INTRODUCTION: SETTING THE STAGE
Owens v. State (1992)
After Owens was found asleep behind the wheel of his truck with an open can of beer between his legs and other empties in the vehicle, he was convicted of driving while intoxicated.
A conviction upon circumstantial evidence along is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.
State v. Ragland (1986)
Ragland, a convicted felon, argued that the judge should have informed the jury regarding its power of nullification.
The power of the jury to acquit, despite overwhelming proof of guilt and the jury’s belief, beyond a reasonable doubt, in guilt, is not one of the essential attributes of the right to trial by jury.
PRINCIPLES OF PUNISHMENT
The Queen v. Dudley and Stephens (1884)
Dudley and Stephens killed Parker, with whom they were stranded on the high seas in a lifeboat, in order to survive off Parker’s remains after having run out of food and water.
Homicide may not be excused when the person killed is an innocent and unoffending victim.
People v. Superior Court (DU) (1992) and People v. Du (1991)
After Du was convicted of voluntary manslaughter for killing fifteen year old Latasha Harlins in her liquor store, the Superior Court judge gave Du a suspended sentence.
Du was convicted of voluntary manslaughter after shooting a fifteen year old customer in the back who Du believed was shoplifting at her store.
In determining the possibility of probation, a sentencing court must consider whether the crime was committed because of unusual circumstances, such as great provocation.
United States v. Jackson (1987)
When Jackson committed armed robbery at a bank thirty minutes after he was let out of prison as part of a work release program, he was sentenced as a career criminal, to life in prison without the possibility of parole.
When sentencing under statute that forbids parole, a judge may impose either a life sentence or a specific number of years of imprisonment.
Coker v. Georgia (1977)
After Coker escaped from prison, committing armed robbery and rape while out, he was apprehended, tried, convicted and sentenced to death by electrocution for the commission of rape.
A sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore constitutionally forbidden as cruel and unusual punishment.
Ewing v. California (2003)
When Gary Ewing, after shoplifting three golf clubs, was sentenced to a prison term of 25 years to life under California’s “Three Strikes” law, he argued that the sentence was so grossly disproportionate to the crime that it violated the Eighth Amendment’s ban against cruel and unusual punishments.
The 8th Amendment does not prohibit a state from sentencing a repeat felon to a prison term of 25 years to life under the state’s “3 strikes” law.
MODERN ROLE OF CRIMINAL STATUTES
Commonwealth v. Mochan (1955)
Mochan argued that since his acts did not constitute a statutory crime, he could not legally be indicted and convicted for those acts simply because they constituted a crime at common law.
A person may be prosecuted for committing a common law crime even if such crime has not specifically been enacted into legislation.
Keeler v. Superior Court (1970)
After Keeler assaulted his ex-wife, causing the death of her unborn infant, he was charged with murder.
An unborn but viable fetus is not a “human being” within the meaning of the California statute defining murder.Penal statutes should be construed as favorable to ∆ as its language and the circumstances of its application may reasonably permit.
In Re Banks
The trial court held the State’s “Peeping Tom” statute, under which Banks was charged, to be unconstitutional.
A criminal statute must be sufficiently definite to give notice of the required conduct to be avoided and to guide the judge in its application and the lawyer in defending one charged with its violation.
City of Chicago v. Morales (1999)
Morales challenged an anti-gang ordinace passed by the City of Chicago on the basis that the wording of the statute defining “loitering” was so vague as to make the statute unconstitutional.
A statute providing penalties for criminal conduct is unconstitutionally vague if it fails to give sufficient notice regarding the type of conduct prohibited.
US v. Foster
Foster manufactured methamphetamine and was arrested for possession while driving his truck with a gun zipped up in a bag in the back of the pick up truck.
In order for a defendant who was in a car to be convicted of “carrying” a gun in violation of 18 USC § 924(c)(1), the weapon must have been within the hand’s reach while in the car.
The actus reus of an offense consists of:
1.a voluntary act;
(A)Actus reus is the physical part of the crime.
1.An “act” is a bodily movement, simply a muscular contraction.
2.With a voluntary act, a human being and NOT simply an organ of a human being, causes the bodily action.
