Page 22 Flashcards
What is considered sexual intercourse for rape?
Penetration of the vulva of the female by the penis of the male
In order for rape to be charged, must the unlawful force be intercourse?
Can be deviant forced sexual behavior
What must the penetration be in order for rape to exist?
The slightest penetration is enough, and sexual emission is not required
Modernly, are anal sex and oral sex also considered to be rape?
Yes
What has happened to the “by a man on a woman” stipulation of rape at modern law?
Courts now say rape is gender-neutral, so anyone can commit it on anyone
How does the MPC treat the by a “man on a woman” element of rape?
Maintains that the victim can only be female, and the perpetrator can only be male
Does the MPC follow the common law in saying that your spouse can’t be charged with rape?
Yes
Why was it that at common-law a husband couldn’t rape his wife?
Because marriage was deemed to create implied consent to intercourse
At common-law if a husband forced his wife to have sex with another man, is that rape?
Yes
If there is an issue about consent in a rape case, who will make the determination of mistake of consent?
The jury
Who must prove the lack of consent in a rape case?
Prosecution
When is consent not valid in a rape case?
If it is gotten by threat of immediate serious bodily injury or fraud about the nature of the act
What are the circumstances in which a woman cannot give her consent to sex?
When she is unconscious, under age, deceived, or mentally impaired
What does it mean to be mentally impaired so that you cannot give consent for sex?
You either have a mental defect, are insane, or intoxicated
If a woman is incapable of consenting to sex, but you have intercourse anyway, what have you done?
Committed a rape
In a rape case the defendant must be aware of what?
That the victim was not consenting
If the victim doesn’t put up a reasonable amount of resistance, or show unwillingness to have sex, has a rape still occurred?
Yes, because all that matters is that she didn’t consent
What is essential for consent to sex?
It must be actual and voluntary by a fully informed victim with capacity to consent
Can consent for sex be implied?
Yes, it can be implied by the circumstances and actions of the victim
If you give someone a roofie and then they consent to sex, can you be charged with rape?
Yes, because roofying someone makes their consent not voluntary and they don’t have capacity
What does it mean to have an honest and reasonable mistake about consent to sex?
Defendant acted in good faith and reasonably and honestly believed the victim consented
If you have an honest and reasonable mistake about consent for sex, are you guilty of rape?
Not if a reasonable person in your situation would’ve also believed you had consent
Can rape be predicated on the refusal to discontinue sex after the victim withdraws consent?
Yes, although defendant is usually given a reasonable time to discontinue (much less time than is necessary to ejaculate)
What are the two types of fraudulent rape?
- fraud in the factum
- fraud in the inducement
What is fraud in the factum rape?
When someone doesn’t knowingly consent to sex
Is fraud in the inducement considered rape?
No
Is fraud in the factum considered rape?
Yes
What is fraud in the inducement rape?
The victim knowingly consented to sex, but from misrepresentation of the benefit she would enjoy
What are some examples of fraud in the inducement relating to rape?
Telling someone to sleep with you and then you would do something for them, even though you had no intention of doing it (because here the victim know she is consenting to sex)
What is statutory rape?
Non-forcible sexual intercourse, with a minor, regardless of consent
What is the usual age for statutory rape?
16
If parties are validly married, can a husband be convicted of statutory rape?
No
What kind of crime is statutory rape?
SL
Because rape is a strict liability crime what does that mean for mistake?
It doesn’t matter, the defendant is still guilty
What is the minority view for mistake for statutory rape?
A defendant that reasonably believes the girl was old enough, although it was a mistake, isn’t liable
At common-law, males under what age are thought rebuttably incapable of rape?
14
What is attempted rape?
Attempting to have sexual intercourse with the person, knowing they do not consent
What type of intent crime is attempted rape?
Specific intent
What is the common law definition of mayhem?
Injury that permanently renders the victim unable to fight and is accomplished by either dismemberment or disablement of a body part useful for fighting
What is the modern definition of mayhem?
