Offenses Against the Person & Sex Offenses Flashcards
5 offenses against the person
- A. Battery
- B. Assault
- C. Homicide
- D. Kidnapping
- E. False Imprisonment
battery
define, mental state, crime category, availability of consent
• Definition: unlawful application of force to the person of another (or something connected to the person) resulting in either bodily injury or an offensive touching.
• Battery is a general intent crime; it is enough that the defendant caused the application of force with ordinary recklessness (i.e., the defendant is substantially certain harmful or offensive contact will occur).
– **i.e. negligence is not sufficient here
– Common law battery is a MISDEMEANOR
• It is sufficient that defendant put into motion actions causing harm.
– Example: A pushes B into C. A is guilty of battery.
• A victim may consent (assuming he or she has capacity) to a simple battery, but not to serious batteries or homicide.
assault
2 types, mental states, examples; relationship to battery
• There are two types of assault at common law:
(a) an attempt to commit a battery (this is a specific intent crime) and
(b) the intentional creation (by more than mere words) of a reasonable apprehension in the victim’s mind of imminent bodily harm (this is a general intent crime).
– Example: A points a loaded gun at B as a practical joke. B reasonably believes that A intends to shoot him. Is A guilty of assault? Yes. A is not guilty of assault as an attempted battery because A did not have the specific intent to commit battery (note: battery is not a specific intent crime but “attempted” battery is a specific intent crime because all “attempts” are specific intent crimes), but A is guilty of assault as a threat (type b. above) because that is a general intent crime.
– Example: Same facts as the previous question, except that the gun discharges injuring B. Is A guilty of a crime? Yes. A is guilty of battery, a general intent crime (because it is reckless to point a loaded gun at someone). A is also guilty of assault (unless it merges with battery).
- key note: if there has been an actual touching of the person, it becomes a battery, and assault MERGES
- Common law assault is a MISDEMEANOR
- Under modern law, the term “assault” is often used for both assaults and batteries.
5 types of homicide
- Murder
- Voluntary Manslaughter
- Involuntary Manslaughter
- Degrees of Murder
- Felony Murder
murder
define; four ways to prove malice aforethought; timing; proximate cause
• Definition (common law): The unlawful killing of a human being with MALICE AFORETHOUGHT
There are four distinct ways to prove malice aforethought:
(1) intent to kill (includes “mercy” killings)
»> in some states, if the defendant intentionally uses a deadly weapon on the victim, the jury is permitted to infer “intent to kill”
(2) intent to inflict great bodily injury that could easily lead to death (e.g., shoot in the shoulder, strike in head with baseball bat or cement block)
(3) depraved heart murder: reckless indifference or extreme recklessness (e.g., shooting in a crowded room or shooting in the direction of people), and
(4) felony murder: intent to commit a COMMON LAW felony (i.e. the BARRK felonies - burglary, arson, rape, robbery, and kidnapping)
• timing: defendant’s act must cause the victim’s death within one year and a day at common law.
»> the hastening of one’s death may be murder (e.g., A intentionally shoots and kills B, who, because of a terminal illness, had only 10 minutes to live. A is guilty of murder).
• Defendant is liable for the natural and probable consequences of his acts, even if not anticipated; defendant is liable even if not aware of victim’s preexisting condition (A shoots B in the leg. Although an average person would survive such wound, B has hemophilia and dies. A is guilty of murder).
voluntary manslaughter (define; elements of adequate provocation; 3 likely fact patterns)
• Definition: Intentional or reckless killing as a result of adequate provocation (i.e., common law murder plus provocation)
Adequate provocation exists when there is:
»> sudden and intense passion for an average person (RPP standard)
»> provocation in fact (subjective)
»> no “cooling off” time for an average person (RPP standard), AND
»> defendant, in fact, did not “cool off” (subjective)
[ESSENTIALLY - provocation and cooling off must be both objectively and subjectively satisfied]
• If the defendant killed another intentionally or recklessly and any of these four elements is absent, the defendant is guilty of murder. If all four of the elements of voluntary manslaughter are present, the defendant is not innocent, but rather is guilty of voluntary manslaughter (as opposed to murder).
