Crimes Against The Person Flashcards
Assault
Two theories of assault at common law:
1) Assault as a threat: general intent crime
-Intentional creation of victim’s reasonable apprehension of imminent bodily harm
-Words alone are usually insufficient
2) Assault as an attempted battery: specific intent crime
-Specific intent crime because it involves attempt
Note: both of the above constitute assault for MBE purposes unless instructed otherwise
Note: has an “aggravated” counterpart, which usually arises when the assault is carried out with the use of a weapon
Battery
yAn unlawful application of force to the person of another resulting in bodily injury or offensive touching
-I.e. a completed assault
-General intent crime
Note: has an “aggravated” counterpart, which usually arises when the battery is carried out with the use of a weapon
Rape
Common law: unlawful carnal knowledge of a woman by a man other than her husband, without effective consent
Modern statutes
-Often referred to as “sexual assault”
-The slightest penetration is sufficient to complete the crime
-Marital status insignificant (most states have abolished element of marital status)
-Lack of consent: consent will not be found if:
a) Penetration is accomplished by force or threat of immediate bodily harm,
b) Victim is incapable of consenting due to lack of capacity (e.g. unconsciousness, intoxication, etc.), or
c) Victim is fraudulently caused to believe the act is not intercourse
Note: other fraud or trickery alone does not consitute rape
-E.g. convincing someone you plan on marrying them in order to have intercourse is not rape
False imprisonment
The unlawful confinement of a person without their consent
-Consent cannot be obtained through coercion, threat, or deception
Note: False imprisonment can become kidnapping if the victim is moved and/or concealed
Kidnapping
The unlawful confinement of a person that involves either:
a) Some movement of the victim (aka “asporatation”), or
b) Concealment of the victim in an unkonwn, hidden, or secret location
Murder
The unlawful killing of another human with malice aforethought
Malice aforethought: arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with one of the following mental states:
1) Intent to kill
2) Intent to inflict great bodily injury
3) Depraved/malignant heart: a killing committed with reckless indifference to an unjustifiable risk of human life
4) Felony murder: killing caused during the attempt or commission of an inherently dangerous or statutorily enumerated felony
-Intent required = the intent necessary to commit the underlying felony
-Statutorily enumerated felony = statute dictates that a killing resulting from the crime constitutes felony murder
Murder-Causation
Causation: D’s act must be both the actual and proximate cause of the victim’s death
-Any act by D hastening the victim’s death, even if already inevitable, is considered a cause
First degree murder
Arises if a killing is either:
a) Deliberate and premiditated: D must have killed in a dispassionate manner and must have considered or reflected on his killing, even if only momentarily
-Specific intent crime: voluntary intoxication and mistake of fact are valid defenses
b) Felony murder: killing during an enumerated felony
-Many states list felonies that may serve as the basis for felony murder
Second degree murder
A homicide not arising to first degree murder
Note: if first degree murder is not mentioned as a possibility in MBE answer choices, assume the question involves second degree murder which is oftent the default murder on the MBE
Felony murder
A killing that occurs during the attempt or commission of certain enumerated felonies
-Intent to commit felony murder = the intent necessary to commit the underlying felony
-Common felonies include burglary, arson, rape, robbery, and kidnapping
Felonies allowing for felony murder:
1) Inherently dangerous felonies
2) Statutorily enumerated felonies
i.e. a criminal statute states that a killing occurring during its commission constitutes felony murder
Limitations on liability for felony murder
- D must be guilty of the underlying felony
-Valid defenses to the underlying felony are also defenses to felony murder - The underlying felony itself must be independent of a killing
e.g. involuntary manslaughter cannot be felony murder - Victim’s death must be a foreseeable result (i.e., proximate cause) of the felony
- Victim’s death must be caused before D reaches a place of temporary safety
- D is not liable for the death of a co-felon killed by police or the original victim in majority of states
Voluntary manslaughter
A killing resulting from an adequate provocation (heat of passion killing) or imperfect self-defense
Voluntary manslaughter-adequate provocation
Required elements:
1) Provocation would cause sudden and intense passion in an ordinary person, causing him to lose self-control
2) D was in fact provoked (i.e., D actually lost control)
3) There was insufficient time for an ordinary person to cool off between the provocation and the killing
4) D did not cool off between the provocation and the killing
Note: adequate provocation is not a defense to murder
-But it can be a mitigating factor that reduces a murder charge to voluntary manslaughter
Voluntary manslaughter-imperfect self defense
If D murders while acting in self defense, his criminal liability can be reduced to voluntary manslaughter if either:
a) D initiated the altercation that required self-defense, or
b) D unreasonably believed deadly force was necessary
Note: not recognized in all jurisdictions
Involuntary manslaughter
A killing committed with criminal negligence or during the commission of an unlawful act not constituting felony murder
Note: if MBE questions simply state “manslaughter” without distinguishing betweeny voluntary and involuntary manslaughter, both types must be considered
