Any Social Harm Defined and Made Punishable by Law

What is a crime?

-Any social harm defined and made punishable by law.

-Requires proof beyond a reasonable doubt

Greenwalt on Punishment:

1. It is performed by and directed at, agents who are responsible in some sense.
2. It involves designedly harmful or unpleasant consequences.
3. The unpleasant consequences are usually preceded by a judgment of condemnation.
4. Subject of punishment is explicitly blamed for committing a wrong
5. It is imposed by one with the authority to do so.
6. It is imposed for a breach of some established rule or behavior.
7. It is imposed on an actual or supposed violator of the rule of behavior.

Retributivism: grounded in notions of moral desertion / backward looking

Utilitarianism: concerned with broader benefits for society / forward looking (rehabilitation, incapacitating, deter crime)

Ex. Queen v. Dudley & Stevens (case where guys eat other guy on boat)

-Retributivist view = taking an innocent life is wrong, no matter the circumstances and as such, Dudley & Stevens should be punished.

-Utilitarian view = this is a single, isolated incident and as such, punishing Dudley and Stevens does not benefit society. Further, this is such an extreme event that there is likely no deterrent value to punishing them (ie. anyone in the same position would probably do the same thing)

Principle of Legality: “no crime without law, no punishment without law”

-Criminal statutes should be understandable to reasonable law-abiding citizens

-Should be crafted so that they do not delegate basic policy matters to police, judges, and juries for resolution on an ad hoc and subjective basis. (no judicial law making)

-Judicial interpretation of statutes should be biased in favor of the accused

• ^^^Lenity Doctrine

ACTUS REUS:

the physical or external part of the crime

-Includes both the conduct AND the harmful result

• Actus  voluntary physical movement
• Reus  fact that this conduct results in a certain proscribed harm

MPC 2.01: “Requirement of a Voluntary Act; Omission as Basis of Liability; Possession as an Act” pg. 947

• A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
• NOT VOLUNTARY ACTS:
• Reflex/convulsion
• Bodily movement during unconsciousness or sleep
• Conduct during hypnosis or resulting from hypnotic suggestion
• Bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
• Omission does NOT constitute liability unless:
• Law makes his omission a crime
• There was a legal duty to act example of legal duty:
• 1. Statute imposes a duty
• 2. Certain status relationship to another
• 3. Where one has assumed a contractual duty to care for another
• 4. Where one has voluntarily assumed the care of another and has so secluded the helpless person as to prevent others from rendering aid
• 5. When a person creates a rise of harm to another
• Moral duties do not matter
• Possession = act when,
• Possesor knowingly procured or received the thing possessed OR was aware of his control thereof for a sufficient period to have been able to terminate his possession.

MENS REA:

mental elements of crime

-Culpability Approach: guilty mind

-Elemental Approach: represented by statutes that set out the mental element that the prosecutor has to prove.

Result Crime = law is punishing you because of unwanted result.

Conduct Crime = law is punishing your conduct (solicitation, DUI, etc.)

General Intent Crime = Crime doesn’t specify a requisite mental state that the actor must have acted with to be convicted of the crim.

Specific Intent Crime = Crime includes a specific mental state in the statute that the prosecutor must show in order to convict.

Common Law Intent:

-PURPOSE and KNOWLEDGE

• Prosecutor must prove either one to satisfy intent UNLESS the statute identifies “intent” more specifically.

MPC 2.02: “General Requirements of Culpability” pg. 947

-Cannot convict someone of a crime unless he acted purposely, knowingly, recklessly, or negligently with respect to whichever element the law requires.

• Purposely:
• It is his conscious object to engage in the conduct or cause the result to happen AND
• If the element involves attendant circumstances, he is aware of the existence of such circumstances OR he believes/hopes they exist.
• Knowingly:
• He is aware that his conduct is of that nature
• He is aware that his conduct is practically certain to cause the result
• Knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.
• Recklessly:
• Actor consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. (The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation).
•  Aware of the risk but don’t act accordingly
• Negligently:
• Actor should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. (The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.)
•  Not aware of the risk, but should be

-If no element required by statute  must prove purposely, knowingly, or recklessly

-If law requires a lower mental state  you can prove that mental state or higher

-Willfully = knowingly (unless a purpose to impose further requirements appears)

-NO STRICT LIABILITY CRIMES IN THE MPC if strict liability, its only a “violation” MPC 2.05 (obsessed with mens rea)

***If you want to make an act a crime under MPC, require mens rea proof of at least negligence.

MISTAKE OF FACT and LAW:

COMMON LAW: Mistake of Fact

-General intent only a reasonable mistake of fact is a defense

• Moral Wrong Doctrine: Mistake was reasonable, but conduct was immoral.
• Court’s will sometimes allow the conviction.
• Ex. Woman is confronted by man, thinks he is a mugger (ends up being a cop) so she strikes him. Because court’s look at conduct through the eyes of D, moral wrong doctrine wouldn’t apply because her conduct wasn’t immoral.
• Legal Wrong Doctrine: Mistake was reasonable, but conduct was illegal.
• D can be convicted of the more serious offense that his conduct established.
• Ex. D was reasonably mistaken about the age of recipient of child porn (believes he’s 18, but he’s actually 17). If D is prosecuted under law that prohibits giving child porn to minors (not just distributing illegal porn) he can be convicted under the legal wrong doctrine even though the mistake of fact was reasonable. (“I thought I was giving it to an adult!” because the distribution is already illegal, mistake of fact is no longer a defense.)

-Specific intent reasonable OR unreasonable mistake of fact, if genuine, is a defense when it negates the specific mental element of the crime.

• People v. Navarro: charged with grand theft which is a specific intent crime (trespassory taking AND with the intent to steal)  Ct held that Navarro could not be convicted because his mistake of fact (believing that the wooden beams were abandoned in the construction site and thus he had the right to take them) negated the mens rea required to prove that he had the intent to steal them (can’t steal something that doesn’t have an owner).

Mistake of fact is NOT a defense for strict liability crimes.

Willful blindness is NOT a defense.Mistake of Law almost never a defense under CL. Same exceptions as MPC listed below are when it can be a defense.

MPC:2.04 pg. 950

-Ignorance or mistake as to a matter of fact or law is a defense if:

• The ignorance/mistake negates the mens rea element OR
• The law provides that the state of mind established by such ignorance/mistake constitutes a defense.
• NO DEFENSE IF  D would be guilty of another offense had the situation been as he supposed. (in this situation, ignorance/mistake can reduce the grade and degree of the offense. )

-Belief that conduct does not constitute an offense is a defense when:

• NOTICE: The statute is not known to the actor AND it has not been published or otherwise reasonably be made available prior to the conduct alleged OR
• OFFICIAL STATEMENT: Acts in reasonable reliance on an official statement of the law, afterward determined to be erroneous.
• D must prove these defensed by a preponderance of the evidence.

***Same child porn distribution hypo as above  under MPC, D would be convicted under the more serious statute (giving to minors) but would be punished under the less serious statute of giving porn to adult.

ATTACK:

If specific intent:

 Does mistake of fact relate to specific intent element?

-If YES: determine if the mistake of fact negates the specific intent element.

-If NO: treat offense as general intent.

-****Doesn’t matter if mistake was reasonable or unreasonable.

If general intent:

 Did D act in a morally blameworthy way?

-If YES: If mistake was reasonable, it is not blameworthy. If mistake was unreasonable, it is blameworthy.

-If NO: not guilty.

If strict liability:

 Mistake of fact is never a defense. UNLESS  moral wrong doctrine or legal wrong doctrine applies.

CAUSTION:

Common Law:

-Actual Cause = Cause-in-fact

• But-for test: result would not have happened when it did but for D’s conduct
• Substantial Factor Test: apply when 2 or more independent actors commit separate acts, each of which is sufficient to bring about the prohibited results. (D’s conduct was cause-in-fact of a prohibited result if the subject conduct was a “substantial factor” in bringing about prohibited result.)

-Proximate Cause = legal causation

• Involves intervening but-for occurrence after the actor’s conduct and prior to prohibited result.
• Whether the intervening act makes D’s conduct not enough to convict. (Intervening act = superseding cause if it gets D off)

MPC: 2.03 Causation

Proximate Cause:

What was the actual result?  Was the actual result “within the purpose of the actor?”

-If YES  Then conduct was a proximate cause.

-If NO  Did the actual result involve the same kind of injury/harm as that designed?

• If NO  Conduct is not a proximate cause.
• If YES  Was the actual result too remote or accidental in its occurrence to have a just bearing on the actors liability?
• If YES  Conduct is not a proximate cause
• If NO  Conduct is a proximate cause.