3.A voluntary act is an element of every criminal offense. The prosecution must prove this element beyond a reasonable doubt.
(A)Not every act of ∆’s has to be voluntary. It is sufficient that ∆’s conduct included a voluntary act.
Exceptions (involuntary acts):
(a) Mere thoughts are NOT punishable as crimes.
(b) Reflexes / Convulsions
(c) Bodily movement during unconsciousness or sleep
(d) Conduct during hypnosis
Model Penal Code § 2.201(1)
(a)No person may be convicted of a crime in the absence of conduct that “includes a voluntary act or the omission to perform an act of which he is physically capable.”
(i)Does NOT apply to “violations” – offense where max penalty is a fine
1. Liability for a criminal offense may be predicated on an omission, rather than on a voluntary act.
(a) Legal Duty to Act
(b) Knowledge of facts giving rise to the duty
(c) Duty is REASONABLY POSSIBLE to perform
3. When there is a duty to act
(a) Status Relationship (parents to their child, married couples to one another)
(b) Contractual Obligations (can be created by an implied/express contract)
(c) Omissions following an Act
(d) Creation of Risk (a person who wrongfully harms another has a duty to aid the injured party)
(e) Voluntary Assistance (One who voluntarily renders assistance to another in jeopardy has a duty to continue providing aid)
4. Finding the Actus Reus in a statute
(f) Look for the “Social Harm” element
(i.) NO harmful results are required for a conviction.
(a.)i.e.: intentionally driving under the influence
(i.) It does NOT matter how the result occurs, so long as it does occur.
Martin v. State (1944)
Marin, after being arrested at his home, was taken by officers on to the highway, where he manifested a drunken condition.
Criminal liability must be based on conduct which includes a voluntary act or omission to act which was physically possible to have performed.
State v. Utter (1971)
After Utter stabbed his son to death, he asserted the defense of conditioned response, contending that he was incapable of committed a culpable act because he was in an automatic state.
An “act,” within the definition of homicide, must be willed movement.
People v. Beardsley (1907)
Beardsley, who was spending the night with a woman other than his wife, failed to get medical treatment for his companion when she took a fatal overdose of morphine.
While it is the moral duty of every person to extend to others assistance when in danger, a person who fails to act to save the life of someone to whom he does not stand in the legal relation of protector is not chargeable with manslaughter.
Barber v. Superior Court (1983)
When Herbert, permanently comatose following surgery, was taken off of artificial respiration and nutrition, leading to death, Barber, his physician, was charged with murder.
Absent objection from the spouse of one permanently comatose, a doctor is under no legal duty to keep the patient alive through forced respiration and nutrition. Life sustaining treatment MUST be continued when it is proportionate; that is the treatment MUST be continued as long as the benefits outweigh the costs.
1. A culpable state of mind.
2. The second required element of a crime.
(a) Exceptions (crimes NOT requiring a mental state)
(1)Negligence / Recklessness
(2)Strict Liability (NO mens rea required)
ii. Broad Meaning (“culpability” meaning)
1. A “guilty mind,” “vicious will,” OR “morally culpable state of mind.”
(a) A ∆ is guilty of a crime if he commits the social harm of the offense with any morally blameworthy state of mind.
iii. Narrow Meaning (“Elemental” meaning)
1. The particular mental state provided for in the definition of an offense.
(a) A person may possess “mens rea” in the culpability sense of the term, and yet lack the requisite elemental “mens rea.”
(b) A ∆ is NOT guilty of an offense, even if she has a culpable frame of mind, if she lacks the mental state specified in the definition of the crime.
iv. “General” Intent vs. “Specific” Intent
(a) All that must be shown is that ∆ desired to commit the act which served as the actus reus.
(b) CAN be inferred by a jury.
(c) It must be shown that ∆, in addition to desiring to bring about the actus reus, MUST have desired to do something further.
(d) MUST be proved in Court.
(e) A Specific Intent offense is one in which the definition of the crime:
(1.)includes an intent or purpose to do some future act, or to achieve some further consequence beyond the conduct or result that constitutes the actus reus of the offense; OR
(2.)provides that the actor MUST be aware of a statutory attendant circumstance.
