Larceny plus elements of (1) taking from person and (2) use of force/intimidation) are still used today.
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What are the elements of Robbery?
i) Trespassory taking & asportation with intent to deprive (larceny)
ii) From the person or presence of the victim
iii) By means of force or intimidation.
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What is Carjacking?
Taking of automobile from person by violence or intimidation, with intent to permanently deprive (intent varies by jxn).
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How does the MPC define robbery?
Inflicting or threatening serious bodily injury or another felony, while in the course of committing or fleeing from committing a theft.
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What was the historic common law definition of burglary?
Breaking and entering a dwelling at night with intent to commit a felony therein
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What is the modern common law definition of burglary?
Unlawful entry into or remaining in any structure with intent to commit a felony.
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What is the difference between historic and modern common law burglary?
Historically burglary was breaking & entering a dwelling at night w/intent to commit a felony.
Modernly:
* nighttime requirement is removed
* type of structure doesn't have to be a dwelling, but burglary graded more severely if occupied dwelling.
* target crime not always required to be a felony (MPC) but most states require this.
* Some statutes add "remaining" in structure w/criminal intent.
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When is a burglary complete?
Burglary is complete upon breaking and entering with the required intent even if felony is not committed or is abandoned.
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What are the modern exceptions/defenses to burglary?
No burglary if the premises are at the time open to the public or he is licensed to be there. (common law & MPC).
No burglary if the structure was abandoned (MPC only)
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What is the MPC definition of burglary?
A person is guilty of burglary if he enters a building or occupied structure with purpose to commit a crime therein, unless the premises are at the time open to the public or he is licensed to be there.
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Under the MPC when is burglary a felony?
Graded as a felony if committed in an occupied dwelling at night or while armed with a deadly weapon.
