LAW 120. CRIMINAL LAW
CRIMINAL LAW IN CONTEXT // CONTEMPORARY DEBATES
CRIMINAL LAW
Criminal law is a “public law” course like property and unlike contracts, torts, or civil procedure. The latter govern disputes between
private parties as opposed to public entities. Criminal law is a statutory course that analyzes federal statutes or state penal codes or
model penal codes (MPC). The content is focused on doctrine rather than procedure. Criminal law is the study of what constitutes a
crime and why. You will learn the fundamental doctrinal precepts of substantive criminal law in the Anglo-American legal system,
and how to analyze criminal liability from the perspectives of both the prosecution and the defense (the latter includes case-in-chief
defenses—that is, attacks on the elements of the crime that the prosecution must prove beyond a reasonable doubt—as well as
affirmative defenses, including self-defense, necessity, duress, and insanity. In the final segment of the course, we will learn the
doctrine and policy rationales behind attempt, accomplice liability, and conspiracy crimes, all of which in different ways constitute
exceptions to the actus reus and mens rea requirements.
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Criminal law, much more than other doctrinal classes, represents the current views of society on a given topic, and the
belief that bad behavior should be punished (w/ punishment well calibrated to the severity of the act).
Criminal law concerns the basic topic of: what, in our society, makes a “crime,” and why?
Substantive criminal law answers the following sorts of questions:
o How do various jurisdictions define their criminal offenses?
o What are the basic elements common to every crime in the Anglo-American tradition?
o What does the prosecution have to prove in order for the fact finder to find a person guilty?
o What are the elements of particular crimes, like murder, rape, or burglary?
o What distinguishes first degree from second degree murder?
o What level of punishment does the person who has committed a crime deserve?
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The rules of criminal law tell us what a person must do to be considered guilty of a crime, but not everyone
who has technically violated a statute will be treated in the same way.
To what extent do our choices reflect the values and beliefs shared by those in our society, rendering a
person’s actions either excusable or justifiable?
TWO FOUNDATIONAL COMPONENTS: ACTUS REUS & MENS REA
The focus of the course is an in-depth analysis of two foundational components—the actus reus and mens rea requirements—the
elements that must be proved beyond a reasonable doubt by the prosecution for all crimes (subject to a few exceptions). We will
consider how these two elements apply to sexual assault crimes, murder (first and second degree), voluntary manslaughter, accidental
homicides, and the felony murder rule.
Actus Reus: One is liable only for one’s willed actions that have caused the harm as defined. Actus reus means to have “a
guilty hand” or to have committed “a guilty act.” It generally refers to an overt act in furtherance of a crime. (Translates to
an intentional act).
Mens Rea: One is liable when that act is accompanied by the mental state as defined by the penal code (or judge-made
law). Mens rea means to have “a guilty mind.” The rationale behind the rule is that it is wrong for society to punish those
who innocently cause harm. (Translates to a state of mind / a mental state of intent).
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Example: You decide that you want to rob a bank. In furtherance of that act, you go buy a gun, mask, handcuffs, etc.
and execute the robbery. The court will then look at your intent. Did you have the intent of the doer at the time of the
doing (i.e., contemporaneously)? If so, then you likely had the mens rea.
CRIMINAL vs. CIVIL CASES
There are often higher stakes in criminal cases, for if someone is convicted, the state may take away that person’s liberties by
imprisoning them or keeping them in jail prior to a conviction. In addition to loss of liberty and loss of life potential, there are higher
hurdles in criminal law than in the civil context—the most significant being the “burden of proof.” P must prove EVERY element
of a crime BARD in order for a conviction to attach. The bar is generally higher for criminal convictions because of the stigma that
comes with it—there is a lot more weight behind “I am a convicted felon” vs. “I got sued in a tort case due to a car accident.” Loss
of liberty and loss of life potential > merely owing monetary damages. What distinguishes criminal vs. civil sanctions is that criminal
sanctions reflect the judgment of community condemnation which accompanies and justifies its imposition (i.e., reflects an
expression of the community’s hatred, fear, or contempt for the convict). (presumption of innocence).
MORAL CONDEMNATION
In criminal law, punishment includes a moral condemnation by the community/ by one’s peers—in essence, the prosecutor is always
the state, the community.
INSTITUTIONAL LEGITIMACY
Institutional legitimacy is an extremely important concept in criminal law—we will talk about the structure of the relationship
between the legislature, which writes the penal code, and courts, which interpret the codes and apply the law, and the executive
branch, which is essentially composed of the police and prosecutors. Institutional legitimacy is often challenging for many jurors to
accept, and this can create inequalities in the criminal justice system.
PRESUMPTION OF INNOCENCE
There is a legal principle in the U.S. that you are presumed innocent until proven guilty—and guilt beyond a reasonable doubt is
extremely hard to prove.
BASIC PRINCIPLES
Criminal law concerns a basic topic: What in our society makes a “crime,” and why? Substantive criminal law answers these sorts
of questions: How do various jurisdictions define their criminal offenses? What are the basic elements common to every crime in
the Anglo-American tradition? What does the prosecution have to prove in order for the fact finder to find a person guilty? What are
the elements of particular crimes such as rape, murder, or burglary? What distinguishes first degree from second degree murder?
Criminal law also addresses questions such as what level of punishment does the person who has committed a crime deserve? Not
everyone who has technically violated a statute will be treated in the same way.
DEFENSES
Sometimes the issue will be whether a person ought to be considered capable of committing a crime at all—for example, the insanity
defense is based on the theory that people who commit crimes because they are insane lack the prerequisite for criminal punishment.
But if the person is in fact capable of moral choice, the issue is then whether and to what extent that choice reflects values and beliefs
shared by those in society, rendering that person’s actions excusable or justifiable. For instance, a person who kills in the “heat of
passion” is considered less blameworthy than a person who kills in cold blood. A person who kills in self-defense may not be
considered blameworthy at all.
MORALITY
Criminal law is inextricably intertwined with issues of morality. It engages one’s moral intuitions and is often taught as a branch of
moral philosophy. Anglo-American culture includes widely held ideas about responsibility, blame, punishment, and these ideas have
shaped our criminal law. When does a legal rule or doctrine become so lacking in support from contemporary moral culture that it
should be abolished or radically altered? By what means may such a rule or doctrine be changed to reflect a new moral consensus?
What is the proper relationship between morality and culture?
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Culture: Our moral intuitions are influenced by our culture, by which we are socialized by family, friends, schools,
and mass media, accepting some broad beliefs, and rejecting others. But no culture is monolithic; cultural meanings
shift over time. Culture often contains conflicting beliefs and values, and even contains subcultures with very different
traditions and perspectives (U.S. is a multicultural nation). But what happens when there is no cultural consensus on
moral issues—whose view gets written into the law? What is the proper relationship between culture and morality?
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Moral Duties vs. Legal Duties: While criminal law reflects popular morality, it is also independent of morality. Not
everything that is a moral duty is necessarily a legal duty. To what extent should criminal law reflect, at a minimum,
standards of behavior necessary to a functioning society—and to what extent should it push people to be better to one
another than they might otherwise choose? What discretion should be available to each institutional actor to apply or
interpret the law in the way he or she sees fit? How is that discretion limited—by constitutional rules, by rules of
interpretation, or by the actions of others within the criminal justice system? [Not everything that is immoral is illegal;
concept of what is “moral” differs from person to person; could also lead to inefficiencies in the courts if otherwise].
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COMMON LAW & THE PENAL CODE
There are common law jurisdictions and Model Penal Code (MPC) jurisdictions. Each of the 50 states has its own criminal code
(also known as the penal code), and the U.S. military even has its own criminal code. In both common law and MPC jurisdictions,
the basic contours of the relevant law will usually be found in a statute. A good attorney will begin by looking at the applicable
statute—but they should not stop there—they will also research how the judges in the jurisdiction have interpreted the statute. Thus,
in both common law and MPC jurisdictions, understanding the case law (the judicial opinions) which interpret the criminal statutes
is key to understanding what the law is.
FEDERAL LAW
Criminal law is also influenced by federal law, the most important federal source being the United States Constitution. The
Constitution sets limits on the ways in which government actors can punish criminal behavior (i.e., prohibition of cruel and unusual
punishment). Federal law is inherently limited by the Constitution—the Constitution does not specifically authorize federal criminal
law, so there are limits on what kind of federal crimes there can be.
SPECIAL ROLE OF STATUTORY INTERPRETATION
The primary source of criminal law in the U.S. is statutory law. No statute, however, is self-interpreting; and judges play a significant
role in deciding what a particular statute means, and how it should apply to particular cases. Whether the jurisdiction is one whose
penal code is based on the common law or one that has incorporated the MPC whole or in part, judges must develop ways to interpret
statutes to serve a number of goals—these include:
(1) respecting the “plain language” of the statutory text;
(2) discerning and effectuating the intent of the legislature or, in the case of an initiative, the voters;
(3) and making sure that the interpretation of a particular statute in one case does not contradict its
interpretation in another.
à Some judges in the US have developed a body of informal rules over time to help them
interpret statutes; some address what values judges should prioritize in the interpretation
process—i.e., interpreter should always begin with the text of the statute itself. Other rules
address grammar and syntax issues that frequently arise in textual interpretation—two of these
are noscitur a sociis and ejusdem generis [See United States v. Dauray].
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Some rules of statutory interpretation—such as the rule of lenity—reflect basic principles of fairness.
ACCOMPLICE LIABILITY
ACCOMPLICE LIABILITY
ACCOMPLICE LIABILITY: AIDING AND ABETTING
Accomplice liability is the principle that you are guilty, under certain conditions, for crimes that someone else committed if you
helped them to commit that crime (e.g., “aiding and abetting;” “conspiracy;” both are group crimes). The evidence of aiding and
abetting may be as broad and varied as are the means of communicating thought from one individual to another; by acts, conduct,
words, signs, or by any means sufficient to incite, encourage or instigate commission of the offense or calculated to make known
that commission of an offense already undertaken has the aider's support or approval. Mere presence, of course, and even mental
approbation, if unaccompanied by outward manifestation or expression of such approval, is insufficient.
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Before an accused may become liable as an aider and abettor, he must share the criminal intent of the principal. There must
be community of purpose, partnership in the unlawful undertaking. “To aid and abet another in a crime one must share the
intent or purpose of the principal.
If two or more acting independently assault another, and one of them inflicts a mortal wound, the other is not guilty as an
aider and abettor. An aider and abettor is a partner in the crime, the chief ingredient of which is always intent. There can be
no partnership in the act where there is no community of purpose or intent.”
“To render one an aider or abettor and, as a consequence, guilty in like degree with the principal in the commission of a
crime, there should be evidence of his knowledge of the intention or purpose of the principal *616 to commit the assault.
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In other words, there must have been a ‘common purpose’ by which is meant a like criminal intent in the minds of Mills
and the appellant, to render the latter guilty as charged, and hence authorize the giving of the instruction.”
The accused may not be held for the independent act of another even though the same person be the victim of an assault by
both. In such circumstances there is wanting that sharing of criminal intent essential to proof of aiding and abetting.
BLACKLETTER LAW OF ACCOMPLICE LIABILITY (AIDING AND ABETTING)
1. Every person concerned in the commission of an offense, whether he directly commits the offense or procures,
counsels, aids, or abets in its commission, may be indicted, or informed against as if a principal; the distinction
between an accessory before the fact and a principal was abolished in this State so that every person concerned in
the commission may be prosecuted, tried, and punished as a principal.
2. The evidence of aiding and abetting [liability for a crime as an accomplice] may be as broad and varied as are the
means of communicating thought from one individual to another; by acts, conduct, words, signs, or by any means
sufficient to incite, encourage or instigate commission of the offense or calculated to make known that commission
of an offense already undertaken has the aider's support or approval. [AR component]
3. Evidence of aiding and abetting may be inferred; whether or not the evidence constitutes aiding and abetting is a
question of fact for the jury.
4. Mere presence, and even mental approbation, if unaccompanied by outward manifestation or expression of such
approval, is insufficient.
5. The accomplice must share the criminal intent of the principal. The MR required to convict a principal in an
underlying crime is the same required to convict an accomplice. [MR component]
6. Intent can be inferred from behavior that encourages the act or that informs the confederates that the person
approves of the crime after the crime has been committed. This is a question of fact for the jury.
7. Punishment: At common law, aiders and abettors were not punished to the same extent as principals to a crime.
However, many jurisdictions, including New Mexico, have abolished the distinctions between the two for
punishment purposes. (accomplice liable for underlying crime, just as if they had done the act themselves).
§ The above applies to New Mexico + a majority of the states
§ P gets a lot of leeway when we say “any kind of communication” suffices
§ We do not need to have direct evidence of the words/signs that incite; can be inferred, circumstantial; it
is a jury question
State of New Mexico v. Ochoa (TBD) Once an individual in an altercation realizes that another member of his side
is using a deadly weapon, the individual may be inferred to share the other member’s MR if the individual continues
participation. [accomplice liability; you need shared intent of the principal actor; if the accomplice continued to act after
becoming aware of the purpose, that’s sufficient.