(a.)Burglary (intent @ time of entry to commit felony in another’s home)
(b.)Larceny (Intent to perm. deprive another’s interst in property)
(c.)Receiving stolen property w/ knowledge that it is stolen
(d.)Attempt (intent to complete the crime)
(e.)Conspiracy (intent to have the crime completed)
(f.) 1st Degree Murder (premeditated intent to kill another)
1. Mental element of a crime
2. an unexcused intention to do some further act
3. when D intended a particular result
5. Definition of a crime includes intent and provides actor is aware of statutory circumstance.
6. TWO STATES OF MIND, ONE EXECUTED AND ONE UNEXECUTED. BURGLARY
1. Broader question of D blameworthiness or guilt
2. intent to do the act proscribed, to strike another in the case of assault
3. When D intends the natural and probable results and legal consequences.
4. knowledge, recklessness, or negligence
v. Frequently used Mens Rea terms
(a) An actor’s purpose, desire or objective to cause the result.
(1.)Intent involves SUBJECTIVE fault (possess a wrongful state of mind)
(2.)If ∆ lacks either (a) the desire to cause the social harm, OR (b) the conscious awareness that the harm will result from his conduct, he has NOT intentionally caused the harm.
2. “Knowingly” or “With Knowledge”
(a) A person has “knowledge” of a material fact
(1.) if he is aware of the fact; OR
(2.)he correctly believes that it exists.
(a) “intentional,” “an act done w/ a bad purpose” or w/ “an evil motive”
(b) An “intentional violation of a known legal duty,” or “a purpose to disobey the law.”
(a) Conduct deviating from the standard of care that a reasonable person would have observed in the same situation.
(a) Where an actor disregarded a substantial and unjustifiable risk of which he was aware – MORE culpable than negligence
(a) Intentionally or recklessly causing the social harm prohibited by the offense.
vi. Statutory Interpretation: What elements does a Mens Rea term modify??
1. If a statute is NOT clear on its face, courts seek to ascertain the legislative will.
2. Courts can also consider the structure of a statute, taking into consideration rules of grammar.
(a) A single mens rea term modifies EACH actus reus element of the offense.
(b) If the culpability term follows various actus reus elements, but precedes others, a court might conclude that the mens rea element applies in a “forward,” but NOT “backward” direction.
3. When the definition of a criminal offense is SILENT regarding the matter of culpability as to a material element of the offense, the material element is established if a person acts purposely, knowingly, or recklessly.
vii.Model Penal Code § 2.02
1. A person may NOT be convicted of an offense unless he acted:
(c) recklessly; OR
(e) with respect to EACH material element of the offense.
(1.)INTENT is NOT addressed in the MPC
2. The Code REQUIRES the prosecution to prove that ∆ committed the actus reus of the offense – each ingredient of the offense – w/ a culpable state of mind.
3. The terms apply to elements of the crime as well as elements of a defense.
4. Culpability Terms
(1.)A person acts “purposely” w/ respect to attendant circumstances if:
(i.) he “is aware of the existence of such circumstances,” OR
(ii.) he believes or hopes they exist.
(iii.)Specific Outcome is what I want
(1.)A result is “knowingly” caused if the actor is aware that it is practically certain that his conduct will cause such a result.
(2.)Specific Outcome NOT necessary
(3.)A person acts “knowingly” w/ respect to attendant circumstances and conduct elements is:
(i.) he is “aware that his conduct is of that nature; OR
(ii.) he is “aware” that such attendant circumstances exist.
(a.)Purchasing stolen property AND knowing that the property was stolen when purchased.
(4.)Subjective Test is used to determine a person’s knowledge.
(i.) Whether the actor actually knew or believed something
(1.)“Consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct.”
(i.) “Substantial & Unjustified Risk”: Disregard involving a gross deviation from the standard of conduct that a law-abiding citizen would observe in the situation.
(a.)ALL circumstances known to ∆ MUST be considered.
(2.)MUST be aware of the risk (See Subjective Test)
(3.)Involves BOTH objective and subjective elements
(1.)A person’s conduct is “negligent” is the actor should be aware of the substantial and unjustifiable risk that the material element exists OR will result from his conduct.
