Criminal Law Ch. 10

3 Elements of rape

(1) Actus reus--sexual penetration by force or threat of force. (2) Mens rea--intentional sexual penetration. (3) Circumstance--nonconsent by the victim.

Two Kinds of Rape

(1) aggravated rape (2) unarmed acquaintance rape

Victim's credibility depended on three conditions:

(1) her chastity. (2) whether she promptly reported the rape. (3) whether other witnesses corroborated the rape.

The seriousness of sex offenses under the new codes is graded according to several criteria:

(1) penetrations are more serious than contacts. (2) forcible penetrations and contacts are more serious than simple nonconsensual penetrations and contacts. (3) physical injury to the victim aggravates the offense. (4) rapes involving more than one rapist, "gang rapes," are more serious than those involving a single rapist.

3 types of mistakes:

(1) reckless mistakes (2) negligent mistakes (3) no-fault mistakes

6 common law requirements of kidnapping

(1) seizing, (2) carrying away (asportation of), and (3) confining, (4) by force, threat of force, fraud, or deception, (5) another person, (6) with the intent to deprive the other person of his or her liberty.

4 Elements of historical definition of rape

(1) sexual intercourse by force or a threat of severe bodily harm (actus reus). (2) intentional vaginal intercourse (mens rea). (3) intercourse between a man and a woman who wasn't his wife (attendant circumstance). (5) intercourse without the woman's consent (attendant circumstance). The common law required proof beyond a reasonable doubt of all FOUR elements.

2 kinds of fear required to satisfy threat of force requirement:

(1) subjective fear--the victim honestly feared imminent and serious bodily harm. (2) objective fear--the fear was reasonable under the circumstances. Brandishing a weapon, verbal threats--threats to kill, seriously injure, or kidnap--satisfies the requirement. The threat does not have to include showing weapons or using specifically threatening words.

Courts consider the following when deciding whether the victim's fear was reasonable:

(1) the respective ages of the perpetrator and the victim. (2) the physical sizes of the perpetrator and the victim. (3) the mental condition of the perpetrator and the victim. (4) the physical setting of the assault. (5) whether the perpetrator had a position of authority, domination, or custodial control over the victim.

Reasons why the criminal justice system fails against unarmed acquaintance rapes:

(1) victims aren't likely to report unarmed acquaintance rapists, or they don't recognize them as rapes. (2) when victims do report them, the police are less likely to believe the victims than they are the victims of aggravated rape. (3) prosecutors are less likely to charge unarmed acquaintance rapists. (4) juries are less likely to convict unarmed acquaintance rapists. (5) unarmed acquaintance rapists are likely to escape punishment if their victims don't follow the rules of middle-class morality.

Victim resistance's impact on acquaintance rape

(1) victims usually resist unwanted advances because they're not afraid men they know will hurt them. (2) victims are right: resistance usually succeeds.

A person is guilt of aggravated assault is he:

(a) attempts to cause seriously bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.

Most common aggravating circumstances include kidnapping for the purpose of:

-sexual invasions -obtaining a hostage -obtaining a ransom -robbing the victim -murdering the victim -blackmailing -terrorizing the victim -achieving political aims The penalty for aggravated kidnapping is usually life imprisonment and, until recently, occasionally even death.

Commonwealth v. Berkowitz (1994)

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State v. Hoying (2005)

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Recklessness requirement

A few courts have adopted the recklessness requirement, requiring that the defendant has to be aware that there's a risk the victim has not consented to sexual intercourse.

Utmost resistance standard

According to the standard, victims had to show they resisted with all the physical power they possessed.

threat-of-force requirement

Actual force is not required to satisfy this requirement, all that is needed is threat of force.

Aggravated rape circumstances

Aggravated raped involves at least one of the following circumstances: (1) the victim suffers serious bodily injury. (2) a stranger commits the rape. (3) the rape occurs in connection with another crime. (4) the rapist is armed. (5) the rapist has accomplices. (6) the victim is a minor and the rapist is several years older.

Stalking Actus Reus

All 50 states require that the act happen more than once. Some codes use the word "repeatedly" or "course of conduct." All states require some variation of the model code's "maintaining a visual or physical proximity." These acts include following, pursuing, spying, and/or harassing. About half the states require some kind of threat, including the model code's "verbal or written threats or threats implied by conduct," "threat," "terroristic threat," or "credible threat." Other statutes list very specific acts, including one or more of the following: interfering with the victim; approaching or confronting the victim; appearing at the victim's job or home; placing objects on the victim's property; causing damage to the victim's pet; calling the victim on the phone, or sending letters or email to the victim.