Unlawfully disfiguring, dismembering, or disabling
Modernly an injury for mayhem doesn’t have to stop you from what?
Fighting
Modernly, the point of a Mayham crime is to preserve what?
The natural completeness and normal appearance of the human face and body
What are the elements of mayhem?
- intent to dismember, disfigure, or disable
- injury
Why is it unclear whether mayhem is a specific or general intent crime?
Because there’s no majority position on whether criminal negligence will suffice
What are the defenses to Mayhem?
Self defense
At common law what kind of intent crime is assault?
Specific intent
Does the merger doctrine apply to assault?
Yes, you can’t be found guilty of both battery and assault, because they merge if both of occurred
What are the two ways you can commit assault?
Either an attempted battery or an intentional frightening
What is an intentional frightening for assault?
Mental apprehension in the mind of the victim
How is assault a specific intent crime?
Prosecution must prove the defendant intentionally acted with the specific purpose of causing a battery or apprehension of an imminent battery
What is MPC assault?
Assaults cover both battery and assault, and there is no separate crime of battery
What is the type of assault that is assault as an attempted battery?
When the defendant intentionally seeks to batter a victim and almost succeeds
If it is impossible to commit an assault because you don’t have the ability, can you still be guilty of attempt?
Yes
What is an example of a time that you would be guilty of attempted assault even if it was impossible for you to commit it?
If you didn’t know a gun was not loaded and you tried to shoot it
Is it possible to have an assault at criminal law when the victim didn’t know he was in danger?
Yes, like throwing a rock at a sleeping person
Is it a defense to assault if the victim didn’t know it was happening?
No
At modern law what are some examples of injuries that would constitute mayhem?
Poking out your eye, knocking out a tooth, a giant scar
At common-law what are some examples of injuries that would constitute mayhem?
Cutting off the foot, paralyzing the person, removing fingers, etc.
Most jurisdictions have done away with the theft crimes and created what?
One crime in its place, so if the evidence is of any of the theft crimes, the defendant is guilty of that
Does a lawful possessor have to be the owner?
No
What is unlawful possession?
Trespassory taking
What is lawful possession?
When defendant received possession with permission of the lawful possessor and without intent to steal
At common-law the person that gets possession of property first has a what?
Superior right of possession to all later possessors, but the lawful owner has superior rights to all other professors
What is an example of larceny?
When an employee takes money from a customer, puts it in the till, and then later removes it from the till
If you put money given by a customer into the till, what does that do to possession?
It gives possession to the employer
If you take money with the intent to gamble it, win more, and then return the same amount, is that larceny?
Yes, because you don’t intend to return the same bills and you subject them to a substantial risk of loss
What must the defendant intend in order to commit a larceny?
To deprive
If a Defendant honestly believes he’s entitled to the property he takes, is he guilty of larceny?
No, because the defendant must intend to deprive
If force is used in the larceny what does that convert the larceny to?
Robbery
Common law says that all larcenies are what?
Felonies
Modernly, the taking of property worth more than $500 is considered what and anything else is considered what?
A felony, and anything else is a misdemeanor
Is larceny considered to be inherently dangerous?
No, so felony murder rule doesn’t apply
What type of intent is larceny?
Specific intent, because the defendant specifically intends to permanently deprive the lawful possessors of property in their possession
Is joy riding larceny?
No, because it doesn’t create a substantial risk of permanent deprivation, and there’s no intent to permanently deprive
What are the elements of larceny?
- trespassory
- taking
- carrying away
- personal property
- of another
- intent to permanently deprive
The trespassory element of larceny includes what?
Constructive possession
What does trespassory mean as an element of larceny?
Defended takes property from the possession of the victim without consent
What is a taking for larceny?
When dominion over property is secured
How can a larceny happen without the defendant actually doing the deed?
Can use an instrument like an innocent third-party
What is an example of committing a larceny by using an innocent third-party?
Having a kid steal from a candy store and bring the candy out to the defendant