HOMICIDE:

Common Law / Model Penal Code 210.0-.05
First-Degree Murder:
premeditated and deliberate homicide (2nd look approach (premeditation = long enough to afford a reasonable man to take second look at what he is going to do), Twinkling of the eye approach (premeditation = can happen in one second), etc.) Or w/ Arson, Rape, Burglary, Robbery INTENTIONAL / Murder: (NO DEGREES)
210.1 A person is guilty of criminal homicide if he purposely, knowingly, recklessly, or negligently causes the death of another human being.
210.2 Murder: Criminal homicide committed
(a) purposefully or knowingly
(b)recklesslyunder circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if actor is engaged or accomplice in commission/ attempt of or flight from robbery, rape, arson, burglary, kidnapping, felonious escape
Second-Degree Murder:
malice aforethought (intent to kill, knowledge that practically certain to kill, intent to cause grievous bodily harm, depraved-heart/indifference murder, intent to commit a felony)
OR extreme recklessness (UNINTENTIONAL) (“wanton or reckless disregard for human life”)
Voluntary Manslaughter:
Heat of passion or provocation(1) adequate provocation by victim, (2) sudden (3) heat of passion, (4) causal connection between provocation, passion, killing (5) no time to cool off (6) intentional killing
Traditional categories: extreme assault or battery upon defendant, mutual combat, injury or serious abuse of close relative of defendant, false arrest, sudden discovery of spousal adultery, WORDS ALONE NOT USUALLY ENOUGH(words can only be enough if threatening imminent bodily harm) / 210.3 Manslaughter:
(a)homicide committed recklessly;
(b) homicide which would otherwise be murder under influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. Determination of reasonableness made from viewpoint of person in actor’s situation under circumstances as he believes them to be
Involuntary Manslaughter: (unintentional) grossly negligent behavior resulting in accidental death of another – gross deviation from the standard of care used by an ordinary person – wanton or reckless disregard for human life. OR killing committed during a crime but not felony murder / 210.4 Negligent Homicide: homicide committed negligently.
(Should have known about a substantial a substantial and unjustifiable risk of death)

Depraved heart murder = unintentional killing  STILL A MURDER

COMMON LAW / MPC
First Degree Murder
1. Premeditated and deliberate / Murder – No Degrees
1. Purposefully or knowingly OR recklessly under circumstances manifesting extreme indifference to the value of human life
Second Degree Murder
1. Malice aforethought OR EXTREME recklessness; depraved heart murder
Voluntary Manslaughter (Murder Mitigated)
1. Heat of passion/provocation / Manslaughter
1. Recklessly or murder under extreme mental or emotional distress
Involuntary Manslaughter
1. Criminal negligence, “regular” recklessness / Negligent Homicide
1. Homicide committed negligently

PROVOCATION:

Common Law / Model Penal Code
Words are not enough.
Informational words may be enough.(words that threaten imminent bodily harm may also be enough)
Side Note: Premeditated/ Deliberate factors
(1)Want of provocation on the part of the deceased
(2)The conduct or statements of the defendant before and after the killing (3)Threats and declarations of the defendant before and during the court of the occurrence giving rise to the death of the deceased (4)Ill will or previous difficulty between the parties(5)The dealing of lethal blows after the deceased has been felled or rendered helpless (6)Evidence that the killing was done in a brutal manner State v. Forrest(shooting terminally ill father in head was premeditated) Midgett v. State (father intended continued abuse of son, not death) /

• Words alone are enough for a sufficient provocation to mitigate murder to manslaughter
• The victim does not have to be the provoker  innocent bystander can be killed and D can still use provocation defense
• Okay if the defendant is genuinely mistaken as to what she said
• There does not have to be sudden provocation – could be a buildup of events which leads a person to commit the act
• MPC 210.3(1)(b)  mitigates murder bc of extreme emotional or mental disturbance

FELONY-MURDER RULE:

primary purpose of felony-murder rule is to deter criminals from committing accidental or negligent killings during the commission of felonies. NEED CLASS NOTES ON THIS MATERIAL!!!!!!

COMMON LAW MPC

Accidental homicide is murder if it occurs during commission or attempted commission of any felony; highly jurisdiction-specific
Statutory: (first degree felony murder) legislature decides which offenses will be considered for one to be guilty of murder if it happens in the commission of the felony
Common Law: (Second degree felony murder rule) – judge created, the prosecutor does not have to show mens rea (strict liability)
-If you commit a felony you have notice that you would be on the hook for murder / NO FELONY MURDER RULE
210.3(b) Murder - Recklessness and indifference are presumed if actor is engaged or accomplice in commission/attempt of or flight from:
Robbery
Rape
Arson
Burglary
Kidnapping
Felonious escape
Capital Punishment – ¾ of states have the death penalty

1. cruel and unusual
2. unnecessary infliction of pain and suffering
3. evolving standards of decency
4. legislative trends
5. morality arguments against death
6. one SCOTUS case declare statute unconstitutional
7. many states revised death penalty statutes to reflect MPC approach in § 210.6
8. Jury cannot impose death penalty w/o certain aggravating factors
9. Jury cannot impose death penalty if there are certain mitigators

