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Criminal Law
Rutgers University, Newark School of Law
Francione, Gary L.

Criminal Law- Francione Fall 2011
Chapter 3
I. The Actus  Reus Requirement
Four basic elements of Crime
1. a voluntary act
2. a prohibited mental state
3. a chain of causation that links the defendant’s action’s with the social harm
4. concurrence between mens rea (guilty mind) and actus reus.
actus rea requirements:
a person should not be convicted solely on the basis of their thought but must have also done something that caused a social harm.
act must not have been compelled or committed by the government itself.
defendant’s act must have been voluntary.
there can be no criminal liability for an omission unless the person who failed to act had a legal duty to act.
“status crimes” are unconstitutional- not simply for being a certain kind of person.
A. Acting vs Thinking: Prescription Against Thought Crimes
Hate Crime
hate crime statue: requires the individual committed some predicate offense set out in the statute with the animus (animosity toward a protected group) specified in a hate crime statute.
hate speech law: does not require acts.
Wisconsin v. Mitchell
Supreme Court of U.S. (1993)
Facts: On October 7, 1989, Todd Mitchell, a young black man, instigated an attack against a young white boy. He was subsequently convicted of aggravated battery in the Circuit Court for Kenosha County. According to Wisconsin statute, Mitchell's sentence was increased, because the court found that he had selected his victim based on race. Mitchell challenged the constitutionality of the increase in his penalty.
Procedural History: Mitchell challenged the constitutionality of the increase in his penalty, but the Wisconsin Court of Appeals rejected his claims. However, the Wisconsin Supreme Court reversed.
Issue: Was the enhanced penalty to Mitchell’s sentence prohibited by the 1st and 14th Amendments?
Court Holding: Mitchell’s first rights were not violated by the application of the Wisconsin penalty enhancement provision in sentencing him.
Rationale: The trial court did not address the issue of Mitchell’s First Amendment challenge. A physical assault is not an expressive conduct provided by the First Amendment. Under Wisconsin law, the same criminal conduct law may be more heavily punished if the victim is selected because of his race or other protected status than if no such motive obtained.
Policy: Wisconsin singles out for enhancement bias inspired conduct because this conduct is thought to inflict greater individual and societal harm. Bias motivated crimes are more likely to provoke retaliatory crimes.
B. Acting on One’s Own v. Acting Under State Compulsion “Situational Offenses”
Martin v. State
Alabama Court of Appeals (1944)
Facts: The Defendant was arrested by police officers at his home and taken onto the highway. While on the highway, he manifested a drunken condition by using loud and profane words. For his conduct on the highway, the Defendant was convicted of being drunk on a public highway. He thereafter appealed his conviction.
Procedural History: Trial cour convicted, court of appeals reversed and remanded.
Issue: Is the Defendant’s conviction proper under the circumstances?
Court Holding: Conviction was reversed and rendered because the accused was involuntarily and forcibly carried to the highway be arresting officer.
Rationale: Under the statue, a voluntary appearance is presupposed and since the accused was forcible carried the principle of the conviction cannot apply to him.
C. Acting Voluntary v. Acting Involuntary: The Unconsciousness Defense

had an epileptic seizure on the train which resulted in him grabbing a woman and refused to let go. Before his sentencing, he showed videotape of him having seizures. He voluntarily stopped taking medication and was filmed at hospital to show his seizure symptoms.
Issue: Should the plaintiff be cleared because he was unconscious when he assaulted a woman?
Holding: A judge dismissed the verdict after seeing videotape of Vining having seizure.
D. Acting v. Failing to Act: Liability for Omissions
Criminal liability can be based on omission if the defendant had a legal duty to act and was physically capable of acting. The omission replaces the voluntary act and must cause the societal harm and must act with mens rea.
Five situations when individuals have a duty to act:
When there is a special relationship- husband and wife
When the defendant enters into a contract requiring him to explicitly or implicitly to act a certain way- contractual duty to provide for elderly
When there is a statutory duty- duty to pay taxes.
When the defendant creates the risk of harm to the victim.
When the defendant, who otherwise would not have a duty to ac, voluntarily assumes care of a person in need of help.
Criminally Liable must entail:
Defendant must have been physically capable of acting.
Defendant must have known of the facts giving rise to the need for action.
There is no general rule to rescuing a stranger.