JURY NULLIFICATION IN THE CONTEXT OF DRUG POSSESSION CRIMES
JURY NULLIFICATION
Jury nullification generally occurs when members of a criminal jury trial believe that a defendant is guilty, but choose to acquit
the defendant anyway, because either the jurors consider that the law itself is unjust, that the prosecutor has misapplied the law
in the defendant’s case, or that the potential punishment for breaking the law is too harsh. (Some juries have also refused to
convict due to their own prejudices in favor of the defendant).
POSSESSION OFFENSES
Possession offenses have not attracted much attention, yet there are everywhere in modern American criminal law. So broad is
the reach of possession offenses, and so easy are they to detect and then to prove, that possession has replaced vagrancy
(homelessness) as the sweep offense of choice. They are backed by a wide range of penalties, and thus can remove undesirables
for extended periods of time—even for life. Even though possession offenses break virtually every law in the book of cherished
criminal law principles, they so far have been insulated against constitutional attack. Millions of people commit one of its
variants every day, from possessing firearms and all sorts of other weapons, dangerous weapons, instruments, appliances, or
substances including toy guns, air pistols and rifles, tear gas, ammunition, body vests, drugs, and the list could go on and on
(pg. 897).
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PUNISHMENT TRENDS
IS ABOLITION THE SOLUTION?
PURPOSES OF CRIMINAL PUNISHMENT
RRIDD
The purposes of criminal punishment lurk in the background of much of substantive criminal law, such as behind key concepts
(voluntary act requirement, mens rea, etc.), definitions of crimes in the penal code, and rulings by appellate judges. The list below
is far from exhaustive, but each rationale has spawned a theoretical and / or empirical scholarly literature in philosophy,
criminology, and other fields.
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Retribution: Punish for vengeance (eye for an eye) for society / victim; looks backward in time.
o Punish severely to give one what they deserve for their criminal conduct
Rehabilitation: Punish in order to reform and educate the wrongdoer; looks forward in time.
o Belief that a person convicted of a crime can be “cured” of their wrongs by being sent to prison and supervising
them, w/ end goal being to make them better and to ease their transition back into society
Incapacitation: Punish in order to protect future victims; looks forward in time.
o Some people are “just simply dangerous,” and society may be better off / more protected by keeping them within
prison walls
Deterrence, Specific: Punish so that wrongdoer won’t do it again; looks forward in time.
o Punishing one individual for certain criminal activity will deter them from engaging in that activity again in the
future
§ High % of repeat offenders, so this might not work as well
Deterrence, General: Punish so future wrongdoers will weigh the “costs” of conviction plus punishment against the
“benefits” of committing the crime; looks forward in time.
o By punishing people for certain criminal activity, others will be deterred from engaging in similar behavior
These justifications all relate to community values and the idea that we, as a society, look wrongly upon certain bad behaviors, and
that punishment should be calibrated to the severity of the crime committed.
NOTION OF CULPABILITY
The deterrence of punishment is served by the requirement that one accused of a crime must concurrently possess the AR and the
MR. Why? It helps to ensure that D is not punished w/o the requisite culpability; the concurrence minimizes punishment by
ensuring that those who innocently/involuntarily cause harm are not punished and that we do not punish “bad thoughts” alone. We
want punishment to be well-calibrated to the severity of the act.
• Notion of culpability encompasses both the bad act/conduct [AR] and the bad [MR].
• We do not want to punish those who cause social harm via involuntary behavior b/c we think that they had no choice in
the matter (notion of choice)
• Rather, we want to punish those who had no third party forcing them to act to cause the social harm.
• In terms of MR, we want to punish those actors who had a blameworthy mental state; and we can look to AR to prove the
MR, because we can often infer whether someone had a blameworthy state of mind from the AR.
o Why should we require P to prove D’s mental state BARD? So we can accurately calibrate punishment; helps us
sort of rank Ds in terms of their culpability.
o We think that if P can prove BARD that D had a particular MR at the time of the conduct (AR), that shows us
that this particular D has violated the social contract by causing the social harm.
o In a Western idea of free will/individuality, we want to believe/subscribe to the idea that a person who intends to
cause social harm deserves more punishment than one who caused social harm unintentionally.
What Constitutes Criminal Liability / What Justifies Punishment / What Constitutes a Crime?
• a voluntary act or failure to act under limited conditions
• that is performed w/ a specified mental state (specified by the legislature or judge-made common law)
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that inflicts or threatens to inflict (in the case of inchoate or incomplete crimes)
harm to individual public interests (social harm)
w/o justification or excuse (categories of defenses)
THE ACTUS REUS REQUIREMENT
THE ACTUS REUS REQUIREMENT
COMMON LAW APPROACH TO ELEMENTS OF A CRIME
Most crimes in the U.S. consist of four basic elements (pg. 147):
(1) a voluntary act (or omission where there is a legal duty to act) that results in some kind of social harm (actus reus) [AR];
(2) a prohibited mental state (a mens rea or guilty mind) [MR];
(3) a chain of causation that links D’s actions w/ the prohibited social harm; and
(4) concurrence in time/space between the MR and AR.
Note: There are crimes that have a separate social harm/result element (which is determined by the legislature and set
forth in the penal code/definition of the crime) but also crimes that have no separate result/social harm element b/c the
legislature has decided that the social harm of that crime is contained or implied or wrapped up or included in the very
conduct.
§ Ex. All homicide crimes have a separate social harm/result element (result = victim’s death)
MPC APPROACH TO ELEMENTS OF A CRIME
• How does the MPC approach the elements of a crime?
o CB is just a start, we will see that what elements P must prove BARD varies by crime (as defined by legislature
and interpreted by judges).
o MPC breaks all the elements into FOUR categories [spelled out in the penal code (not divined by ACs)]
§ Conduct [AR]
§ Mental state [MR; one of four]
§ Attendant circumstances [AC; anything in definition of crime not AR, MR or result/causation; e.g., D’s
or V’s age]
§ Result of conduct [including causation]
Two AR Principles:
(1) If no bad act, no crime (we don’t punish people for their bad thoughts alone)
(2) If no voluntary act, no crime (we don’t punish people for involuntary movements)
The AR requirement can be thought of as an “umbrella” term that ties together several loosely related doctrines / concepts:
• First, there is the notion that in the U.S., a person should not be convicted solely on the basis of his thoughts, but also
must have done something that caused some sort of social harm.
• Second, D’s act must have been voluntary.
• Third, there is a general rule that there can be no criminal liability for an omission unless the person who failed to act had
a legal duty to act.
• Fourth, there is a notion that “status crimes” are unconstitutional: people should only be criminally punished for their
conduct, not simply for being a certain kind of person.
Actus reus requires (1) a voluntary act (or omission where D a legal duty to act); that (2) causes; (3) the social
harm. BUT because causation analysis can become quite complicated, courts tend to treat causation as a separate
element of the crime. [See CB pg. 301].
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What constitutes criminal liability? Or what justifies criminal punishment? (versions of the same question)
o voluntary conduct (or, failure to act, under limited conditions)
o that is performed with a specified mental state (by leg or judicial common law)
o that inflicts (or threatens to inflict, in the case of inchoate—or incomplete crimes)
o harm to individual or public interests (social harm)
o that is without justification and excuse [these are legal terms of art, the two categories of affirmative defenses].
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PROSCRIPTION AGAINST THOUGHT CRIMES
One of the basic principles of Anglo-American criminal law is that the state cannot punish a person merely because he has bad
thoughts. The criminal law generally requires an act in addition to a culpable mind-set before an individual can be held criminally
liable. (Can or should one be punished more severely if he commits a violent crime against an individual because of her race,
religion, national origin, gender, or sexual orientation? Can or should one be punished for writing about evil deeds in his private
journal?)
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The idea that “thought crimes” are prohibited under American law suggests that D must have committed some kind of
action in addition to having thoughts in order to be prosecuted. But drawing a bright line between thought and action is not
easy.
o The criminal law tries to answer the question of, at what point is it appropriate for police to step in, through its
treatment of so-called “inchoate” crimes, which endeavor to criminalize conduct leading up to the completed
social harm, so that the police may apprehend a person before the social harm occurs.
§ “inchoate” crimes are crimes that have not occurred yet (e.g., conspiracy/attempt crimes)
Wisconsin v. Mitchell (1993). D was a young black man who, along w/ a group of friends, beat up a white boy in Wisconsin.
D instigated the attack after watching a movie in which a white man beat up a black boy, asking his friends, “Do you all
feel hyped up to move on some white people?” D was convicted of aggravated battery. The trial court increased his sentence
under a Wisconsin “hate crimes” statute, which permitted penalty enhancements for Ds who selected victims based on their
race. D argued that the statute was unconstitutional under the First Amendment, because it punished the motives behind the
attack. The United States Supreme Court considered the statute’s constitutionality. The First Amendment permits states
to enact statutes imposing stricter penalties on defendants who choose victims based on their membership in a
protected class, such as race. The First Amendment permits states to enact statutes imposing stricter penalties on Ds who
choose victims based on their membership in a protected class, such as race. While D argues that Wisconsin’s hate crimes
statute is unconstitutional, because it punishes motive, this Court has held in prior cases that federal and state antidiscrimination laws may address discriminatory motives as long as the targeted conduct is not protected speech under the
First Amendment. This case is distinguishable from R.A.V. v. City of St. Paul, Minnesota, (1992), in which the Court struck
down a hate crimes statute. In that case, the statute prohibited certain “fighting words,” i.e., words containing “messages of
‘bias-motivated’ hatred.” The Court determined that this prohibition constituted a content-based regulation and therefore
violated the First Amendment. The statute at issue here, however, does not expressly target protected speech. Wisconsin
determined that crimes motivated by racial bias deserve enhanced penalties, because those crimes are more harmful to the
victims and society at large. This is a sufficient explanation for penalty enhancements and does not constitute a contentbased regulation. Therefore, the penalty-enhancement statute does not violate the First Amendment and is upheld.
VOLUNTARY ACT REQUIREMENT
In general, a person cannot be convicted of a crime unless he or she commits a voluntary (i.e., “volitional”) act that causes social
harm. A volitional act is a movement of the body willed by the actor. BUT one should be careful not to assume that an act is
involuntary simply because the actor is unaware of what she is doing as she is doing it—habitual acts are generally considered
volitional even if “the actor is unaware of what she is doing as she is doing it.”
• Example: A person who hits another with his arm due to an epileptic seizure has committed an involuntary act; the actor is
unaware of what he is doing as he is doing it. But a habitual, chain-smoker who lights up a cigarette “without thinking,” or
a driver coming home from work who changes lanes at the same place on the freeway everyday w/o noticing has still
committed a voluntary, not involuntary act. Why?
o This is because consciousness is a matter of degree—and the law treats habitual acts as falling on the voluntary
side of the continuum.
Martin v. State (1944). D was arrested at his home by police officers and placed in a police vehicle where he was separately
charged for being drunk and using loud and profane language on a public highway. D was convicted under a state statute
which held that any person who, while intoxicated or drunk, appeared in “any public place where one or more persons are
present, and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on
conviction, be fined.” Criminal liability may only be imposed when the unlawful conduct is committed voluntarily.
Under the plain language of the statute, one convicted of being drunk in a public place must have voluntarily placed himself
there. If the accused is taken involuntarily and forcibly carried to a public place by an arresting officer, a charge of being
drunk in a public place cannot stand. Judgment reversed.
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State v. Decina (1956). D suffered an epileptic attack while driving which caused his vehicle to travel at a high rate of
speed, jump a curb, and strike four individuals, killing them. D was charged w/ and convicted of “criminal negligence in
the operation of a vehicle resulting in death.” D appealed, claiming the trial court erred in overruling his demurrer to the
indictment and allowing the admission of incomplete testimony. Appellate division held that the demurrer was properly
overruled but reversed and remanded to the trial court for a new trial on the second issue. D and P appealed to the Court of
Appeals (highest court in NY state). A criminal defendant who disregards the consequences that can result from
driving a vehicle w/ knowledge of a health condition that can produce involuntary actions may be found guilty of
vehicular homicide. D argues that his demurrer as to the indictment should have been sustained b/c the indictment didn’t
charge him w/ a crime. The indictment clearly states a violation of New York’s Penal Code. It states that D, knowing “that
he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness for a considerable period of
time” was culpably negligent “in that he consciously undertook and did operate” a car on the public highway and “while
doing so,” suffered such an attack which caused the death of four persons. To be found guilty under the law, it is sufficient
that D’s conduct manifested a “disregard of the consequences which may” result from his actions. Here, D had prior
knowledge that he was subject to epileptic attacks at any time and that driving, given his condition, was very dangerous.
However, D disregarded this knowledge and chose to drive his vehicle anyways. Consequently, D’s awareness of this
epileptic condition coupled w/ a disregard of the consequences renders him liable for culpable negligence. Affirmed.
Dissent: While the appellate division is correct in remanding the case for a new trial, it erred in not sustaining D’s
demurrer to the indictment. The majority seems to hold that D’s epileptic blackout while driving, which resulted
in the deaths of four persons, was due to his reckless driving. However, reckless driving logically implies an
affirmative act on the part of a driver, not an involuntary, unconscious state. Therefore, every time D drives his
vehicle in the future and suffers an epileptic moment, whether resulting iƒn an accident or no accident, he may be
found guilty of reckless driving. Such a result is illogical.