Inherently dangerous test: felony must be inherently dangerous; often must be impossible to commit without creating substantial risk of death People v. Howard (evading police not inherently dangerous)
Merger rule: felony must be independent from the act that caused the murder; must have independent purpose
Assault with a deadly weapon leads to death
Look to the intent of the felony
Causation: homicide must pass but-for test; without felony, would not have occurred
Killing must be during felony or during immediate flight from the felony.
Foreseeability: death must be foreseeable. Death must be in the furtherance of the felony.
Victim must not be a co-felon: most states
State v. Sophophone (police were doing innocent act/co-felon not a part of felony murder)

RAPE:

 GENERAL INTENT CRIME (all you need is some sort of moral blameworthiness with regard to whether the intercourse was against the will.)

Actus Reus:

-Intercourse

-Force

• Physical (including threats)
• Non-physical (fraud in the factum)

-Non-Consent

• Resistance requirement
• Post-penetration withdrawal of consent (less than rape)

-Against the will

Mens Rea: General Intent Crime (reasonable mistake of fact IS a defense)

Rape Shield Laws:

-Deny D opportunity to examine the P’s prior sexual conduct or reputation for sexual conduct.

• Policy Reasons:
• Prevent harassment/humiliation
• This type of evidence has no bearing on consent for the time in question
• Exclusion keeps jury focused on issues relevant to the case at hand
• Can’t trust juries to actually exclude the evidence of victim’s sexuality, etc.
• Promotes willingness to report
• Implicitly violations D’s 6th Amendment rights but usually found constitutional

- Many states still have marriage immunity:

COMMON LAW MPC

Sexual intercourse by a man with a woman not his wife is rape if committed either (1) forcibly or threat of force, (2) by means of deception, (3) while the woman is asleep or unconscious, or (4) under circumstances in which the female is not competent to give consent
Mens rea: purpose, knowing, reckless
Actus Reus: 1. Intercourse; 2. Force; 3.Non-Consent/ Against the will/Compulsion
Past instances of threat do not apply State v. Alston
Acts reasonably calculated to induce fear=Force State v. Rusk
Forcible compulsion includes moral, psychological, or intellectual force used to compel victim to have sex; whether evidence is sufficient to demonstrate forcible compulsion is determination based on totality of the circumstances Commonwealth v. Berkowitz / 213.1 (1) Rape – a man who has sexual intercourse with a woman is guilty of rape if he (purposely, knowingly, or recklessly):
(a) compels the woman to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone
(b) substantially impaired her power to appraise or control her conduct by giving her drugs/intoxicants
(c) the female is unconscious
(d) the female is less than 10 yrs. old
Mistake: just looking for blameworthiness, if negligent then no mens rea
Not mentioned
SIDENOTE:
Rape Law Reform
Push to remove force requirement (Michigan and Illinois)
Making rape and sexual assault statute gender neutral (including statutory rape)
Rape shield laws (protects victims during court hearings, eliminating sexual history from testimony when it is deemed irrelevant)

• Illinois and Penn have strong rape shield laws
• Prior sexual history with someone not the D is inadmissible
• In Michigan
• Prior sexual history with someone not the D is inadmissible unless it is to show the origin of seaman, STDs, or pregnancy
• Marital immunity
• Idea is that there is a contractual sexual consent
• In effect until 1980 in 40 states
• Still limited marital immunity in states today
• MPC has limited marital immunity

Resistance Requirement: requires proof that: 1. the female did not consent AND 2. that the sexual act was by force or against her will(use of or threat to use force likely to cause serious bodily harm is sufficient; nonphysical threat does not suffice)
Maj rule: “reasonable” resistance-physical indication of non consent
Mistake: man is not guilty if he entertained genuine and reasonable belief that female consented (eroding as majority rule)
Withdrawn Consent: no rape if consent withdrawn after penetration but may be guilty of another offense (majority rule) People v. John Z. (minority rule of withdrawal after consent is rape)
Fraud: fraud in the factum: persuading someone it’s not actually intercourse, vitiates consent (doctor switching penis for medical instrument)
Fraud in the inducement: persuading someone to engage under false pretenses, does not vitiate consent – NOT RAPE Boro v. Superior Court (“anonymous” immune person, have sex to get cured)
Impersonation of a spouse: some courts fraud in factum(Majority), others fraud in inducement (Minority)

Common Law Majority Rule: reasonable belief that victim voluntarily consented to intercourse negates the mens rea.