(2.)OBJECTIVE TEST is used (HIGHER than reasonable man in torts)
(3.)∆’s physical characteristics are relevant in making this determination if they prevent him from perceiving or avoiding a risk.
(i.) Is the ∆ blind?
(ii.) Did ∆ just suffer a medical condition (heart attack)?
5. Strict Liability Crimes
(a) Crimes for which NO culpable mental state at all must be shown.
(b) Rules for Interpretation
(1.)“Public Welfare Offenses” are generally characterized by the following factors:
(i.) the violation is in the nature of neglect or inaction, rather than positive aggression;
(ii.) there is NO direct injury to person/property, but simply a danger of such, and it is this danger that the statute seeks to curtail;
(iii.)the penalty prescribed is small; AND
(iv.)conviction does NO grave damage to ∆’s reputation
(c) NOT applicable where the statute merely codifies a common law crime.
(d) Under the MPC, if strict liability is applied to any material element of an offense, the offense can ONLY be a violation (a minor offense – fines)
6. Mistake of Fact/Law
(a) Under the MPC § 2.04(1), ignorance or mistake as to a matter of fact or law is a defense if:
(1.)the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense; OR
(2.)the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
(b) If the crime requires a showing of intent or knowledge, even an unreasonable mistake negating such intent or knowledge will block conviction under the MPC.
(c) Under NO CIRCUMSTANCES does a person’s mistake of fact/law negate his criminal responsibility for violating a strict liability offense.
(d) Under COMMON LAW, ignorance of the law is NO excuse.
(e) A mistake of law, whether reasonable or unreasonable, will NOT usually negate any mens rea element found in the definition of the crime.
United States v. Cordoba-Hincapie (1993)
No facts in book
An act does not make the doer of it guilty, unless the mind is guilt; that is unless the intent be criminal.
Regina v. Cunningham (1957)
When Wade was partially asphyxiated by seeping gass after Cunningham stole the gas meter from the basement of her building, Cunningham was charged and convicted for the injury to Wade.
Malice requires either an actual Intnetion to do the particular kind of harm that was in fact done or recklessness as to whether such harm should occur or not.
People v. Conley (1989)
In a fight outside a large party, Conley hit Sean O’Connell in the face with a wine bottle, breaking both his jaws, other facial bones, and some of his teeth.
A person who, in committing a battery, intentionally or knowingly causes great bodily harm or permanent disability or disfigurement commits aggravated battery.
State v. Nations (1984)
Nations owned and operated a bar where police found a sixteen year old girl dancing for tips
To “knowingly” engage in criminal conduct, a defendant must have actual knowledge of the existence of the attendant circumstances which constitute the crime.
US v. Morris (1991)
Morris was tired and convicted for releasing a “worm” into network computers around the country, causing them to either crash or become “catatonic.”
To obtain a conviction under the Computer Fraud and Abuse Act, the government need only prove that the defendant intended to access a federal-interest computer, not that he intended to cause loss or damage.
US v. Cordoba-Hincapie (1993)
No facts in book
Criminal liability is permitted to attach without regard to fault in instances in which the actor’s conduct involves minor violations of public welfare laws.
Staples v. United States (1994)
When Staples was convicted because he had not registered in the Naitonal Firearms Registration and Transfer Record a rifle which had been modified to be capable of fully automatic fire, he claimed that he did not know of the rifle’s automatic firing capability.
When construing a statute as dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement.
Garnett v. State (1993)
Garnett, a twenty year old retarted man was convicted of second degree statutory rape for having intercourse with a 13 year old girl.
The state statute prohibiting sexual intercourse with underage persons makes no reference to the actor’s knowledge, belief, or other state of mind.Statutory rape is a strict liability offense, thus, even a reasonable belief by ∆ that the girl was over the age of consent is NO DEFENSE. (1)Exception:MPC allows for a “mistake defense” when the girl is over ten years of age, but less than 16 years of age
People v. Navaro (1979)
When Navarro was charged with grand theft for taking four wooden beams from a construction site, he unsuccessfully requested the court to instruct the jury that if he in good faith believed he had the right to take the beams, he should be acquitted, even if his belief is unreasonable.
