I. Punishment
A. Functions of Punishment
1. Retribution
2. Specific deterrence
3. General deterrence
4. Rehabilitation
II. Defining an Offense
A. 4 categories of elements of crime:
1. Act (actus reus)=all crimes
2. Mental state requirement (mens rea)=most crimes
3. Circumstance elements=sometimes, but not always
4. Result elements=act cause a certain result, i.e. homicide—rare
III. Actus reus
A. Actus reus: to be convicted of a crime, D must have committed a criminal act
1. Requires either relevant voluntary act or omission to act when there is a legal duty to do so
B. Voluntary acts
1. Every conviction requires proof that D committed voluntary act
2. Require that act be voluntary, otherwise deterrence/retribution interests not served
3. MPC approach: 2.01—requires voluntary act, but refuses to define “voluntary”
C. Omissions
1. Will find omission where show that D:
a. had legal duty to act
i. based on statutes, special relationships, contractual obligations, voluntary assumptions of care, D’s creation of peril, duty to control 3rd parties, status as landowner)
b. requisite knowledge
i. in most Jxes, D must be aware of facts giving rise to duty (some Jxes require awareness of law)
c. possible for D to act
i. no liability where omission was due to fact that lacked means/ability to perform
d. MPC approach: same as cl—can be convicted based on omission
IV. Mens Rea
A. Introduction to mens rea
1. Mens Rea = “mental culpability”
a. Def: sufficient to prove D acted with a general culpable state of mind
b. Why mens rea:
i. Protects those that accidentally/innocently cause harm
ii. Policy: helps define behavior society wishes to prevent/punish; retributive purposes served by punishing those who are culpable
B. Model Penal Code § 2.02
1. § 2.02 = majority rule
2. Review structure of § 2.02
a. Purpose = “conscious object”
i. Aim/goal/objective/designed/with design/intentionally/with intent
b. Knowledge = “awareness” or “practical certainty”
i. willfully
c. Recklessness = “Conscious disregard of substantial and unjustifiable risk”
i. Requires awareness
d. Negligence = D should have recognized substantial and unjustifiable risk
i. “objective” std b/c doesn’t require evidence that D was aware of risks associated with behavior
3. Review § 2.02 (3)-(10)
a. Distinguishing purpose from knowledge: purpose connotes desire to have harm occur; knowledge connotes callousness as to whether harm occurs
i. E.g.: Selling a weapon to someone who obviously intends to kill
b. Distinguishing knowledge from recklessness: knowledge requires awareness of extremely high likelihood that harm will occur; recklessness requires awareness of moderately high likelihood that it will occur — difference only in degree
c. Distinguishing recklessness from negligence: recklessness requires subjective awareness of the likelihood of harm; negligence is satisfied if we can say that someone in that position SHOULD have been aware of the likelihood of harm — difference in kind
d. The hierarchy of culpability terms under the MPC
e. When no culpability term appears in an offense, use recklessness; if only one term appears, use that term for all elements within the offense
C. Common Law approach to mens rea
1. “Specific Intent” vs. “General Intent”
a. Specific: requires proof of the act and mens rea, plus a 2nd mens rea requirement (can refer to (1) intent to commit act in future (breaking & entering with intent to commit a felony) , (2) special motive/purpose in committing crime (hate crimes), (3) awareness of special attendant circumstance surrou
take of fact defense)—strict liability crime
i. Some states have enacted statutes making prosecution prove recklessness/negligence that she was under 10
4. Some Jxes require negligence as to age (defense = honest and reasonable mistake)
5. Traditional approach: strict liability as to age, so no defense
a. Policy reasons for statutory rape: potentially to protect young people from sexual predators, to provide backup punishment in cases involving acquaintances
6. MPC Approach
a. §213.1(d), 213.3—rape if female under 10, strict liability
i. Rape if under 16, and D 4 years older, under 21 and D=guardian—honest and reasonable mistake to age is a defense if proven by a preponderance of the evidence
b. § 213.6(1)—no mistake defense as to age if under 10—only defense = no sex
c. Policy: want to preserve experimentation among contemporaries
B. Forcible Rape
1. Definition: Sexual intercourse by physical force or threat of physical force, without victim’s consent
a. Must have nonconsent and some type of force
2. Mens rea with respect to lack of consent: most Jxes require proof of negligence. Some require proof of recklessness.
i. Can use mistake of fact defense—honest and reasonable belief that she consented (Morgan case)
b. Majority rule: prosecution must prove D was at least negligent with respect to lack of consent
c. Minority rule: prosecution must prove recklessness
d. Other Jxes make forcible rape a strict liability crime