§ Most states agree w/ the dissent that you can’t be reckless while unconscious.
LIABILITY FOR OMISSIONS
Despite the general rule that a voluntary act that causes the social harm is necessary to satisfy the AR requirement, criminal
liability can be based upon an omission where D had a legal duty to act and was physically capable of acting. The omission which
replaces the voluntary act must also cause the social harm, and D must act w/ the requisite MR in order to be convicted of the
offense.
The courts have recognized 5 situations in which individuals have a legal duty to act:
(1) Where there is a special relationship between D and the victim, such as the relationship between husbands and wives,
parents and children, and masters and servants;
(2) When D enters into a contract which requires him or her either explicitly or implicitly to act in a particular way (e.g., a
contractual duty to provide care to an elderly individual);
(3) Where there is a statutory duty to act (such as the duty to pay federal taxes found in the Internal Revenue Code)
(4) When D creates the risk of harm to the victim; and
(5) When D, who otherwise would not have a duty to act, voluntarily assumes care of a person in need of help.
Physical Capability Required
• In order to be held liable for an omission, D must have been physically capable of acting.
o Example: if D is a mother whose child falls into a swimming pool, the mother ordinarily would have a duty to
rescue her child (or at least attempt such a rescue) due to the special relationship recognized by courts between
parents and their children.
§ If the mother just stands there and watches her child drown w/o jumping into the pool to attempt a
rescue, she could be charged w/ negligent homicide so long as she had the requisite mental state required
for commission of the crime.
§ BUT if the mother does not know how to swim or could not swim due to some physical limitation, then
she could not be held liable for her failure to jump into the pool (she may, however, be held criminally
liable for failing to throw her child a life preserver if one was available and she was physically capable of
throwing it to her child).
Commonwealth v. Pestinikas (1992). Kly met Ds when he contacted them about pre-arranging his funeral. Kly was
hospitalized and diagnosed with a disease that made it difficult for him to swallow food. Upon discharge, Kly said he did
not want to return to his stepson’s home, and arrangements were instead made for Ds to care for Kly in their home. On the
8
day of Kly’s discharge, Ds were given care instructions and a prescription to fill. Ds orally agreed to follow the instructions
and provide Kly with food, shelter, care, and the required medicine. The prescription was never filled, and instead of
allowing Kly to live in their home, Ds placed him in a small, enclosed porch of a distant building, where there was no
insulation or bathroom, and he was exposed to outside weather conditions. Ds took Kly to the bank where they had their
names added to his account. Over time, Ds withdrew over $30,000 from the account. About two years after Kly’s discharge,
he was found dead, and an autopsy revealed starvation and dehydration as the causes. Ds were charged with murder, and at
trial, the judge instructed the jury that Ds could not be found guilty of a malicious killing for failing to supply food, shelter,
and medicine, unless a duty to do so had been imposed upon them by contract. The jury charge was based on a state statute,
18 Pa.C.S. § 301(b), which states that liability may not be based on an omission unless the omission is sufficient as defined
by the criminal statute or a duty to perform the omitted act was “otherwise imposed by law.” The jury found the defendants
guilty of third-degree murder. Ds appealed, arguing that the jury instructions were incorrect. A failure to perform a duty
imposed by a private contract may be the basis for a criminal charge. An omission to act may support a criminal
prosecution if (1) such a failure causes the death of another person, and (2) all other elements of the offense are satisfied. It
is clear that when a duty is imposed by law, and a statute makes an omission to perform a legal duty sufficient for criminal
liability, there was a purposeful distinction between a legal duty to take affirmative action and a mere moral duty to act. A
contractual duty to act is legally enforceable and therefore forms a legal duty. As a result, failing to perform a duty
undertaken in a contract may properly support a criminal murder charge. But the omission to act must also be joined by the
requisite MR. In the absence of malicious intent, an omission to perform private contractual duties will not suffice for a
murder conviction. Here, there was evidence that Kly’s death had been caused by the Ds failure to provide food and medical
care, which they had agreed to do by oral contract with hospital personnel. If the jury found that Ds maliciously deprived
Kly of required food and care, a murder conviction would be appropriate. Therefore, the Ds omission to act was sufficient
to support a conviction for murder, and the trial court’s jury instructions were correct.
GOOD SAMARITAN LAWS // “NO DUTY TO RESCUE” RULE
In the U.S., there are two categories of statutes—one civil and one criminal—that are referred to as “Good Samaritan” laws. The
first type of statute protects from civil liability those who help or rescue others in emergency situations (many of these types of
laws apply to specific kinds of professional helpers, such as physicians, emergency medicine technicians, and firefighters). A
second type of “Good Samaritan” statute imposes an affirmative duty on ordinary people to assist others in need; failure to provide
such assistance may result in criminal punishment.
§
§
Hawaii’s Good Samaritan Statute [See CB pg. 175-76]
Vermont’s Good Samaritan Statute [See CB pg. 176]
PROHIBITION AGAINST “STATUS CRIMES”
The prohibition against “status crimes” concerns the idea that people should be punished only for their conduct and not for being a
certain kind of person. (i.e., can the state punish a person for being a narcotics addict or a chronic alcoholic—and is their conduct
not entirely voluntary due to their addictions?).
MENS REA REQUIREMENT
MENS REA
P must prove beyond a reasonable doubt that D had the requisite intent. Intent not required for strict liability cases. MR may be
inferred from conduct, circumstantial evidence, and common knowledge. MR typically refers to “the particular mental state
provided for in the definition of the offense” (sometimes referred to as “scienter” or “intent” requirement).
INTRODUCTION
1. What are the “elements” of a crime?
• Elements are the component parts of the crime
2. How do you know what those elements are?
• First, look to the statute—how has the legislature defined the crime?
• Second, look to the courts—how have appellate judges defined the elements?
3. Each element must be proven BARD by P.
• D will attempt to frustrate P by raising a reasonable doubt about at least one element (“case-in-chief defenses”).
9
•
Sometimes, D has the option of making “affirmative defenses”
o Determined by penal code and judge-made law.
o Most of the time, D has burden of proving POE the affirmative defense.
§ Like crimes, defenses are composed of elements.
§ Elements are determined the same way: statute + judge-made law.
• In a criminal case, D has 3 options:
1. Tell P that he/she did not meet their burden of proof (P did not prove the elements).
2. Attack P’s case-in-chief; challenge P’s proof of the case on legal grounds (prima facie defense; D taking
stick and poking holes in P’s case).
3. Raise an affirmative defense (e.g., self-defense, insanity, etc.) – D need only prove affirmative defenses
by a POE (preponderance of the evidence).
à Note: These attacks are not mutually exclusive; if you do (1), you are not going to do (2) and (3),
but if you do (2), you are still probably going to do (3).
COMMON LAW vs. MPC
Dramatic differences exist between common law and MPC approaches to MR. How do the elements differ in traditional common
law jurisdictions vs. the MPC?
• At an abstract level, the process is similar under both ideal types of criminal jurisdictions
• Upon a closer look, however, discerning the elements in common law jurisdictions is more cumbersome than doing
so under the MPC.
o The fundamental innovation of the MPC is the precision of § 2.02, reducing the need for judicial
interpretation regarding the elements.
§ Only four MR terms that are specifically defined vis a vis the MPC’s three additional [beyond MR,
that is] element categories:
(1) Conduct (AR)
(2) Result (Causation / Social Harm)
(3) Attendant Circumstances (AC)
- Under the MPC, all elements (components of the crime) that are not MR, AR, or
Result are attendant circumstance elements.
§ Each element must be proven BARD by P—D tries to raise reasonable doubt about each of them but
need only raise doubt on one to defeat the offense.
§ MR applies to all “material” elements of the offense [See MPC § 2.02(3)].
- If material, P must prove the element BARD
§ If the MPC crime does not state the MR, assume it is recklessness or higher [See MPC § 2.02(4)].
§ MPC either rejects or limits common law doctrines applicable to proving MR
o Common Law: Produced wide variety of terms used to describe a person’s mental state (e.g., willfully;
maliciously; corruptly; intentionally; knowingly; recklessly; negligently).
§ Terms have to relationship to one another / do not always mean same thing from statute to statute.
§ Developed a distinction between “specific intent” and “general intent” crimes (courts have defined
these terms in different and sometimes conflicting ways).
o MPC: Recognizes only four mental states: (1) purposely; (2) knowingly; (3) recklessly; and (4) negligently. [See
MPC § 2.02(2)].
§ Terms are precisely defined, have a logical relationship to one another, always mean same thing
wherever they appear
§ When no mental state is expressed in statute, mental state element is satisfied where person acts
purposely, knowingly, or recklessly. [See MPC § 2.02(3)].
o In other words, under MPC, if no MR element is specified, default rule is that “recklessness”
(or higher) is sufficient to prove the mental state element (i.e., P must prove a reckless mental
state at a MINIMUM).
Penal Purposes for MR Requirement
• Retribution—it is morally unjust to punish those who accidentally cause social harm.
• Deterrence—one cannot be deterred from criminal activity unless he appreciates the punishment.
o BUT even if D cannot be deterred, his punishment can deter others
• Rehabilitation—one who causes harm accidentally is harmless; thus, not in need of rehabilitation.
o BUT punishment can influence them to change lifestyle and avoid activities that could result in
harm to others
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(MPC) SECTION 2.02. GENERAL REQUIREMENTS OF CULPABILITY
(1) Minimum Requirements of Culpability.
Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or
negligently, as the law may require, to each material element of the offense.
(2) Kinds of Culpability Defined.
(a) Purposely. A person acts purposely w/ respect to a material element of an offense when:
(i)
if the element involves the nature of his conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to cause such result; and
(ii)
if the element involves the attendant circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
(b) Knowingly. A person acts knowingly w/ respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his
conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will
cause such a result.
(c) Recklessly.
A person acts recklessly w/ respect to a material element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be
of such nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances
known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person
would observe in the actor’s situation.
(d) Negligently.
A person acts negligently w/ respect to a material element of an offense when he should be aware of a substantial
and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a
nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would
observe in the actor’s situation.
(3) Culpability Required Unless Otherwise Provided.
When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is
established if a person acts purposely, knowingly, or recklessly w/ respect thereto.
(4) Prescribed Culpability Requirement Applies to All Material Elements.
When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense,
without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the
offense, unless a contrary purpose plainly appears.
(5) Substitutes for Negligence, Recklessness, and Knowledge.
When the law provides that negligence suffices to establish an element of an offense, such element also is established if a
person acts purposely, knowingly, or recklessly. When recklessness suffices to establish an element, such element also is
established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element
is also established if a person acts purposely.
(6) Requirement of Purpose Satisfied if Purpose is Conditional.
When a particular purpose is an element of an offense, the element is established although such purpose is conditional,
unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.
(7) Requirement of Knowledge Satisfied by Knowledge of High Probability.
When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person
is aware of a high probability of its existence, unless he actually believes that it does not exist.
(8) Requirement of Willfulness Satisfied by Acting Knowingly.
A requirement that an offense be committed willfully is satisfied if a person acts knowingly w/ respect to the material
elements of the offense, unless a purpose to impose further requirements appears.
(9) Culpability as to Illegality of Conduct.
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Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence,
meaning, or application of the law determining the elements of an offense is an element of such offense, unless the
definition of the offense or the Code so provides.
(10) Culpability as Determinant of Grade Offense.
When the grade or degree of an offense depends on whether the offense is committed purposely, knowingly,
recklessly, or negligently, its grade or degree shall be the lowest for which the determinative kind of
culpability is established w/ respect to any material element of the offense.
MALICE
A person acts with malice if he intentionally or recklessly causes the social harm prohibited by the offense.
Regina v. Cunningham (1957). D tore off gas meter in the cellar of a home and stole the money inside. D failed to turn
off gas despite stop tap being only two feet away, and gas seeped into adjacent home where elderly woman was sleeping.
Woman was partially asphyxiated, and D was convicted under a statute for “maliciously” causing another to take a poison
/noxious thing. D appealed. Conviction reversed. “Maliciously” requires that D act with (1) actual intention to do the
particular kind of harm that was done or (2) recklessness as to whether such harm might occur (i.e., reckless
disregard of a foreseeable risk that the particular harm might occur; foresees risk but proceeds w/ act anyway). Trial
judge incorrectly instructed jury that “malicious” means “wicked,” or doing something that one knows she should not do.
Jury should have been left to decide whether D foresaw possible injury occurring from his actions but nevertheless removed
the meter.
•
•
Under MPC, would be “purposely” or “recklessness”
Two steps:
(1) What is the crime? Look to statute to find MR term (i.e., “maliciously”)
(2) How do we know what “malicious” means? Look to the courts and see how they interpreted the statute
STATUTORY INTERPRETATION
Sometimes a statute expressly includes a mental state, but it is not clear which element or elements that mental state modifies.