If one takes personal property with the good faith belief that the property has been abandoned or discarded by the true owner, he is not guilty of theft, even where such good-faith belief is unreasonable.
People v. Marreo (1987)
Marrero, charged with illegal firearms possession, argued that he mistakenly believed himself to be exempt from the ambit of the statute proscribing possession.
A good faith mistaken belief as to the meaning of a criminal statute is not defense to a violation of the statute.
Cheek v. United States (1991)
When Cheek was charged with willfully failing to file a federal income tax return and willfully attempting to evade his income tax, he argued that because he sincerely believed that the tax laws were invalid, he had acted without the willfulness required for conviction.
Any person who willfully attempts to evade or defeat the requirement that he pay a tax on his income shall be guilty of a felony where it can be shown that he knows and understands the law.
CHAPTER 6 (CH. 14 UB)
viii. BOTH cause-in-fact and proximate cause MUST be present for a conviction
1. Intent does NOT matter
ix. Cause-In-Fact (“But For”)
1. The “but for” antecedent of the result.
(a) “But for” ∆’s voluntary acts, would the social harm have occurred when it did?
(b) “But for” ∆’s voluntary acts, would the social harm occurred when AND how it did? (Concurrent sufficient causes)
(1.)If NO, ∆ is LIABLE
(c) ∆ MUST have acted w/ the requisite mens rea, and he MUST also be the proximate cause of the social harm.
(i.) “Substantial Factor” Test: When (2) ∆s, acting independently and NOT in concert w/ each other, commit two separate acts, each of which alone is sufficient to bring about the prohibited result.
x. Proximate (“Legal”) Cause
1. Under MPC, an act is the proximate cause of the harmful result if it is:
(a) not too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability; OR
(b) on the gravity of his offense.
2. An act that is a direct cause of the social harm is ALSO a proximate cause of it.
3. A ∆ CANNOT be convicted for homicide if the victim did NOT die until a year and a day following ∆’s act.
(a) Unintended Victims
(1.)Does NOT prevent ∆’s act from being the proximate cause of the actual harm.
(2.)Courts apply the doctrine of transferred intent
(b) Intervening Events
(1.)Intervening Actions: providing the necessary means for another person to do harm was not to cause the harm oneself
(2.)Termporal Intervals: the longer the interval, the more plausible it becomes that but for Δaction, the victim might have suffered some other misfortune, and that some other undetected factor has caused the result.
(3.)Act by the victim: if the victim causes further injury to himself, the Δ would still be liable
xi. Model Penal Code
1. Uses “but for” test. To be guilty of an offense, a person’s conduct MUST cause the prohibited result.
Oxendine v. State
To obtain a conviction for manslaughter, the state MUST show that defendant’s conduct accelerated the victim’s death.
Kibbe v. Henderson
A homicide conviction REQUIRES a finding that defendants could have FORSEEN that his conduct would result in the victim’s death.
Valazquez v. State (1990)
No facts in book
There can be no criminal liability for result-type offenses unless it can be shown that the defendant’s conduct was a cause in fact of the prohibited result.
State v. Rose (1973)
McEnery was struck by Rose’s car. The car sped away from the scene without its driver attempting to assist McEnery, whose dead body was later found lodged beneath Rose’s car.
A defendant cannot be convicted of manslaughter unless the evidence establishes beyond a reasonable doubt that his victim was still alive at the time the defendant’s culpable conduct commenced.
de defines rape solely in terms of the male’s acts of aggression and does not require proof of resistance by the victim.
§ 8.03 Marital Immunity Rule
At common law, a husband could not be guilty of raping his wife. The majority of states retain a partial exemption under which immunity does not apply if the parties are legally separated or are living apart at the time of the rape.
A minority of states maintain a total exemption for marital rape, while at least twelve states have abolished the rule.
The Model Penal Code recognizes a partial marital exemption that bars a rape prosecution against a spouse or persons “living as man and wife,” although they are not formally married. More stringent than the majority exemption, the only exception to the marital immunity rule is for spouses living apart under a formal decree of separation. [MPC § 213.6(2)]
§ 8.04 Evidentiary Issues at Rape Trials
[A] Corroboration Rule – At common law, the testimony of the alleged rape victim did not need to be corroborated in order to convict for rape. However, a minority of states, by statute or case law, have instituted a corroboration requirement.