Marital rape exception

An abolished common law rule that said husbands could not rape their wives.

Corroboration rule

An abolished rule that required the prosecution to back up rape victims' testimony with that of other witnesses (rarely possible to obtain).

Common law sodomy

Anal intercourse between two males.

Assault

Assault is either an attempted or a threatened battery, depending on how the statute defines it.

Attempted battery assault

Attempted battery assault consists of having the specific intent to commit a battery ad taking substantial steps toward carrying it out without actually completing the attempt. A victim's awareness does not matter.

Bodily Injury Crimes

Battery Assault Stalking

Battery

Battery is unwanted and unjustified offensive touching. Body contact is central to the crime of battery. The actus reus of battery is unlawful touching, but not every offensive physical contact is unlawful. Unlawful touching includes a broad spectrum of acts but usually means any unjustified touching without consent. Battery mens rea is an intentionally inflicted injury, reckless, and negligent contacts. Battery requires some injury. In most states, battery that cause minor physical injury or emotional injury are misdemeanors. Batteries that cause serious bodily injury are felonies.

MPC grades bodily harm offenses as follows:

Bodily injury is a felony when: (a) such injury is inflicted purposely or knowingly with a deadly weapon; or (b) serious bodily injury is inflicted purposely, or knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life. (c) except as provided in paragraph (2), bodily injury is a misdemeanor, unless it was caused in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.

California

California enacted statutes that made stalking unlawful in 1990 after actress Rebecca Schaeffer was murdered by a stalker who stalked her for 2 years.

Conditional threats

Conditional threats are not enough either because they're not immediate. In a few jurisdictions, a present ability to carry out the threat has to exist.

Cyberstalking

Cyberstalking is defined as "the use of the internet, email or other electronic communications devices to stalk another person through threatening behavior." In 1999, the L.A. and Manhatten District Attorneys reported that 20% of its stalking victims were cyberstalked. Cyberstalking reaches victims in their homes where they feel safest.

Fraud in fact

Deception can substitute force. Fraud in fact consists of tricking the victim into believing the act she consented to was not sexual intercourse.

False imprisonment

Fale imprisonment is a specific intent crime. False imprisonment is a lesser form of personal restraint than kidnapping, but the heart of the crime remains depriving others of their personal liberty. It's a lesser offense because there's no asportation requirement; the deprivation of liberty is brief; and the detention is less stressful. "False imprisonment" is defined as compelling a person "to remain where he does not wish to remain." Most forcible detentions or confinements satisfy the actus reus of false imprisonment. The motive for the detention does not matter.

Commonwealth v. Fischer (1998)

Fischer was found guilty of involuntary deviate sexual intercourse and aggravated indecent assault. The Court ruled it did not have the authority to replace the state's strict liability rule with a negligence rule on its own.

Fraud in the inducement

Fraud in the inducement is NOT rape.

Jones v. State (1992)

Indiana Supreme Court overturned a conviction of a man who may or may not have raped a woman on the basis that the victim did nothing to express more resistance other than saying no. Although the Court did not use the word "resistance," it was implied.

The other way around:

Initial rapist violence provokes victim resistance.

Personal Restraint Crimes

Kidnapping

Kidnapping

Kidnapping is an ancient result crime that originally involved holding the king's relatives for ransom. Kidnapping is taking and carrying away another person with the intent to deprive that person of personal liberty.

Kidnapping Mens Rea

Kidnapping mens rea is stated usually as the specific intent to confine, significantly restrain, or hold victims in secret. The heart of the kidnapping mental attitude remains to "isolate the victim from the prospect of release or friendly intervention."

Reasonable resistance rule

Most courts softened the utmost resistance definition to the reasonable resistance rule, the rule followed in almost all states today. According to the rule, the amount of resistance depends on the totality of circumstances in each case.

Rape shield statutes

Most states passed the rape shield statutes, which banned the prosecution from introducing evidence of victims' past sexual conduct.

Casico v. State (1947)

Nebraska Supreme Court described resistance as persistent and resistant as the victim could be.

Exceptions to the Force and Resistance Rule

No resistance is required if victims were incapacitated at the time of the assault by intoxication, mental deficiency, or insanity.