• For UBE purposes, voluntary manslaughter is probably limited to the following fact patterns:
»> (1) defendant finds his or her spouse in bed with another person,
»> (2) defendant is involved in mutual combat, or
»> (3) defendant responds to an assault/battery with too much force (i.e., more force than necessary for self-defense)
involuntary manslaughter
ordinary recklessness; unlawful act
• Two types:
– ordinary recklessness (majority & MPC): a person may be convicted of involuntary manslaughter if he acts recklessly by consciously disregarding a high risk of death or serious bodily injury
»> criminal (gross) negligence (minority & Common Law): a person may be convicted of involuntary manslaughter if a reasonable person would have been aware that her conduct created an unreasonable and high risk of death or serious bodily injury
»> note: you can’t be convicted of attempted (specific intent) involuntary manslaughter (criminal negligence) – that is a logical impossibility
– unlawful act manslaughter (i.e., misdemeanor-manslaughter): a person may be convicted of involuntary manslaughter for a killing that occurs during the course of a serious misdemeanor or a felony not included on the list of felonies for felony-murder
»> a majority of states do not have unlawful-act manslaughter statutes
modern rule for degrees of murder
• Under modern law in most states, all murders are PRESUMED to be second degree murder, UNLESS the prosecution proves one of the following (in which case the accused is guilty of first degree murder):
> > > deliberate and premeditated killing: brief reflection on idea of killing (e.g., lying in wait or ambush)
> > > first degree felony-murder: statutorily defined as such (generally BAARK felonies - burglary, arson, robbery, rape, kidnapping)
> > > killings performed in certain ways, as enumerated by statute (e.g., by bomb, poison, torture)
(the common law did not divide murder into degrees. The M.P.C. also does not divide murder into degrees.)
felony murder (definition (flesh out fully!); 3 general rules; what gets us to 1st degree felony murder?)
• Definition: a killing committed during the course of a common law felony (i.e., burglary, arson, robbery, rape, mayhem, or kidnapping) or during an ATTEMPT to commit a common law felony, even if the killing is accidental.
»> The criminal intent (MALICE) is implied from intent to commit the underlying felony.
»> **need not be convicted of the underlying felony
• The underlying felony must be INDEPENDENT of the killing (i.e., there is no felony-murder for battery, assault, child abuse, or manslaughter because these crimes are often precursors to murder).
• The death must be the FORESEEABLE result of the commission of a felony.
»> most courts are willing to find most deaths occurring during the commission of a felony to be foreseeable
- The death must have been caused during the commission or attempted commission of the felony or during the IMMEDIATE flight from the felony (i.e., before the felon reaches a place of safety, such as his home or a hide-out).
- BARRK gets us to first degree felony murder – Burglary, Arson, Rape, Robbery, and Kidnapping
felony murder ancillary rules - liability for deaths in the commission of a crime (2 theories)
liability for deaths in the commission of a crime:
• majority rule (agency theory): a felon is responsible for his own acts and those of an accomplice done in furtherance of the felony (they are agents of one another)
»> death of a co-felon: generally, the defendant is NOT liable for the death of a co-felon caused by resistance from a victim or police (because the killing by the police or victim is justifiable)
»»> however, the defendant IS probably liable for felony-murder if HE kills (accidentally or intentionally) a co-felon during the commission of the felony.
»> death of police/victim: the defendant is NOT liable if the police or victim accidentally kill each other or a bystander.
• minority rule (proximate cause theory): defendant and his accomplices are LIABLE for deaths of innocent victims/police at the hands of a 3p
kidnapping
define; traditional view; majority/MPC view; example
• Definition: The confinement of a person involving either some MOVEMENT of the victim against the victim’s will OR RESTRAINT of the victim in a secret place.
»> A “secret” location is one where the victim is unlikely to be found or a location outside of public view.
