Rape + Inchoate offenses Flashcards
State the common law definition of rape.
The common law definition of rape is carnal knowledge (sexual intercourse) by a man, with a woman, forcibly and against her will.
Identify the different aspects of the actus reus of rape.
The actus reus of rape requires sexual intercourse, force, and that it be without consent.
Explain how rape could be understood as a general intent or specific intent crime.
Rape understood as a general intent crime does not require that the defendant have knowledge of the victim’s non-consent. The defendant only needs to know that he is having sexual intercourse, and is using force.
As a specific intent crime, rape would require that the defendant be aware of the victim’s lack of consent. As currently understood, the use of force requirement is supposed to be an indication of the defendant’s blameworthy state of mind as to consent without actually requiring that the defendant know that it is without consent.
Explain how “resistance” affects the examination of actus reus and mens rea in rape.
Resistance can be part of the measurement of force. Some tests have articulated the amount of force required as that amount needed to overcome the victim’s resistance. The victim’s resistance is also used as another signal to the defendant. If the victim’s resistance is strenuous, it is much more difficult for the defendant to assert that he thought the victim was actually consenting.
Define and explain the use of mistake of fact as a defense to rape.
A defendant may assert a mistake of face as a defense to rape. The defendant asserts that he honestly but mistakenly believed that the victim was actually consenting. It follows the same rules as other mistake of fact assertions in general intent cases; it requires that the mistake must be both honest and reasonable to be successful.
Articulate why rape is at the crossroads of criminal law and social mores.
Rape is at the crossroads of criminal law and social mores because it involves the most intimate of social interactions and the social construction of gender and communication. Because the rape laws from coast to coast are significantly different, despite almost universal agreement about the seriousness of rape as a crime, it remains a significant opportunity for public policy inquiry, debate and reform.
Define inchoate offenses and explain why we punish them.
Inchoate offenses are incomplete offenses. They are in the range of actions before a complete offense and exist on a continuum – from solicitation to conspiracy to attempt to the target offense.
Even though the actor may not have achieved their goal, we punish inchoate offenses because the threat or risk of the actor achieving their criminal purpose still causes a harm in society. In addition, punishing the inchoate crimes should prevent the actor from achieving their criminal purpose.
Identify the mens rea for attempts and the range of tests for the actus reus.
Attempt is an inchoate crime. It is of two types – complete and incomplete attempt. Complete attempts are those where the defendant has done everything in their power to complete the target offense but has failed (like bad aim). An incomplete attempt is one where the defendant has passed from preparation to perpetration, but has not yet completed everything necessary to achieve their purpose. For instance, if they are driving on their way to rob the bank, or have begun the computer program to enact the wire fraud, or have loaded the weapon when they intend to shoot the person standing in front of them.
There are generally 6 possible tests for the actual reus of attempts: 1) last act; probable desistance test (aka point of no return); dangerous proximity test; equivocality test (do defendant’s acts manifest an intent); indispensable element test and substantial step test. With respect to mens rea, all attempts are specific intent offenses. Actors must have intended to do the acts they are engaged in, and also intend to commit the target offense.
Explain why generally one cannot be culpable for attempted 2nd degree murder
Generally, one cannot be culpable for attempted second degree murder because 2nd degree murder encompasses primarily unintentional killings. Since attempt involves an intent to commit the target offense, it is not possible to have an attempted unintended killing. Even for “intent to kill” 2nd degree murder, attempted 2nd degree murder is less likely because it would indicate a plan, and thus lean towards 1st degree murder. That said, there are many states which have the crime of attempted second degree murder, based on their particular constructions of 1st and 2nd degree murder.
Explain why the MPC test and defenses for attempt law differ from those of the common law.
The MPC tests and defenses for attempt differ from the common law tests and defenses for attempts because the MPC focuses on what is in the defendant’s head and seeks only enough of a physical act to confirm that the defendant intends to commit the target offense. In contrast, the common law looks for physically acts from which one can objectively discern the actor’s intent.
Explain how legal impossibility can be framed as a factual impossibility.
There are three types of impossibility defense: factual, legal and hybrid.
In general, factual impossibility is not a defense, because the defendant has already acted to complete the offense and it is only fortuity that he did not succeed.
Legal impossibility is generally a defense because there is no law broken ( ie – throwing a steak in the garbage – wrong but not against the law)
In hybrid impossibility, the defendant fails to meet the legal requirements for the offense charged because of a mistake about a legally relevant fact (such as when the defendant is charged with attempting to have sexual intercourse with a girl under the age of 14 and in fact the girl is 16. In this case, the defendant is acquitted because there was no way they could have completed the offense, even though they intended to)
Legal impossibility can be characterized as factual impossibility because ultimately it is a mistake about a fact, even though it is a fact about something that is legally relevant.
Define conspiracy and explain why we punish it.
Conspiracy is an agreement between two or more persons to commit an unlawful act or a lawful act by unlawful means. We punish conspiracy because we believe that the dangers of group criminality are greater than those of individual criminality. In groups, peoples’ criminal ambitions can be greater and the existence of the group itself emboldens all members.
Identify the broad prosecutorial advantages of conspiracy law and why they matter.
Conspiracy law is sometimes called the darling of the prosecutor’s nursery because of the range of advantages.
The prosecutor may charge conspiracy in any state where an act in furtherance of the conspiracy has occurred. The conspirators may be tried jointly, and evidence against any one of them may be used against all of them.
Prosecutors may strategically choose where to charge in order to have the most serious penalty or the most advantageous laws.
Identify when mere knowledge of a conspiracy can be enough and why this might be problematic.
Courts have said that mere knowledge of a conspiracy coupled with deriving an interest or advantage from the conspiracy may be sufficient to convict. This is problematic because we have already significantly reduced the actus reus required in inchoate crimes. When we further reduce the degree of mens rea required, we risk punishing the innocent, and violating the principles of punishment.
Explain Wharton’s Rule and when it applies.
Wharton’s Rule says that one may not be charged with conspiracy when the very nature of the act requires two people to achieve it. For instance, bigamy, adultery, and dueling, all require two willing parties. The dangers of group criminality as opposed to individual criminality do not exist in such cases. Therefore, conspiracy to commit these offenses cannot exist for the two essential actors.