Jones v. State (1984)

Oklahoma Court of Appeals affirmed the conviction of a man who raped a woman because there was more than enough ample evidence to establish that the prosecutrix submitted due to the threats of great bodily harm.

Rape actus reus

Rape actus reus is sexual intercourse by force. For most of history, rape was governed by the force and resistance rule--"force" was not satisfied if the victim consented to sexual intercourse; victims had to prove they did not consent by proving they resisted the force of the accused rapist. The law presumes consent.

General-intent crime

Rape mens rea. "General intent" is that defendants intended to commit the act defined in the crime--in the case of rape, the act is forcible sexual penetration.

Intrinsic force

Requires only the amount of physical effort necessary to accomplish penetration.

Extrinsic force

Requires some act of force in addition to the muscular movements needed to accomplish penetration. The amount of force required varies according to the circumstances of particular cases.

Stalking

Stalking involves intentionally scaring another person by following, tormenting, or harassing him or her.

Stalking Mens Rea

Stalking is a result crime. All statutes require a specific intent to commit the acts discussed ni the actus reus section.They also require some mental attitude causing the bad result, but the exact mental attitude varies considerably among the states. Slightly more than half the states require some level of subjective fault--purpose, knowledge, or recklessness. Most of these states require that the actor's purpose was to cause the bad result. A few of these subject fault states require either that stalkers know their acts will cause the bad result or that they act recklessly; they know their acts create a substantial and unjustifiable risk of causing the bad result. About 1/3 of states require only objective fault--negligence. The requirement is objective reasonableness; actors do not know their acts are creating substantial and unjustifiable risk of causing the bad result, but they should know. The remaining states require no mental attitude; they provide for strict liability. The only requirement is a voluntary act.

Stalking Crimes

Stalking is an ancient practice but only a modern crime. Every state and the U.S. government have stalking statutes. The laws reflect widespread concern over the "stalking phenomenon." Nearly 1.5 million people are stalked every year. Stalking has major negative effects on its victim, including depression, substance abuse, phobias, anxiety, obsessive-compulsive behaviors, and dissociative disorders.

Sexual assault (criminal sexual conduct)

Statutes enacted in the 1970s and the 1980s have expanded the definition of "sex offenses" to embrace a wide range of nonconsensual penetrations and contacts, even if they fall far short of violent.

Resistance and Danger to the Victim

Studies have found that victims who resist to rape are more likely to be injured more. 55% of rapists reported they would get more violent if their victim resisted. U.S. Dept of Justice reported that 66% of victims who resisted were injured compared to 34% who did not. There are shortcomings in these studies though: --stranger rapes are overrepresented because it's easier to study convicted rapists, who are overwhelmingly violent stranger rapes. Acquaintance rapes are seldom convicted because they are not violent.

People v. Allen (1997)

The California Supreme Court ruled that it's not the number of feet the carjacker moved the victims but the "quality and character" of his movement that matters in asportation.

Boro v. Superior Court (1985)

The Court rued the women consented even though Boro used fraud to induce them to have intercourse with them.

People v. Chessman (1951)

The Court ruled that moving his victim 22 feet to his car was enough to get him the gas chamber.

Regina v. Morgan (1975)

The Court said the perpetrator must have the intent to rape and that recklessness is enough to acquit the perpetrator.

Simple Assault

The MPC deals with threatened and attempted battery assaults as follows: (a) attempts to cause...bodily injury to another; or (b) attempts by physical menace to put another in fear of imminent serious bodily harm. Simple assault is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case the assault is a petty misdemeanor. Most common are: assaults with the intent to commit violent felonies (murder, rape, and robbery), assaults with deadly weapons (guns and knives), and assaults on police officers.

MPC requirements

The Model Penal Code (MPC) requires the restraint to "interfere substantially with the victim's liberty," but in most state statutes, any interference with another person's liberty is enough. Physical force does not have to accomplish the detention; threatened force is enough.

Antistalking statutes

The antistalking statutes vary enormously from state to state and the US. statute.

Stalking bad result

The bad result in stalking is placing stalkers' victims in fear. States take 4 different approaches to the fear caused.

Reasonable mistake of age

The defense applies if a man reasonably believes his victim is over the age of consent. Negligence is the required mens rea regarding the circumstance element of age.