Under the common law, the court must use canons of statutory construction to ascertain the legislature’s intent.
*Think About the Below Sequentially*
(1) Plain Meaning: Within the context of the statute as a whole, what is the plain meaning of the word or phrase
contested by the parties? After courts exhaust plain meaning interpretation, only if there is still ambiguity do you
move on to canons of construction.
(2) Canons of Construction: A mixture of more than a dozen rules of thumb that courts use to discern the meaning of a
word or phrase in a statute. After courts exhaust canons of construction, only if there is still ambiguity do you move
on to legislative history.
§ Particular rules about grammar and punctuation
§ Structure of overall statute
§ “Absurdity of results”
§ More properly thought of as “rules of thumb” than actual canons of rules
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(3) Legislative History: “When the plain language and canons of statutory [construction] fail to resolve statutory
ambiguity, we will resort to legislative history. [See U.S. v. Dauray].
§ Can be problematic because very subjective / interpretive
§ You have the specter of the judicial branch usurping the power of the legislative branch (delicate dance
between branches; leg. history opens door for some dangerous moves in that context)
§ Only get here if (1) and (2) are inconclusive
(4) Rule of Lenity: If a statute remains ambiguous, we apply the rule of lenity. This means the court must resolve any
ambiguity in a criminal statute in favor of D (due to the presumption of innocence; high burden of beyond a
reasonable doubt; and notion of fair notice). This rule of statutory interpretation reflects basic principles of fairness:
all doubts when reading a criminal statute should be resolved in favor of D, in recognition of the important liberty
interests at stake and the presumption of innocence.
à Notion of Legality: Providing fair/constructive notice via publication in the statute.
United States v. Dauray (2000).
United States v. Yermian (1984). D was hired by a contractor of the DoD. As part of his security clearance process, D
was asked to fill out a questionnaire that asked whether he had been charged w/ any violations of law. He failed to disclose
an earlier conviction for mail fraud and falsely reported that he was employed by two companies for which he had never
worked. D signed a form certifying that his answers were true and that he understood he would be subject to prosecution
under U.S.C. § 1001, which makes it a crime to make false statements in a matter within the jurisdiction of a federal agency.
Investigators found out that D had submitted false statements. D admitted to having actual knowledge that his statements
were false, but said he had no actual knowledge that his false statements would be communicated to a federal agency. D
requested a jury instruction requiring P to prove that there was actual knowledge of the false statements and actual
knowledge that the statements were made within federal jurisdiction. District court rejected D’s request and instructed jury
that P had to prove D knew or should have known that the info was to be submitted to a government agency. D was convicted
by jury. Court of Appeals reversed. SCOTUS granted review.
The culpability requirement attached to the elements of a criminal offense does not apply to the
jurisdictional language in the statute. It is not necessary that a person committing a criminal act know, at the time, that
the circumstances conferring jurisdiction according to the criminal statute are also present. A court must engage in careful
statutory interpretation to determine whether Congress intended culpability language to also modify jurisdictional language
in a statute. A court should look to the explicit text of the statute and a natural reading of the text. Here, the statutory
language requiring that false statements be made knowingly in any matter within the jurisdiction of a federal agency is a
jurisdictional requirement. The construction of the statute makes it apparent that Congress did not intend the words
“knowingly and willfully” to create a culpability threshold for the jurisdictional language. The jurisdictional terms appear
in a separate phrase from the forbidden conduct modified by “knowingly and willingly.” Any natural reading proves that
the culpability standard is only meant to operate on the making of false or dishonest statements. There is therefore no valid
reason for requiring proof that D had actual knowledge of federal agency jurisdiction over the crime.
Dissent (Rehnquist)
• Based on the text of the statute and the legislative history, Congress’s intention is unclear.
• The Court says “actual knowledge” is not the proper culpability standard but does not say which standard is
appropriate. (Rule of lenity should apply)
Yermian Handout
• To which elements does the MR apply?
o “Whoever, in any matter within the jurisdiction of any department or agency of the United States
knowingly and willfully…makes any false, fictitious, or fraudulent statements or representations…shall
be fined.”
§ MR = knowingly and willfully
- Appellate Court Interpretation = knowledge
o Is the italicized element material or jurisdictional?
§ If material, then P must prove BARD that D knew he was lying to the federal government.
§ If jurisdictional, the MR does not apply.
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•
Do not focus on the holding, but rather on the reasoning.
o Goal is not to learn the federal law re: false statements, but rather to learn the bigger principles.
o Think about the adversarial system and the parties’ interest in a particular outcome—what does P prefer
and why? (and vice versa for D).
• Analysis under MPC [See MPC § 2.02(4)]: MR applies to ALL material elements
o Is “matter within jurisdiction” a material element? NO.
o [See MPC § 1.13(1)] for material elements].
• Note: P will always want to prove fewer elements BARD, while D will want to make BOP higher w/ more
elements to prove
CONDITIONAL INTENT
Holloway v. United States (1999). D and his accomplice committed three car-jackings by going up to the driver of the
respective car w/ a gun and threatening to shoot unless the driver gave up the car. D never used the gun but did punch one
victim in the face when they resisted. D was charged w/ the federal crime of carjacking “w/ the intent to cause death or
serious bodily harm.” At trial, judge instructed jury to convict D if he had intent “to cause death or serious bodily harm” to
the driver if they had refused to give them their cars. Jury convicted D, who appealed to the court of appeals. Conviction
was affirmed and SCOTUS granted review. •••
When a statute contains an element of intent, an individual must have that requisite intent during the
commission of the crime/at the time of his actions in order to be convicted under the statute. An individual’s intent
can be conditional upon a future event, such as someone not complying w/ an aggressor’s orders, at the time of the
commission of the crime, and still fulfill the intent requirement of a statute. D had the requisite intent to cause death
or bodily harm on the drivers if such harm was necessary to obtain their cars. The intent and the action go hand in hand to
constitute the crime. While the statute states that the individual must have the intent to cause bodily harm or death upon the
driver, Congress did not intend this statute to only criminalize those car-jackings where the individual intended to cause
harm/death no matter what. The intent to cause death or bodily harm could be conditional upon the cooperation of the
individual whose car is being taken. Here, D did not intend to cause bodily harm or death no matter what; his intent to do
so was conditional upon the cooperation or lack thereof by the individuals whose cars were being taken. D’s actions
demonstrate this conditional intent: he never used his gun but did punch one victim in the face when they were
uncooperating. This shows D was willing to harm those who didn’t cooperate. Thus, D had the requisite intent under the
statute. Conviction upheld.
Dissent (Scalia)
• Intent should not be conditional upon different circumstances because intent is a state of mind rather than a state
of actions.
• Intent is a state of mind where someone seeks to accomplish something regardless of the circumstances around
him. To make intent conditional would be to change the definition of intent altogether.
• A carjacker may have the intent to kill the driver of a car who is uncooperative, but he does not go into the
carjacking w/ the intent to kill.
o He has the intent to take the car; thus, the statute as written is ambiguous because it does not state
specifically what intent is necessary to violate the statute.
o Ambiguous criminal statutes are unconstitutional on their face.
o Therefore, D cannot be found guilty, and his conviction should be overturned.
*HOLLOWAY: CONDITIONAL INTENT SHORTCUT
• What is the meaning of “intent?”
• Something akin to MPC purpose, goal
o But that is hard to prove, right?
o Enter the judge-made doctrine of “conditional intent” to make it easier: P must prove BARD that
D’s goal was to kill V if V resisted (this is the condition)
- Intent to kill OR conditional intent to kill is allowed
o That D was actually trying to prevent the harm that is criminalized in the statute (carjacking
example)
o Conditional intent shortcut only applies to murder
§ If we have D who is a carjacker doing everything that he can to make sure his crimes
are only property crimes and that he is not hurting people, then there may be a
conditional intent here that would NOT allow for the kind of reduction of intent
§ What if D said, I used a gun, but it was intentionally a non-functioning / unloaded gun
14
§
o
Trick w/ these things is trying to argue both sides—and how P would rebut the
argument
§ It is for the jury to decide if it NEGATIVES the intent (MPC) (the conditional intent)
Compare MPC conditional intent [See MPC § 2.02(6)].
§ “When a particular purpose is an element of an offense, the element is established
although such purpose is conditional, unless the condition negatives the harm or evil
sought to be prevented by the law defining the offense.”
§ The “unless” phrase is an additional constraint that limits the reach of the conditional
intent doctrine.
INTENT
The term “intent” has at least two different meanings:
• Sometimes used in a broad sense to refer to culpability generally (in this sense, intent means the kind of moral
blameworthiness that ought to make a person criminally responsible for his or her actions).
o When we use this broader meaning, we often seek to determine whether we, in the constraints of Western moral
culture, feel comfortable blaming D for what happened.
o This is a question of retribution: who deserves blame and punishment?
• More often, “intent” refers to the particular mental state provided for in the definition of the offense.
o Under common law, mental state of intent is defined in two ways:
(1) One acts w/ the requisite intent if it is his or her conscious object or purpose to cause a certain
result or to engage in certain prohibited conduct
(2) One intends a particular social harm if one knows to a virtual certainty that one’s actions will cause
that social harm
§ In sum, “intent” at common law is equated w/ either “conscious object” or “knowledge
to a virtual certainty”
o Under MPC, the term “purposely” reflects a mental state akin to the first common law definition of intent
(“conscious object”). [See MPC § 2.02(2)(a)]. The term “knowledge” reflects a mental state akin to, but not quite
the same as, the second common law definition of intent “knowledge to a virtual certainty”).
• Because of difficulties inherent in proving intent, courts have adopted “legal shortcuts” which allow the fact finder in a
murder case to infer an intent to kill when absolute proof of such intent is lacking. One such shortcut is the “natural and
probable consequences” doctrine explained in State v. Fugate.
State v. Fugate (1973). D, a 19-year-old, entered a commercial parking garage w/ a loaded shotgun. D intended to rob the
owner of the parking garage, who was 66 years old. D struck the owner two times w/ the barrel of the shotgun, causing
severe head wounds. D then ordered him into the basement of the garage, where he shot and killed him. D was convicted
of armed robbery and first-degree murder. D appealed, arguing that there was insufficient evidence to show that he intended
to kill the owner. ••• A criminal defendant’s intent to kill may be presumed if the natural and probable consequence
of his wrongful act is to cause death, as deduced from the surrounding circumstances. The element of intent may be
determined from the circumstances surrounding the crime and from the evidence developed during trial. Here, D’s intent
to kill may be presumed, b/c the natural and probable consequence of his wrongful actions toward the older man was to
cause his death. Jury considered the evidence and reasonably found that D purposely killed him. Affirmed.
*FUGATE: NATURAL AND PROBABLE CONSEQUENCES SHORTCUT
• Look at surrounding circumstances and try to draw conclusion as to what injuries a reasonable person
would conclude from those events
o A shortcut to proving intent; P can merely show that D intended the natural and probable
consequences of his actions
• D was convicted of first-degree murder for the brutal killing of V
o First-degree murder requires P to prove BARD that he intentionally killed V
• What about making P’s MR lift a little easier?
o Enter the “natural and probable consequences” doctrine
o A shortcut to proving D intended to kill V—P only has to prove that D did the act and that
V’s death was the natural and probable consequence of the act
o Makes it easier for P to prove MR BARD
§ Judge-made shortcuts favor the P
• Why is the doctrine troubling?
15
It converts D’s MR from subjective (did D intend to kill?) to objective (would a reasonable
person have known that V’s death would result from his conduct?)
§ Akin to the difference between MPC “purpose” and “recklessness”
§ This is why the MPC rejects the doctrine—MPC instead requires P to prove BARD
that it was D’s goal to kill V [See MPC § 2.02(a)(j)].
- Need conduct or such a result (i.e., actually beating V up, shooting him, or
causing his death)
- Part (ii): Attendant circumstances (sounds a lot more like natural and probable
consequences)
o One response to that critique is the common law limitation that the doctrine applies only to
“consequences” of D’s act that result in death (applies only in murder context)
Doctrine functions like conditional intent
o
•
KNOWLEDGE
Another MR term used in both common law and MPC jurisdictions is the mental state of knowledge.
• Under common law, a person knows of a fact if he “either is aware of that fact or correctly believes the fact exists.”
• Many jurisdictions recognize another way of proving knowledge: willful blindness or deliberate ignorance. Willful
blindness is discussed in U.S. v. Jewell.
o “Purpose” and “knowledge” get conjoined together in traditional common law but are differentiated under MPC
United States v. Jewell (1976). D was convicted of “knowingly” transporting 110 lbs. of marijuana in a secret compartment
between the trunk and the rear seat of an automobile, from Mexico into the U.S. At trial, D testified that he did not know
the drugs were there. Circumstantial evidence showed that D had knowledge of the drugs and was therefore lying.