The Model Penal Code imposes a corroboration requirement. [MPC § 213.6(5)] [B] Rape-Shield Statutes – If the defendant contends that the female consented to sexual intercourse with him on the occasion of the alleged rape, evidence of prior consensual sexual acts between the accused and the victim is admissible. However, today, most states bar evidence of the alleged victim’s prior consensual sexual activity with persons other than the accused and her reputation for lack of chastity under the so-called “rape-shield” laws.
The Model Penal Code is silent regarding the admissibility of evidence of the alleged victim’s sexual history or reputation for chastity.
[C] Rape Trauma Syndrome – Rape Trauma Syndrome (RTS) is a set of acute and long-term symptoms resulting from a rape or attempted rape. In the acute phase, a rape victim is as apt to appear calm and subdued immediately after an attack as she is to manifest fear, anger, or anxiety. Many woman in the acute phase also experience physical symptoms, such as tension headaches, fatigue, and disturbed sleep patterns. In the long-term phase, many rape victims develop phobias related to the circumstances of the rape.
There is a split of authority regarding the scientific reliability and, therefore, admissibility of RTS evidence. Jurisdictions that permit RTS expert testimony often admit it only for limited purposes, e.g., to explain the fact that the alleged victim appeared calm immediately after the rape if such conduct would likely be viewed by jurors as inconsistent with a claim of rape. Generally, however, RTS may not be introduced as proof of the commission of the rape itself.
The Model Penal Code is silent regarding the admissibility of evidence of RTS.
§ 8.05 Other Sex Crimes
[A] Statutory Rape – Today, “statutory rape” remains an offense in most states. Many states apply a two-level approach to this offense: sexual intercourse with a very young girl (e.g., twelve years of age or younger) remains punishable at the level of forcible rape; intercourse with an older girl (especially if the male is older than the female by a specified number of years) is a felony of a lesser degree.
The Model Penal Code does not recognize any strict liability crimes, and thus does not recognize statutory rape, although it does punish sexual intercourse by a man with a female less than 10 years of age if he knew or should have known the female’s age.
[B] Gross Sexual Imposition – Unlike the common law, the Model Penal Code does not provide for rape on the basis of fraud. However, such conduct does constitute the offense of gross sexual imposition. Subject to the marital immunity exemption, a male is guilty of gross sexual imposition if he has sexual intercourse with a female in any one of three circumstances:
(1) the female submits as the result of a “threat that would prevent resistance by a woman of ordinary resolution,” e.g., if the woman is threatened by a supervisor with loss of employment. [MPC § 213.1(2)(a)] (2) a male has sexual relations with a female with knowledge that, as the result of mental illness or defect, she is unable to appraise the nature of his conduct. [MPC § 213.1(2)(b)] (3) a male knows that the female is unaware that a sexual act is being committed upon her or that she submits because she mistakenly believes that he is her husband. [MPC § 213.1(2)(c)] §8.06 Rape Mens Rea
A person is not guilty of rape if he entertained a genuine and
Reasonable belief that the female voluntarily consented to intercourse w/ him
State v. Alston (1984)
Alston contended that his rape conviction had been improper because the prosecution had not proven that he used force against his exgirlfriend.
Use of actual or constructive force to procure victim compliance is an element of rape.
Rusk v. State (1979)
A woman pressed rape charges against Rusk, contending that, although she did not resist him, she feared for her safety if she didn’t consent to sex with him.
To commit rape, a perpetrator must obtain the victim’s compliance by force or threats.
State v. Rusk (1981)
The Court of Special Appeals overturned Rusk’s rape conviction because it found the victims fear was unreasonable.
The reasonableness of a victim’s apprehension of fear is a question of fact for the jury to determine
Commonwealth v. Berkowitz (1992)
B was alleged to have raped a fellow student when she visted his college dormitory
Whether there is sufficient evidence to demonstrate that an accused engaged in sexual intercourse by forcible compulsion is a determination that will be made in each case based on the totality of the circumstances.