Moran v. People (1872)

The doctor tricked the victim into intercourse. The Court rejected the argument that his victim consented, and the Appeals Court upheld the doctor's rape conviction.

Kidnapping actus reus

The heart of kidnapping actus reus consists of seizing and carrying away (asportation of) the victim.

A Dirty Secret

The reforms in sex offense law were brought about because of a dirty secret finally made public: the vast majority of rape victims are raped by men they know.

First degree sexual assault

This consist of "sexual penetration," defined as sexual intercourse, cunnilingus, fellatio, anal intercourse, "or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body." In addition one of the following must have occurred: (1) the defendant must have been armed with a weapon. (2) force or coercion was used, and the defendant was aided by another person. (3) force or coercion was used, and personal injury to the victim was caused.

Threatened battery assault

Threatened battery assault requires only that actors intend to frighten their victims, thus expanding assault beyond attempted battery. Threatened battery does not require actually having the intent to injure their victims physically; the intent to frighten victims into believing the actor will hurt them is enough. Victims' awareness is critical to proving threatened battery assault. Specifically, victims' fear of an immediate battery has to be reasonable. Words are not enough, threatening gestures have to accompany them.

Reynolds v. State (1889)

Voluntary submission by the woman, while she has power to resist, no matter how reluctantly yielded, removes from the act an essential element of the crime of rape if the carnal knowledge was with the consent of the woman, no matter how tardily given, or how much force had theretofore been employed, it is not rape. In no other crime where lack of consent is an element of the crime does the law treat passive acceptance as consent.

Brown v. State (1906)

Wisconsin Supreme Court overturned a conviction of a man who raped his neighbor on the basis that the victim did not resist enough.

honest and reasonable mistake rule

a negligence mental element--because of changing sexual habits, particularly on college campuses.

objective fear only test

a reasonable person would be afraid.

prompt-reporting rule

banned prosecution unless women promptly reported rapes.

Statutory rape

consists of having sex with minors. The victim's immaturity takes the place of force. Minors cannot legally consent to sex. Statutory rape is a strict liability crime in most states. A few states, California and Alaska, do permit the defense of reasonable mistake of age.

rape

intentional sexual penetration by force without consent. Rape is a crime of violence. Rape is a general-intent crime.

Unarmed acquaintance rape

nonconsensual sex between "dates, lovers, neighbors, co-workers, employers, and so on"

sexual contacts

offensive touching

simple (second-degree) rape

penalties are less severe.

Aggravated rape

rape by strangers or men with weapons who physically injure their victims.

Rape in America

reported that 4% of acquaintance rape victims reported serious injuries, 24% reported minor injuries, 70% reported no injuries.

sexual assault statutes

shifted the emphasis away from whether there was consent by the victim to the unwanted advances by the perpetrator.

Common law rape

strictly limited to intentional, forced, nonconsensual, heterosexual vaginal penetration. It was aimed at the traditional view of rape.

The difference between battery and assault is

that assault requires no physical contact; an assault is complete before the offender touches the victim.

Commonwealth v. Mlinarich (1985)

the Pennsylvania Superior Court rules that the common law emphasis on lack of consent had "worked to the unfair disadvantage of the woman who, when threatened with violence, chose quite rationally to submit to her assailant's advances rather than risk death or serious bodily injury."

intent to instill fear test

the actor's intent to instill fear is enough, whether the acts actually caused fear or would have caused fear in a reasonable person.

Subjective fear test

the defendant's acts "induce fear in the specific person".

State v. Hauptmann (1935)

the prosecution of the man charged and convicted of the ransom kidnap and murder of Charles Lindbergh's son.

right of locomotion

the right to come and go as we please, to stay if we do not want to move, and to move if we do not want to stay.

Subjective fear only test

the victim was actually afraid.

Second degree sexual assault

this consists of "sexual contact," defined as the intentional touching of the victim's or actor's personal parts or the intentional touching of the clothing covering the immediate area of the victim's intimate parts for purposes of sexual arousal or gratification. "Intimate parts" is defined as including the primary genital area, groin, inner thigh, buttock, or breast. In addition, one of the circumstances required for first-degree criminal sexual conduct must have existed.

Fourth degree sexual assault

this consists of sexual contact accomplished by force or coercion.

Third degree sexual assault

this consists of sexual penetration accomplished by force or coercion.

Sexual penetrations

vaginal, anal, and oral