Circumstantial evidence also showed that, although D knew of the secret compartment and that it likely contained
marijuana, he deliberately avoided positive knowledge of the presence of drugs in order to avoid responsibility in the event
he was caught. Trial judge refused D’s request to instruct jury that D must have had to “absolutely, positively” know
marijuana was in the car. D appealed his conviction. •••
“Knowingly” includes positive knowledge as well as a defendant’s awareness of the high probability of an
illegal act but purposely fails to investigate the presence of the illegal act in order to remain ignorant. The trial court
instructed the jury that D could have “knowingly” brought the marijuana into the U.S if P successfully showed that D
consciously chose not to learn the truth of what the vehicle was carrying. Traditionally, a deliberate ignorance of the truth
and having positive knowledge have been equally culpable. MPC § 2.02(7) states “when knowledge of the existence of a
particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its
existence, unless he actually believes that it does not exist.” Holding that “knowingly” requires positive knowledge would
make deliberate ignorance a defense. It is probable that many who carry drugs have no positive knowledge of the load they
carry. Here, D likely had some knowledge that he was probably transporting marijuana. Affirmed.
*JEWELL: WILLFUL BLINDNESS SHORTCUT
• Did D know that he was transporting drugs from Mexico into the U.S.?
o “Knowledge” akin to MPC definition: was D aware that drugs were hidden in the car?
• Again, it is not easy for P to prove BARD that he was aware of the drugs
o D might be sympathetic enough that the jury believes his claim that he was not aware
• The common law doctrine of willful blindness eases P’s burden
o Also called the doctrine of deliberate ignorance
o Also called the ostrich instruction b/c they put their heads in the sand
o Prof. Gomez made the point that then-Judge Kennedy and his colleagues dissented b/c the
willful blindness doctrine is too broad (goes too far in lowering P’s burden/lowers down closer
to “recklessness”)
• The MPC offers a narrower version of willful blindness [See MPC § 2.02(7)].
o “When knowledge of the existence of a particular fact is an element, such knowledge is
established if a person is aware of a high probability of its existence unless he actually
believes that [the fact] does not exist.”
o Examine the “unless” clause: if the jury thinks D honestly believes D was not aware of the fact
(here, that there were drugs in the car), then the doctrine is not applicable.
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o
o
Put another way: the MPC makes the doctrine a rebuttable presumption (meaning there is a
presumption favoring P, but D can rebut that by saying D affirmatively thought that was not
the case, because he did steps X, Y, Z [See U.S. v. Jewell].
Willful ignorance can suffice for requirement of knowledge
Gomez Criticism:
• This seems like a “reckless” definition, not “knowledge;” if legislature wants to change standard to
recklessness, they should do so.
Penal Purposes:
• Retributive: “just deserts” for choosing not to know; punished for that choice.
• Deterrence: we want to deter this type of willful ignorance and hold people liable.
TRANSFERRING INTENT (MR exception 1)
It is a basic principle of criminal law that an intent to do one thing (such as intending to steal rum) cannot be used as a substitute
for an intent to do another thing (such as intending to burn down a ship). [See Regina v. Faulkner].
• If the statute requires an intent to burn down a ship, then the government must prove that D’s “conscious object” or
“purpose” was to burn down the ship, or that D “knew to a virtual certainty” that his actions would cause the ship to burn
down.
o An intent to light a match in order to steal rum on a ship is a far cry from purposefully burning down a ship or
knowing that one’s actions will burn down the ship.
o Similarly, an intent to injure a person is not the same thing as an intent to damage property.
• Despite this basic principle, under both the common law and MPC, a shooter can be held criminally liable for
intentionally killing a person even if that other person was in fact an unintended victim.
o Ex. Imagine an individual attempts to shoot and kill one person (X), misses, and instead kills another person
(Y)—that individual can be held liable for intentionally murdering Y.
o We may transfer Ds intention to kill one person to the killing of another person even when that killing
was, in fact, unintentional.
§ We allow this shortcut for P to punish D for intentional homicide w/o having to prove BARD D’s
intentional MR.
§ Relatively “easy” transferred intent case: “bad aim” D.
- Even though killed Y accidentally, we allow P to “transfer” D’s intent to kill X to the killing
of Y.
- All states allow this kind of transferred intent.
- Note that Dressler says we don’t need transferred intent to get this result in most cases (just
apply the elements).
§ More complicated cases where the transferred intent “rubber band” is stretched
thin (examples below):
-
-
-
D intends to kill K, doesn’t kill K, but in the process of trying to kill K, kills a
bystander, L. What crimes is D liable for? [See People v. Scott].
o Without transferred intent:
§ D is guilty of attempted murder of K (requires intent)
§ D is guilty of some variety of accidental homicide of L
o With transferred intent:
§ D guilty of attempted murder of K in addition to intent-to-kill
murder of L
D kills V1, whom he intended to kill, and V2, whom he did not intend to kill.
[See People v. Birrueta]
o Without transferred intent:
§ D is guilty of one count of intent-to-kill murder of VI and is guilty
of some variety of accidental homicide of V2
o With transferred intent:
§ D is guilty of two counts of intent-to-kill murder
D intends to kill V1 who dies, but also injures V2, who doesn’t die [See People v.
Bland].
o Without transferred intent:
§ D is guilty of attempted murder of V1
17
§
-
•
•
D could be guilty of an aggravated assault type crime for injuring
V2 (depending on the facts)
§ D cannot be convicted of attempted murder of V2 (because it
requires intent to kill)
o With transferred intent:
§ Not applicable [See People v. Bland, CB 222].
D intends to kill V1 who dies, and gets recklessly close to killing V2
o With transferred intent:
§ D is only guilty of intent-to-kill murder of V1 (nothing for V2)
Why Transferred Intent: Put “bad aim” D in the same position which he would have found himself had he hit his
intended mark.
o Retributive: D just as bad of a person for killing someone
o Utilitarian: Want deterrence
MPC Approach: Because of the specific process of applying the MR to all “material” elements of the offense, the need
for transferred intent is avoided; we simply just ask: does the MR apply to all of the elements?
People v. Scott (1996). D1 and D2’s mother’s romantic relationship grew hostile, resulting in a physical altercation one
evening. D1 and D2 came to their mother’s aid and forced their mother’s partner from the apartment. A few days later, the
mother’s partner drove to a neighborhood park. D1 and D2 followed him into the park and sprayed the area w/ bullets from
an automatic weapon, intending to kill him. Instead, a bystander was killed, and several others were injured. Ds were
indicted for the murder of the bystander and attempted murder of the mother’s partner. Trial court instructed the jury on the
doctrine of “transferred intent” as applied to murder. Ds were convicted of second-degree murder and two counts of
attempted murder. Ds appealed, and court of appeals affirmed, rejecting Ds claim that transferred intent applies only if P
charges a D w/ first-degree murder of the unintended victim and cannot apply if a D is charged w/ attempted murder of the
intended victim.
The doctrine of transferred intent may be used to assign criminal liability to a D who kills an unintended
victim, even if the D is also prosecuted for the attempted murder of the intended victim. The doctrine provides that if
one attempts to kill an individual but, by mistake or inadvertence, kills a different person, the D may be charged w/ murder
as if the intended individual had been killed. Intent to kill the actual victim need not be required to sustain a murder
conviction. The doctrine does not denote an actual transfer of D’s intent from the intended victim to the unintended victim;
rather, it is a rule or policy providing that a D who shoots at an intended victim w/ an intent to kill, but who misses and kills
a bystander instead, should be subject to the same liability that would have been imposed had D been successful in killing
his intended victim. The doctrine is applicable even if a D is charged w/ murder of an unintended victim as well as attempted
murder of the intended victim.
•
Policy: D who shoots an innocent bystander should be subject to the same liability had he hit his intended
mark (social harm of murder is “the killing of a human being by another human being;” the requisite intent,
therefore, is the intent to kill a human being, not a specific human being)
SPECIFIC vs. GENERAL INTENT (MR exception 2)
The common law draws a distinction between specific intent and general intent crimes. Different legal rules apply dependent on
whether D is charged w/ a specific intent or general intent crime. To determine whether an offense is a specific intent or general
intent crime (and why it matters), see People v. Atkins. The dichotomy is essentially a “judge-made policy compromise” in the
common law whereby some Ds may make certain MR defenses, but others may not. *It has no analogue in the MPC. *
•
General Intent: Crimes that are those that only require proof D consciously (think voluntary act) committed the act that
constitutes the social harm. [only requires intent to commit act / conduct; does not have to intend resulting
consequences of conduct b/c the intent is in the conduct itself]
o For general intent crimes, D need not, however, intend the resulting consequences of her bad conduct. The social
harm is in the bad conduct itself.
o Easier to prove than specific intent crimes
§ Ex. of general intent crimes: assault, murder, battery, arson
•
Specific Intent: Crimes require proof of “a special MR element”—a MR element above and beyond any mental state
required w/ respect to the conduct / AR for the crime. [requires intent to commit act + intent to commit harm that
results from the act]
18
o
o
If crime requires proof, the actor’s purpose is to cause the social harm set out in the definition of the offense
§ Ex. of specific intent crimes: burglary, forgery, robbery, embezzlement
Specific intent crimes fall into three different categories of “special MR element:”
1. Intent to commit some future act/harm (e.g., possession w/ intent to distribute)
2. Special motive or purpose beyond the conduct or result that constitutes the AR of the offense (e.g.,
larceny only if D took someone else’s property with intent to permanently deprive owner of
property [vs. borrow it temporarily]).
3. Where awareness of a specific attendant circumstance (AC) must be proven (e.g., that victim is a
particular category of person, such as a federal agent; some extra component of the legislatively
defined crime that has to be proven BARD by P; knowingly making false statements to a federal
agent).
•
Why does the specific/general distinction matter? This common law distinction is relevant in connection w/ the
following three types of MR defenses.
o Mistakes of Fact and Law
o Intoxication (Atkins case; Ch. 10)
o Diminished Capacity (Ch. 10) [did not cover in class]
•
In MPC:
o General intent aligns w/ recklessness and negligence
o Specific intent aligns w/ knowledge and purpose
•
3 ways to determine if specific or general intent crime:
(1) General blameworthiness approach
§ If crime has any MR definition in statute, then it is specific intent
§ If crime has no MR terms, then it is general intent
(2) Categorical approach
§ “recklessness” or “negligent” = general intent
§ “purpose” or “knowledge” = specific intent
(3) Rule from Atkins
§ If definition of crime has some additional MR requirement beyond that attached to the AR itself =
specific intent
o i.e., more to cause the result than to do the action
§ Anything else = general intent
•
Penal purposes for MPC’s stance: small punishment makes sense if NO guilty mind
o Retributive: no guilty mind, suggests desert should not be as high
o Deterrence: hard to deter if you do not know your conduct is wrongful
o Incapacitation: if minor offense, not dangerous; no reason to incapacitate
People v. Atkins (2001). D told his friends that he was going to burn down the house of Figgs. The next day, a fire was
reported in the canyon where Figgs lived. A soil sample collected by the fire marshal revealed the presence of gasoline, and
Figgs wallet was found near the site where the fire had originated. When interviewed, D said he and his brother were
drinking at the canyon and that the area was overgrown w/ weeds, which he decided to burn w/ gasoline. They tried
unsuccessfully to extinguish the fire, panicked, and fled. D maintained that the fire was an accident but was subsequently
charged w/ arson of forest land. Trial court instructed jury that arson was a general-intent crime, and that voluntary
intoxication was no defense to arson. D was convicted and appealed, arguing that evidence of voluntary intoxication was
admissible to show that he lacked the necessary intent to commit the crime. The court of appeal found that arson required
a specific intent to set fire to or burn forest land, and that evidence of D’s voluntary intoxication should have been admitted.
The court of appeal reversed based on the trial court’s instruction that voluntary intoxication was not a defense to arson. •••
A criminal defendant may not introduce evidence of voluntary intoxication to negate the existence of general
criminal intent. Evidence of voluntary intoxication is only admissible to show whether a defendant had specific
criminal intent.
Reasoning
o Specific and general intent crimes are distinguishable.
o If a criminal statute does not refer to an intent to commit a further act in addition to the particular criminal act, the
crime is a general intent crime.
19
A general intent crime is committed when D intends to commit the criminal act but nothing more; it
requires only an intent to perform the act that causes the harm.
If a criminal statute refers to an intent to commit a further act or achieve an end beyond the particular criminal act,
the crime is a specific intent crime.
In essence, general intent only requires an intent to commit the act that causes the harm, while specific intent
requires an intent to commit the act and to cause the harm that results from the act.
o Here, D argues that arson is a specific intent crime, and that evidence of his voluntary intoxication
should have been admitted to show that he did not possess the requisite MR to commit the crime.
o The MR for arson is a general intent to cause a fire on forest land.
o The arson statute only requires intent to set the fire that results in the burning of forest land—not an
additional intent to burn the land.
o Because arson is not a specific intent crime, trial court was correct in instructing the jury that voluntary
intoxication is not a defense to arson.
o
o
o
Notes
•
•
•
•
Atkins explains the most common way common law courts distinguish between specific/general intent crimes.
In addition, a crime that requires a mental state of recklessness or negligence is generally regarded as a general
intent crime.
As Atkins suggests, the specific/general intent distinction evolved as a pragmatic strategy to deal w/ the problem
of the intoxicated offender.
o Over time, however, courts began to rely upon the distinction in other areas of criminal law.
o We will encounter it again when studying the law of mistake.