State of New Jersey in the Interest of MTS (1992)
MTS contended that, because he had not used force to have nonconsensual intercourse with a fifteen-year-old, he could not be guilty of sexual assault. He penetrated her while she was asleep after heavy petting.
Force necessary to constitute sexual assault need not use more force than that necessary to perform the sex act. So, you don’t have to be forceful, you just have to do it without permission.
People v. John Z.(2003)
When John Z. was convicted for forcible rape, he argued that forciable rape is not committed if the femail victim consents to an initial penetration, then withdraws her consent, but the male continues against her will.
Withdrawal of consent nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse.
Commonwealth v. Sherry (1982)
Sherry and other defendants charged with rape contended that the prosecution had to prove actual knowledge of lack of consent by the victim.
In order to obtain a conviction in a rape prosecution, the state does not need to prove actual knowledge of nonconsent.
Boro v. Superior Court (1985)
Boro convinced Ms. R. that she would dies unless she had sexual intercourse with him to cure her of a fatal disease.
Intercourse induced by fraud does not constitute rape.
State v. Herndon (1988)
No facts in book
Evidence about a victim’s chastity has far too little probative value on the issue of consent to justify extensive inquiry into a victim’s sexual history.
Lewis v. Wilkinson (2002)
When the trial court refused crossexamination of the alleged victim, under the state’s rape shield law, concerning diary entries she had made which might have shown her motive to fabricate, Lewis argued that the Confrontation Clause permitted an opportunity to conduct the requested cross-examination.
Diary statements inferring victim’s intent and motive to fabricate my have sufficient probative value to outweigh violation of a rape shield law.
Garnett v. State (1993)
Garnett, 20 year old retarted man, was convicted of 2nd degree statutory rape for having intercourse with a 13 yr old girl.
The state statute prohibiting sexual intercourse with underage persons makes no reference to the actor’s knowledge, belief, or other state of mind.
GENERAL DEFENSES TO CRIMES
CHAPTER 9 (UB Ch. 16)
1. Conduct that is otherwise criminal, which under the circumstances is socially acceptable and deserves neither criminal liability nor censure.
2. ∆ MUST raise the issue of justifiable use of force by introducing some evidence tending to show justification as an affirmative defense.
(a) Utilitarian: Necessary to prevent a greater evil
(b) Retributivism: NO punishment because the ∆ does NOT deserve it.
(a) To be justified, the responsive conduct MUST:
(1.)be necessary to protect or further the interest at stake, AND
(2.)cause ONLY a harm that is proportional or reasonable in relation to the harm threatened or the interest to be furthered.
(a) The right to defend oneself against the use of unlawful force.
(1.)Resist unlawful force (∆ MUST have resisted use of unlawful force)
(i.) The threat MUST be imminent (immediate / pressing & urgent)
(2.)Force MUST NOT be excessive (NO more than reasonably necessary)
(3.)NO deadly force (unacceptable unless danger resisted is also deadly)
(i.) Uses an objective “reasonable belief” standard
(4.)Can’t be the AGGRESSOR (∆ CANNOT start the fight)
(i.) If ∆ starts as a deadly aggressor, the ONLY way he can gain the right of self-defense is by giving NOTICE of his withdrawal from the conflict.
(ii.) When the victim of a nondeadly assault responds w/ deadly force, the original aggressor regains the right of self-defense.
(5.)Retreat (∆ must NOT have been in a position to retreat to safety)
(i.) NOT req’d if attack takes place in ∆’s dwelling (“Castle” exception)
(ii.) NOT required if ∆ uses ONLY non-deadly force.
(c) Battered Wife Syndrome
(1.)Manifested by a psychological condition of low self-esteem and a psychological state of learned helplessness.
(2.)NOT a legally recognized defense.
(i.) Used to show the condition of ∆ when establishing subjective standard of reasonableness
(d) Random Hypos
(1.)A ∆’s right to self-defense “transfers” from the intended to the actual victim (NOT absolute)
(2.)Self-defense IS ALLOWED when resisting unlawful arrest.
5. Defense of Others
(a) A person is justified in using force to protect a third party from unlawful use of fo