»> If the victim is competent to consent and does so, this may negate an element of the crime. Minors and mental incompetents may not consent.
– Traditional view: Any movement of victim against her will is sufficient.
– Majority & M.P.C. view: Substantial movement is required; minor movement (e.g., room to room) incidental to another crime is insufficient.
»> BUT minor movement, in the absence of another crime, is sufficient (i.e. substantial movement only needed if the kidnapping is incidental to another crime)
– Example: A asks his girlfriend, B, age 25, to join him for a weekend getaway at a remote lodge. A asks B to keep the trip secret. B agrees and drives to the lodge on Friday evening. Early Saturday morning, A, from a phone in the lobby, calls B’s parents and demands a ransom for her return. B was sleeping at the time of the call and was never aware of A’s ransom plan. Is A guilty of kidnapping?
»> No, because A neither moved B (she came to the lodge of her own free will) nor restrained B in a secret place (there is no evidence of restraint and the lodge is not a “secret” place). But A would be guilty of attempted extortion (or, in some states, extortion).
false imprisonment (define; 4 key points)
• Definition: the unlawful confinement of a person without his or her consent
– remember, it must substantially interfere with the person’s liberty
– Nearly identical to the tort of the same name.
– It is a general intent crime.
– False imprisonment is a lesser included offense of kidnapping.
three sex offenses
- A. Rape
- B. Statutory Rape
- C. Bigamy
rape (sexual assault)
definition; rules on consent
• Definition (common law): Unlawful carnal knowledge of a woman by a man who is not her husband without her effective consent (“not her husband” requirement has been dropped by most states by statute).
– Modern statutes have renamed “rape” as “sexual assault” or “sexual battery” and have made the crime gender neutral. - results in “unlawful carnal knowledge of an individual by another without their consent”
• At common law, “non-consent” was an element of the crime for the prosecutor to prove. Under some modern statutes, consent is an affirmative defense for the defendant to prove. For that defense to prevail, the defendant must have had both an honest and reasonable belief that the victim consented.
»> **so if “unconsenting” is part of the crime, the burden is on the prosecution – but if the consent issue is not part of the crime, it becomes a potential affirmative defense for the defendant to prove
• Consent is not valid when obtained:
»> by force
»> by threats of force
»> from someone without capacity (e.g., underage, drunk, asleep, insane)
»> by fraud as to the nature of the “act” (e.g., a doctor fraudulently telling his patient that the penetration was caused by a medical instrument); other types of fraud do not invalidate consent (e.g., a man fraudulently telling a woman that he will marry her if she agrees to sex)
statutory rape (define; example)
- Definition (common law): sex acts with a person under the age of consent; this is a strict liability crime, so mistake as to the victim’s age is no defense
- Because statutory rape laws are designed to protect minors, the minor cannot be found guilty of conspiracy to commit statutory rape, solicitation of statutory rape, or as an accomplice to statutory rape.
- Although statutory rape is a strict liability crime, “attempted statutory rape” is a specific intent crime.
– Problem: D and V plan to meet at V’s apartment to have sex. V is 17, but D reasonably believes she is 19. The age of consent is 18.
• If D and V engage in sex, is D guilty of statutory rape?
»> Yes, regardless of D’s reasonable mistake.
• If D is arrested immediately before they engage in sex, is he guilty of attempted statutory rape?
»> No. Because D thought V was 19, he did not have the specific intent to commit statutory rape.
• Could D be convicted of conspiracy to commit statutory rape?
»> No—for two reasons:
» (1) Because statutory rape laws are designed to protect minors, V cannot be a conspirator; thus, under the common law, there is—at most—one guilty mind.
» (2) Because conspiracy is a specific intent crime, D cannot be convicted of that crime since he mistakenly thought V was 19 (i.e., a mistake of fact).
• Could D be convicted of conspiracy if he knew V was 17 but mistakenly thought the age of consent was 16?
»> Yes, in most jurisdictions ignorance of the law (or mistake of law) is not a defense to conspiracy.