The MPC does not employ the specific/general intent distinction.
STRICT LIABILITY CRIMES (MR exception 3)
Some statutes do not include a mental state element. In such cases, the court must determine whether the legislature purposely left
out a mental state element because it wanted to treat the crime as one of strict liability (for which the gov. need not prove any
mental state) or whether the omission was inadvertent. In Morissette v. United States, SCOTUS explains that when a statute is
silent as to MR, the ordinary presumption is that a mental state is required for criminal liability. We see SCOTUS applying this
same principle in Commonwealth v. Barone.
• Strict liability is an exception to the requirement that all crimes must have a mental state / MR that must be proven BARD
by P.
• Under common law and MPC, mistake of fact is NEVER a defense if dealing w/ a strict liability crime (b/c no MR)
• Typically, these crimes have the following characteristics:
o Malum prohibitum (crimes simply because we made them crimes) rather than malum in se (crimes in and of
themselves)
§ Malum prohibitum: Not found in ancient text but crimes we decided needed to exist in complex,
populous, modern society; many of these are crimes that turn on omission (a particular failure to act)
§ Malum in se: Crimes recognized in morality (e.g., crimes we see in the Bible); crimes against person /
property / public morality; crimes that existed at common law, meaning, at the earliest age of U.S.
colonial America (an interpretation of what English law condemned)
o Did not exist in English common law at the founding of the U.S.
o Conviction results in light penalty and little stigma [See Commonwealth v. Barone: conviction reversed under
strict liability for a vehicular homicide-type statute].
• Justice Jackson in Morissette v. United States listed four contexts as having crimes ripe for strict liability:
1. Crimes at industrial workplaces where large numbers of workers’ lives could be at risk / put in danger (e.g.,
mining accidents)
2. Traffic regulations b/c of the increasing speed and popularity of cars
3. Crimes related to the health and welfare of those in cities / urban areas (“undreamed of in simpler times”)
4. Mass production and distribution of products (e.g., food and drug safety)
• How to determine whether or not “X” is a strict liability crime?
o Look to the statutory language—is there a MR element there or could one be read into it?
§ But remember that just because no MR element does not immediately mean it is strict liability; it could
be SL like statutory rape, but may not be, like forcible rape (where there is no MR term stated but it’s
still deemed a general intent crime).
o Look to the nature of the crime itself and whether it is in and of itself morally wrong or if it is a more recent
regulation w/ no basis in the common law (if long based in common law, less likely to be a SL crime)
o Is it low stigma? If so, more likely to be strict liability crime.
20
o
o
Is it low punishment? If so, more likely to be strict liability crime.
Are the collateral effects significant? If so, less likely to be strict liability crime.
Strict Liability Determination = 3 Categories
(1) Did the crime exist at common law? If so, then presumption is that the crime is a general intent crime (not SL).
• Goes back to malum in se/malum prohibitum dichotomy (crimes wrong in and of themselves vs. crimes that the
more modern law just decides are wrong)
i. Big exception to this distinction; if it was a crime and common law + a malum in se crime, would
generally be a general intent crime, BUT that is not true for statutory rape—statutory rape existed at
common law and is a malum in se crime, yet we decided historically that it is a strict liability crime
§ Half of the states treat statutory rape as a strict liability crime and half treat it as a
general intent crime (if general intent, treating it as a crime of “recklessness”
- This marks the difference between D being able to make the argument that
she was over the age of consent vs. P being able to exclude that argument
(2) Is the crime an especially new crime? (i.e., 20th century crime coming out of progressive movement)
• Work safety laws, post-WW2 set of crimes that were strict liability such as traffic violations, food and drug
safety, etc.
o If it is a crime that protects the public welfare, then it is probably will be OK that it is a strict liability
crime
(3) What are the consequences of conviction for the crime?
• Look to the consequences D will face—is it light punishment? Low stigma? Few collateral consequences?
o If yes, then probably will be ok to treat as a strict liability crime.
o If no, then we begin to say that this should probably be a general intent crime.
§ Collateral offenses examples: lifetime registration as a sex offender; inability to obtain
housing/employment/licensing; not able to be admitted to law school or pass the bar; etc.
à How to determine whether the crime w/ no MR fits into the general intent pile or strict liability pile?
• This is a subjective question, based on the appellate courts looking at all of the context.
• Instead of finding the right answer to this question, you should instead revel in the opportunity to show how D and P
might analyze that question differently
o D is likely to argue for a general intent crime and say he lacks the requisite MR
§ D always wants MR to be higher (wants general intent classification)
o P is likely to argue for a strict liability crime and say it doesn’t matter if he lacks the requisite MR
§ P always wants MR to be lower (wants strict liability classification)
***Presumption against strict liability crimes***
MPC APPROACH
• MPC dislikes strict liability crimes (also, legislature has to specifically call it a strict liability crime; if statute is
silent, MR is implied)
• MPC uses “absolute liability” instead of strict liability
o 2.02(3). Culpability Required Unless Otherwise Provided
§ MPC has default standard of at least recklessness
o
2.05. When Culpability Requirements Are Inapplicable to Violations and Offenses Defined by
Other Statutes; Effect of Absolute Liability in Reducing Grade of Offense to Violation.
(1) The requirements of culpability prescribed by Sections 2.01 and 2.02 do not apply to:
(a) offenses that constitute violations, unless the requirement involved is included in the
definition of the offense or the Court determines that its application is consistent w/
effective enforcement of the law defining the offense; or
(b) offenses defined by statutes other than the Code, insofar as a legislative purpose to
impose liability for such offenses or w/ respect to any material element thereof plainly
appears.
(2) Notwithstanding any other provisions of existing law and unless a subsequent statute otherwise
provides:
(a) when absolute liability is imposed w/ respect to any material element of an offense
defined by a statute other than the Code and a conviction is based upon such liability, the
offense constitutes a violation; and
21
(b) although absolute liability is imposed by law w/ respect to one or more of the material
elements of an offense defined by a statute other than the Code, the culpable commission
of the offense may be charged and proved, in which event negligence w/ respect to such
elements constitutes sufficient culpability and the classification of the offense and the
sentence that may be imposed therefor upon conviction and determined by Section 1.04
and Article 6 of the Code.
Morissette v. United States (1952). D, a scrap metal and junk dealer, entered an Air Force bombing range and took several
spent bomb casings that had been lying around for years, exposed to the weather and rusting. D subsequently flattened the
casings out and sold them. D was indicted for violating 18 U.S.C. § 641 which made it a crime to “knowingly convert”
government property. D admitted that he knew he was taking government property but honestly believed they abandoned
the casings. Trial judge rejected D’s defense and instructed the jury that “the question on intent is whether or not he intended
to take the property.” D was convicted and he appealed. Court of appeals affirmed, making the assumption that Congress
meant for the term “knowingly convert” to mean simply an intentional exercise of dominion over property not belonging
to the individual. SCOTUS granted review.
Acts which are bad in themselves, including larceny, require the element of MR and any similar strict
liability statute will not be construed as eliminating the MR element. The relationship between an intrinsically harmful
act and some mental element has given way to a legislative scheme creating absolute, or strict, liability to cover many public
welfare offenses. Public welfare laws require a person to exercise care, or not act, when a specific duty is imposed. Many
violations of these laws result in no direct/immediate injury to person/property but merely create the danger or probability
of it which the law seeks to minimize. As a result, regardless of the violator’s intent, the injury and consequences are the
same; even if a violator “did not mean to” violate the law, he can be found guilty. Thus, strict liability legislation does not
specify intent (MR) as a required element. At issue here is such a statute. However, stealing, larceny, and its variants were
among the earliest offenses known to the law that existed prior to enactment of the legislation and state courts have
consistently required intent in larceny-type offenses. Thus, congressional silence as to the mental element in this statute
will not be construed as eliminating that element from the crimes denounced. Here, trial judge wrongly instructed jury that
it was not allowed to consider D’s honest belief that he thought the casings were abandoned as a defense. Judgement of
conviction reversed.
Commonwealth v. Barone (1980). While driving to work on a clear and dry morning, D approached a stop sign located at
an intersection of a busy street. Traffic was heavy. As D crossed the intersection to turn left, a motorcycle struck the right
side of her vehicle, killing the operator. D was charged with a violation of the state’s motor vehicle code, which provided
that any person who unintentionally caused the death of another person while engaged in a violation of state law or
municipal ordinance during the operation of a vehicle was guilty of homicide by vehicle, a first-degree misdemeanor
punishable by up to 5 years imprisonment and a possible fine. D filed a motion to demurrer to the charge. Trial court granted
D’s motion, holding that the evidence was insufficient to be heard by a jury. Commonwealth appealed.
A state criminal law imposing a conviction for homicide and an unduly harsh sentence upon a defendant
for unintentionally causing the death of another during the commission of a violation of traffic laws shall not be
interpreted as a strict liability crime. The statute in question seemingly imposes strict liability homicide upon a D who
causes death of another during a traffic infraction, regardless of whether D acted reasonably or prudently. Traditionally,
statutes that use the term “homicide” require a showing of a voluntary act—whether intentional, knowing, reckless, or
negligent. However, the statute at issue states that an individual’s unintentional conduct can result in criminal liability.
Unintentional conduct is done w/o purpose or design. Thus, the statute is ambiguous on its face and the court must look to
legislative intent to determine whether lawmakers intended to fix accountability only on those who acted negligently. If the
law’s goal is to protect the public from improper or negligent driving, then no purpose is served by punishing a driver who
may have acted reasonably under the circumstances. The court surmises that the legislature did not intend to punish every
death caused by a violation of the traffic laws, but rather to impose liability only on those who grossly deviate from the
requisite standard of care. Here, the evidence clearly shows that D acted reasonably under the circumstances. Given that a
jury could not have found that D’s actions amounted to a gross deviation from the standard of care that a reasonable person
would observe in the same situation, no violation of the statute occurred. Thus, the trial court properly granted D’s motion
to demurrer the charge. Judgment affirmed.
22
Evolution of MR from Traditional Common Law to MPC
Conception of MR
Number of terms?
Who controlled the
definition?
Traditional Common
Law
Idea of moral fault
(“wicked”) – blunt type of
culpability assessment
Evolving Common Law
Increasingly defined via
specific terms – whether
defined in code by
legislature or common
law courts; over time, we
see more concrete,
specific definition;
refinement
Still many terms
Proliferation into dozens
of confusing terms
Trial judges (jury
instructions); think: TC in
Regina v. Cunningham
(“wickedness”)
Appellate judges (law, not
fact); think: the appellate
opinion in Cunningham
(“knowledge”)
Model Penal Code
(MPC)
Precisely defined terms in
§2.02
-recklessly
-negligently
-purposefully
-knowingly
Only 4 terms
ALI drafters, drawing on
common law mid-20th
century
MISTAKE AND IGNORANCE
MISTAKES AND IGNORANCE
Suppose D commits the prohibited act with some kind of belief that turns out to have been wrong. How the criminal law should
respond is the subject of this section. The law of mistake and ignorance can be very confusing, but you will not go wrong if you
remember one simple point: as a general rule, mistake is the flip side of MR. The main thing to keep in mind when considering
whether mistake or ignorance is a defense is what mental state the statute requires.
•
Thus, if one understands what mental state the statute requires, the question of whether D’s ignorance or mistaken belief
is a defense can usually be answered.
o This is another way of saying that mistake and ignorance are usually case-in-chief defenses; however, there are
some situations (both in common law and MPC-based penal codes) where D’s mistake of law is an affirmative
defense.
*Always start your analysis w/ a determination of whether you are working w/ a mistake of fact or mistake of law*
•
•
•
•
Since these “mistakes” are the flip side of MR, they are typically case-in-chief or failure-in-proof defenses, meaning that
they challenge P’s proof BARD—they raise a reasonable doubt.
To conclude that D has the right to make a mistake argument or to have a mistake considered does not mean D is going to
walk away w/o a conviction; it simply means that the jury / factfinder gets to decide the question.
It is crucial to know whether you are interpreting a penal code that primarily relies on the common law or one that relies
on the MPC when considering questions of mistake.
An honest mistake of fact or law is a defense when it negates a required mental element of the crime.
o
o
Common Law Approach: The common law approach to mistake and ignorance relies on the distinction
between specific intent and general intent crimes. It also incorporates a second distinction: between mistakes of
FACT and mistakes of LAW.
MPC Approach: The MPC does not observe the specific / general intent distinction, and its treatment of
mistake and fact and law focuses on the function of the mistake, not how the mistake is classified. [See MPC §
2.04. Ignorance or Mistake; pg. 960].
§ Under both common law and MPC, general rule re: mistakes of law is that “ignorance of the law is no
excuse.”
§ MPC does NOT distinguish between mistakes of law and mistakes of fact, but this distinction is
extremely important under the common law.
23
MISTAKES OF FACT
Mistake of fact under the common law is very much a MR approach (consistent w/ the MPC). The common law rules of mistakes
of fact turn/hinge on the distinction between specific intent and general intent crimes. Mistake of fact is a case-in-chief defense
(b/c it pokes a hole in the MR requirement that P has to prove; NOT an affirmative defense).
• If one is charged with a specific intent crime, an honest (subjective) mistake that negates the specific intent required for
commission of the offense is a complete defense.
o The mistake need not be reasonable as long as it is in good faith.
o Specific intent is preferred by D because it’s a lower hurdle to poke a hole in / lower hurdle for alleging mistake
(hurdle is only subjective)
• If one is charged with a general intent crime, a mistake of fact that negates an element of the crime must be both honest
(subjective) and reasonable (objective) to exculpate.
o General intent is preferred by P because it’s an easier bar
• A minority of common law jurisdictions subject the general intent D’s mistake of fact claim to even further scrutiny,
employing either a moral wrong or legal wrong test. [See Bell v. State for explanation of these doctrines].
§ Both the moral wrong and legal wrong doctrines are out of favor
• See People v. Navarro for a clear explanation of the common law rules for mistakes of fact.
• See Bell v. State for an examination on whether a state legislature can, consistent w/ due process, preclude a “mistake of
age” defense to a charge of promoting prostitution in the first degree.
• Mistakes of fact tend to be mistakes about “attendant circumstances” or one of the less important elements than the
conduct
People v. Navarro (1979). D took four wooden beams from a construction site and was convicted of petty theft. The
relevant statute states that anyone who steals another person’s property w/ a felonious motive is guilty of theft. At trial, D
proposed jury instructions stating that if he took the wooden beams w/ the good faith belief that they were abandoned or
that he had permission to take them, he was not guilty of theft, even if his good faith belief was unreasonable. The court
instead instructed the jury that if D took the beams w/ the good faith belief that they were abandoned or that he had
permission to take them, he was not guilty of theft so long as his good faith belief was reasonable.
An honest mistake of fact is a defense to a specific intent crime regardless of whether the mistake was
unreasonable. Specific intent crimes require a person to possess a particularized mental intent. If, due to one’s honest
mistake of fact, a person is incapable of possessing a specified mental intent, that person cannot be guilty of that crime.
This is the case even if D’s mistake of fact is unreasonable, so long as D is sincere in his mistake. This is distinct from
general intent crimes, where a specific mental intent is unnecessary. In those situations, the mistake of fact must also be
reasonable. Here, D is accused of the crime of theft (a specific intent crime). It requires D to possess the felonious intent to
steal another’s property. In order to possess a felonious intent to steal, D must have known that what he was taking was not
his to take. If for any reason, D truly believed the beams were abandoned or that he had permission to take them, he did not
possess the requisite felonious intent. At trial, judge instructed jury that D’s mistake of fact could exonerate him only if his
belief was both honest and reasonable; this was in error. If D in good faith believed the beams were his, regardless of
whether that belief was reasonable, he was incapable of formulating the specific intent required for the crime of theft. Since
an essential element of the crime is not established, D cannot be guilty. Reversed.
Bell v. State (1983). D procured three teenage girls to use as prostitutes. P charged him w/ promoting prostitution in the
first degree because one of the girls was under 16. Trial court refused to instruct the jury on a reasonable-mistake-of-age
defense and convicted him. D appealed, arguing that the statute violated due process by allowing conviction w/o proof of
requisite criminal intent. Mistake of age is not a defense to crimes considered condemnable regardless of the victim’s
age. Alaska criminal code shows the legislature clearly considered procuring a person under 16 to prostitute a form of
aggravated prostitution. The code commentary explains that by precluding the defense of mistake of age, the legislature
intended to create strict liability as to that element. The code specifically states that no culpable mental state is required if
intent to dispense with it clearly appears in the statute. Alaska cases also recognize that committing a crime malum in se
(meaning reasonable members of the community consider it condemnable) necessarily involves awareness of wrongdoing.
That comports w/ the common law principle that mistake is no defense to acts considered illegal, even if the facts were as
the actor understood them.
The MPC also increases prostitution from a misdemeanor to a felony if “the actor promotes prostitution of a child
under 16, whether or not he is aware of the child’s age. Conviction does require showing intent to the acts prohibited by
law, and the accused must have been aware of his wrongdoing. But a person is aware of wrongdoing if he or she intentionally
acts in a way condemned by society, regardless of whether that person is aware of the law itself. Here, Bell’s awareness
that he was procuring women to engage in prostitution satisfies the only intent required. That is illegal regardless of the
victim’s age, so it satisfies the MR. Trial judge properly instructed jury that it had to find D engaged in conduct specifically
24
intended to induce the victim to engage in prostitution to convict; it did not require D to know the victim’s age. Prostitution
is considered condemnable, or malum in se, regardless of the victim’s age. Whether reasonable mistake of age is allowed
as a defense to statutory rape is easily distinguishable from the present issue. The elements of statutory rape are not criminal
if the victim is over 16. Here, Bell was necessarily guilty of promoting prostitution even if the victims had all been over 16.
Because intent to procure someone to prostitute thus satisfies the minimal constitutional criminal intent requirement, the
statute does not violate due process, and the court accordingly affirms rejection of the defense.
Specific Intent
General Intent
Strict Liability
Crime
Crime
Crime
Is mistake of fact a defense? It depends.
For General Intent crimes, only an "honest
and reasonable" mistake of fact may be a
defense.
For Specific Intent crimes, a mistake of fact
only need be "honest" to be a defense.
Mistake of fact may
never be a
defense.*
MPC §2.04(1)
Ignorance or mistake as to a matter of fact...
is a defense if the ignorance or mistake negatives
the purpose, knowledge, belief, recklessness or negligence
required to establish a material element of the offense.
Highest hurdle for P = specific intent. Lowest hurdle for P = strict liability.
MISTAKES OF LAW
Under both common law and the MPC, the general rule regarding mistakes of law is that ignorance of the law is no excuse
(mistake of law is quite stingy in terms of the exceptions to ignorance of the law is no excuse)
• Except in certain limited circumstances described below, a person cannot defend against a crime by claiming that he did
not know what he was doing was unlawful.
• There are three exceptions to the general rule that ignorance of the law is no excuse:
(1) A person who reasonably relies on an official interpretation of the law that turns out to be erroneous can be
exonerated (this defense is often called “official interpretation of the law” and is also known as “entrapment
by estoppel.”
(2) Ignorance of the law can be a defense to a crime if knowledge that the prohibited conduct is unlawful is an
element of the crime.
o In such a case, D’s lack of knowledge will negate the MR required for commission of the
offense.
(3) SCOTUS has held that under limited circumstances, the prosecution of a person who lacks fair notice of a
legal duty imposed by law can violate due process.
•
MPC says ignorance of the law is no defense (so same basic adoption of the general common law rule)
o MPC §2.04(2): general mistake exception; a mistake is a defense when it negatives the MR; MPC does not care
if it is a mistake of law or fact.
1.
OFFICIAL INTERPRETATION OF THE LAW [exception 1]
25
Many jurisdictions recognize an affirmative defense (to be proven by a preponderance of the evidence by D) called
“official interpretation of the law” for Ds who violate the law because they reasonably relied upon an official
interpretation of a law set forth in either a statute or a judicial ruling. [This is consistent w/ the MPC; see MPC §
2.04].
The official interpretation of the law defense has four basic components / elements. The D must have:
(1) reasonably relied on (objective component);
(2) an official interpretation of the law;
§ D’s own interpretation of the law is NEVER official [See People v. Marrero].
§ What makes it official? The interpretation was provided by someone w/ the authority to interpret,
administer, or enforce the law.
§ D will always try and argue that the interpretation was indeed official, while P will always try and
argue that it was not.
(3) later determined to be erroneous; and
(4) contained in a statute or other enactment obtained from a person or public body with responsibility for the
interpretation, administration, or enforcement of the law defining the offense.
•
See People v. Marrero for a discussion of the requirements of this defense under NY law. The MPC also recognizes this
affirmative defense in MPC § 2.04(3) & (4) [See pg. 960]
People v. Marrero (1987). D, a federal corrections officer, was arrested at a NY social club for unlicensed possession of a
loaded .38 caliber pistol in violation of state law. The penal law expressly exempted “peace officers” from the statute. The
term “peace officers” was defined by the statute to include “correction officers of any state correctional facility or of any
penal correctional institution.” D’s pretrial motion to dismiss was granted by trial court on the grounds that he was a “peace
officer” as defined under the law. The appellate division reversed and reinstated the indictment, holding that D was not a
“peace officer” within the meaning of the exemption. D was tried by a jury and found guilty. Trial court rejected D’s request
for a jury instruction that would have allowed jurors to consider his reasonable belief that the statutory exemption for peace
officers applied to him as a defense. Appellate division affirmed the conviction and D appealed.
One who violates a statute may not raise a good faith mistaken belief as to the meaning of the law as a
defense. Drafters of NY’s law rejected a mistake of law defense in its penal law, which states “a person is not relieved of
criminal liability for conduct because he engaged in such conduct under a mistaken belief that it does not, as a matter of
law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a
statute…(d) an interpretation of the statute…” D argues that his mistaken belief about his conduct was founded upon an
“official statement” of the law contained in the statute itself. D argues that his mistaken interpretation was reasonable in
view of the ambiguous wording of the “peace officer” exemption and that his “reasonable” interpretation of an “official
statement” is sufficient to satisfy the requirements of the statute.
P argues that D cannot claim a mistake of law under the exemption by simply misconstruing the meaning of the
statute, but rather, must establish that the statute relied on actually permitted his conduct and was only later found to be
erroneous or invalid. Citizens should be encouraged to read and rely on official statements of the law and not to have
individuals personally question the validity and interpretation of the law and act on that basis. If the statute was later held
to be invalid, a person who mistakenly relied on the authorizing statute would be relieved of criminal liability. If the court
accepted D’s argument, mistakes about the law would be encouraged. There would be an indefinite number of mistake of
law defenses which could be devised from a good-faith, perhaps reasonable but mistaken, interpretation of criminal statutes.
Such would not serve the ends of justice. (D’s own interpretation of the law is never official).
Dissent
• The maxim that “ignorance of the law is no excuse” is antiquated and does not fit with the modern deluge
of laws enacted by various legislatures.
• Here, it is difficult to envision a case more squarely within the meaning of § 15.20(2)(a).
o Marrero’s mistaken belief that, as a federal corrections officer, he could legally carry a loaded
weapon without a license was based on the “peace officer” provision to include those
corrections officers “of any penal correctional institution.”
o Marrero’s mistaken belief, based in good faith, is precisely the “mistaken belief” founded upon
an “official statement” of the law in a statute.
• The majority construes § 15.20(2)(a) as requiring a defendant to show the statute permitted his conduct, not
merely that the defendant believed that it did. Such an interpretation by the majority essentially rules out
any defense based on mistake of law and defeats the only possible purpose for the statute’s enactment.
26
o
Broader Policy Concerns: We conceive of the legislative branch as writing the law and the judicial
branch as interpreting the law and according to the dissent, it seems that the majority is actually
writing the law.
Policy // Reason Behind Rule
• Oliver Wendell Holmes noted, “[I]t is no doubt true that there are many cases in which the criminal could
not have known that he was breaking the law, but to admit the excuse at all would be to encourage
ignorance where the lawmaker has determined to make men know and obey, and justice to the individual is
rightly outweighed by the larger interests on the other side of the scales.”
o Reason behind common law maxim of “ignorance of the law is no excuse” is essentially to
encourage societal benefit of the individual’s knowledge and respect for the law.
United States v. Clegg (1988). D, a teacher at an American school in Pakistan, was charged w/ exporting firearms in
violation of federal law. During pretrial proceedings, D requested that the federal government produce documentary
evidence that D claimed authorized his conduct, namely the smuggling of weapons through Pakistan to Afghan rebels so
that the rebels could resist Soviet occupation of their country. D alleged that the documents would show that two highranking U.S. Army officers assisted D in contacting the rebels, obtaining weapons and ammunition, and planning a large,
secret arms shipment that never took place. D was eventually arrested in Pakistan, imprisoned, and subsequently released
to U.S. officials who transported him back to the U.S. for prosecution. District court held that the documents were material
and discoverable. Court of appeals affirmed district court’s judgment. On remand, D gave notice that he intended to use the
documentary evidence, both classified and unclassified, in claiming that he mistakenly acted in good-faith reliance on the
military officials’ representations authorizing his actions. District court held that the documentation was admissible;
government appealed.
A defendant may raise mistake of law as a defense if the defendant relied in good faith on the representations
of federal military officials authorizing the exportation of firearms, despite those actions being a violation of federal
law. In U.S. v. Tallmadge, the court entertained a similar case involving a D charged with violating a federal law that
prohibits a convicted felon from receiving a firearm. D raised a mistake-of-law defense on the ground that his state felony
conviction had been reduced to a misdemeanor, and after disclosing that info to a licensed firearm dealer, the dealer
nonetheless sold D a firearm. The court exonerated D in part because a firearm dealer is required by the U.S. Dept. of
Treasury to collect certain info from customers purchasing firearms. Thus, the court concluded that the licensed firearms
dealer was a de facto federal agent, and D had a right to rely on the representations of the dealer who should have known
the federal law governing ownership of a firearm. Similarly, here, D dealt w/ high-ranking military officials who encouraged
and assisted D in exporting arms to Afghan rebels, despite that conduct being a violation of federal law. Like in Tallmadge,
D’s good-faith reliance on the mistaken representations of the government officials may serve as a defense to the charges
against D. Judgment of district court is affirmed.
Dissent
• Generally, ignorance of the law or a mistake as to the law’s requirements is not a defense in a criminal
prosecution.
• An exception has been created for a defendant’s legitimate reliance on an official interpretation of the law.
• In Tallmadge, the defendant relied on the firearm dealer’s interpretation of federal law as not being
applicable to an individual whose felony conviction was reduced to a misdemeanor.
• Unlike in Tallmadge, D did not rely on an interpretation of federal law by military officials. The military
officers never authorized D’s unlawful conduct nor informed D that his activities were lawful.
State v. Fridley (1983). During a traffic stop for speeding, police officers conducted a routine check of D’s driver’s license
and learned that it had been revoked. D was arrested and charged w/ driving w/ a revoked license, a class B misdemeanor
and strict-liability offense. Prior to trial, P filed a motion in limine to prevent D from introducing evidence at trial re: his
telephone conversation w/ a driver’s license division employee named Debbie. During a hearing on the motion, D testified
that Debbie told him that in order to obtain a work permit to drive, D was required to take the driver’s test and forward the
appropriate documentation/payment to the division. D further testified that Debbie told him that while the paperwork was
being processed, D would be w/o a license for 7 days. D stated that he interpreted the conversation to mean that he was
permitted to drive in the interim. D argued that he intended to introduce the evidence of his conversation w/ Debbie to raise
a mistake-of-law defense at trial. The trial court granted P’s motion, denying D’s request to introduce the evidence. Trial
court held that the statements made by Debbie would be hearsay and did not qualify as an official interpretation of the law
defining driving while one’s license is revoked. Trial court also denied D’s request for a jury instruction on his mistake-oflaw defense. D was convicted and he appealed.
27
The defense of excuse based upon mistake of law is not applicable to a strict liability offense for which proof
of culpability is not required. Generally, a mistake of law defense may be raised by a D if there is sufficient proof that he
acted on a good-faith belief that his conduct did not constitute a crime according to an official interpretation of the law
given by a public servant charged w/ enforcing the law. However, state law provides that the mistake-of-law defense does
not apply to criminal violations for which proof of culpability is not required (i.e., strict liability crimes). The state statute
governing driving w/ a revoked license states that a person is guilty of the misdemeanor if he drives a vehicle on a public
road at a time when his DL or privilege to do so is suspended or revoked. The law contains no mental-culpability
requirement. Consequently, the trial court correctly held that D was not entitled to a jury instruction re: a mistake-of-law
defense. Judgment affirmed.
2.
IGNORANCE OR MISTAKE THAT NEGATES THE MENS REA [exception 2]
If one is charged with an offense and knowledge that the prohibited conduct is unlawful is an element of that offense,
then one can argue that one’s lack of knowledge as to the unlawfulness of one’s conduct negates an essential element
of the crime. This type of mistake is a complete defense. In Cheek v. United States and Bryan v. United States,
SCOTUS discusses and explains this type of mistake of law defense.
• Why would D raise this claim and why would P oppose it?
o Not knowing what they did was wrong or illegal means ppl shouldn’t be punished
§
o P – we punish for actiosn ppl cause, intention does matter but still gonna hurt ppl for hurting others
§ P wants fewer elements
§ Lower MR
§ D pushing. For P burden of BARD to be as high as possible
Cheek v. United States (1991). D was involved w/ an anti-tax advocacy group that claimed federal tax laws were
unconstitutional. Based on the group’s advice, D stopped filing federal tax returns. D was charged w/ several counts of
willfully failing to file a federal income tax return for a number of years in violation of 26 U.S.C. §§ 7201 and 7203(1),
which are specific intent crimes. At trial, D’s defense rested on his sincerely held belief that he owed no taxes on his wages.
Trial judge instructed jury that “an honest but unreasonable belief is not a defense and does not negate willfulness.” Jury
was also instructed that a “persistent refusal to acknowledge the law does not constitute a good faith misunderstanding of
the law.” D was convicted, and he appealed. Court of appeals affirmed, and SCOTUS granted review. Whether a
purportedly good faith misunderstanding of the law will negate the specific intent requirement of willfulness under
criminal tax laws is a question of fact for the jury; there is no legal requirement that the belief be objectively
reasonable. There is no requirement that a good-faith mistake about federal tax laws be objectively reasonable to
negate the willfulness requirement (as this would convert the issue into a question of law).
Ignorance or a mistake of the law is generally no defense to criminal prosecution. The complexity of federal tax
regulations has made it difficult for average citizens to keep up. Consequently, Congress has made specific intent to violate
the law an element of criminal offenses. A D will satisfy the willfulness requirement if she made a “voluntary, intentional
violation of a known legal duty.” This means D must (1) know about the duty; and (2) purposely violate it. A jury is less
likely to find that D was unaware of a duty if the belief is outrageous or unreasonable.
Here, D argues that his good faith belief that the federal tax laws were unconstitutional negates the willfulness
requirement needed for a criminal conviction, but such a finding is completely inappropriate here. D knew about the duty
and ignored his obligation. The purpose of the specific intent requirement was to ensure that taxpayers who attempted to
comply w/ the tax code would not be convicted of crimes for innocent mistakes—not to allow taxpayers to ignore known
duties imposed by the tax code. D was free to challenge the law, but he chose not to file tax returns instead. A trial judge
may instruct a jury that it should not consider claims like D’s that the tax code is unconstitutional. D’s belief that wages did
not constitute income and that he was not a taxpayer should have been put to the jury. The judgment of conviction is vacated
and the matter is remanded. [On retrial, jury was instructed to consider “whether D’s stated belief about the tax statute was
reasonable as a factor in deciding whether he held that belief in good faith].
Bryan v. United States (1998). D was convicted of “willfully” selling firearms in violation of various federal firearms
statutes. D had individuals go purchase firearms for him in Ohio and bring them back to NY, where he filed off the serial
numbers and sold them. D claimed that he could not be convicted of “willfully” selling the firearms as prohibited by the
statute because he did not know of the specific legislation for the federal licensing of firearms dealers. D petitioned
SCOTUS to overturn his conviction on this count because he believed he did not “willfully” sell the firearms as required
by the statute. An individual “willfully” commits a crime if he acts w/ the knowledge that his actions are unlawful.
An individual can be convicted of “willfully” selling firearms as prohibited by federal statutes even where there is
28
no evidence of his knowledge of the federal licensing requirement delineated in the statute. To fulfill the MR for a
crime w/ a “willful” requirement, the individual must have “acted w/ knowledge that his conduct was unlawful.” Except
for certain tax statutes, this does not mean that the individual had to be aware of the specific law that he is breaking in order
to have done so willfully. Here, the statute at issue is not a tax statute, and D knew what he was doing was wrong/against
the law, no matter which subsection of the statute it was against. Ignorance of the law is almost never a valid defense to the
commission of a crime or tort. Thus, D’s conviction for “willfully” selling firearms is upheld.
Dissent (Scalia)
• The statute and its MR requirement are ambiguous and thus generally unenforceable.
• The word “willfully” has so many different interpretations under the law that it has caused problems with
many different statutes and different federal convictions.
• Each statute should state whether ignorance of the law is a defense, and until that happens, the arbitrary
words used for MR requirements, such as “willfully” and “knowingly,” will continue to cause problems in
the judicial system.
• Therefore, Congress should work on adapting the MR requirements contained within statutes to be more
uniform and easily interpreted.
Common Law Mistakes—Review
1. First question you ask: is this a mistake of fact or mistake of law?
a. Approach to mistake of fact is very much a MR inquiry under the common law (consistent w/ MPC)
i. Under common law, mistake of fact hinges on whether you are working w/ a general or specific
intent crime
§ General intent crime = belief must be both honest + reasonable
§ Specific intent crime = belief must be honest (reasonableness not required)
- Specific intent is preferred by D because lesser burden
- Specific intent is disliked by P because general intent is an easier bar (if crime
specific, then lower hurdle for D alleging mistake; hurdle is only subjective)
ii. Under common law, mistake of fact is a chief defense b/c it pokes holes in what P has to prove
b. Approach to mistake of law is quite stingy in terms of exceptions to “ignorance of the law is no excuse”
i. General rule is that ignorance of the law is no defense; but there are 3 exceptions
§ Official interpretation
§ When mistake negates the MR (when knowledge is an element of the offense)
§ When to say otherwise would violate D’s due process
c. But what if it is a strict liability crime?
i. Under MPC and common law, mistake of fact does not matter b/c strict liability crimes have no
MR requirement
ii. Under common law, mistake of law is an affirmative defense to be proved by POE standard by
D
CAUSATION AND CONCURRENCE
CAUSATION
Causation is sometimes thought of as the “third” basic element of a crime, but a better way to think about it is as a component of
the actus reus requirement. Actus reus consists of: (1) a voluntary act (or omission when D has a legal duty to act); (2) that causes;
(3) the social harm. Due to the higher stakes in criminal law, and its especially strong commitment to personal rather than
vicarious responsibility, some courts expressly provide that a tort conception of causation is insufficient to impose criminal
responsibility. Instead, a stricter test requiring a closer connection between D’s conduct and the resulting harm may be applied.
•
Two types of causation must be proven to establish criminal liability: (1) D’s conduct must be an actual or but for cause
of the social harm; and (2) D’s conduct must be the proximate or legal cause of the social harm.
As mentioned prior, there are crimes that contain a separate social harm/result element and crimes that have no separate
result/social harm element (b/c the legislature has decided that the social harm of that crime is implied/included in the very
conduct). Whenever there is a separate social harm/result element, there is a causation issue.
•
Causation is what connects D’s conduct [AR] to the social harm/result.
29
•
All homicide crimes have a separate social harm/result element (result = victim’s death), and thus causation is going to
be an element only for homicide in our class (but in most homicide cases, there is not even a causation issue).
TWO-PART CAUSATION ANALYSIS
1.
ACTUAL (OR “BUT FOR”) CAUSATION
The first inquiry a court makes is whether D’s conduct is an actual cause (aka cause-in-fact or “but for” cause) of the
social harm. While many different factors may have caused the social harm, the actual cause inquiry determines
whether D’s voluntary act or omission is one of those causal factors. It does not show that D is the primary cause of
the social harm, but merely narrows down the field of actors who may be held criminally liable for the social harm.
• To determine whether D is an actual cause of the social harm, courts apply the “but for” test; the court
asks: “but for D’s conduct/voluntary act (or omission where D had a duty to act), would the social
harm/result have occurred when it did?
o If the answer is “NO,” (i.e., without D’s conduct, the social harm would not have occurred
when it did), then D is an actual cause.
o If the answer is “YES,” (i.e., without D’s conduct, the social harm would still have occurred
when it did), then D is not an actual cause.
2.
•
•
•
PROXIMATE CAUSATION
The second inquiry a court makes is whether D was the proximate cause (aka legal cause) of the social harm. D
must be both an actual cause and the proximate cause— (and perform a voluntary act [AR] with the requisite MR)—
in order to be held criminally liable. Proximate cause is a fact-dependent/context-based question for the jury.
• The proximate cause inquiry is an examination into whether it is fair and just to hold D criminally liable.
No hard and fast rules govern this inquiry.
o Generally, when D’s conduct is the direct cause of the social harm/result (i.e., when there are
NO intervening causes/other causes of the harm), courts tend to find that it is fair and just to
hold D criminally liable for the resulting harm.
o But when intervening causes (i.e., acts or events that come after D’s act, but before the social
harm, and which also causally contribute to the social harm) are present, many courts apply
intervening cause analysis to determine whether to hold D liable.
- If there are intervening causes, D is not the “direct cause.”
• Intervening cause analysis differs depending on whether the intervening cause is characterized as a
dependent (or responsive) intervening cause or an independent (or coincidental) intervening cause.
o Dependent Intervening Cause: One that is dependent upon or responsive to D’s voluntary
act/omission; they flow out from/respond to D’s conduct [AR].
- If dependent, general rule is that D is the proximate cause unless the intervening
cause is extremely unusual or bizarre.
o Independent Intervening Cause: One that is independent or coincidental to D’s voluntary act
[AR].
- If independent, D is generally relieved of criminal liability (that is, not the proximate
cause) unless the intervening cause is foreseeable.
When courts are uncomfortable w/ the result obtained through intervening cause analysis, they may rely on other factors
when determining whether to hold D criminally liable as the proximate cause.
The decision to attach causal responsibility for social harm to one factor rather than another is made in a commonsense
manner or by application of moral intuitions, public policy considerations, and/or a sense of justice.
Proximate cause is a potential source of strength for D if he/she can successfully raise a reasonable doubt re: causation.
o P wants to say that there was actual + proximate cause (but all D needs to do is raise reasonable doubt about 1).
o P will argue that there was a dependent cause that was not too unusual or bizarre OR that there was an
independent cause that was foreseeable.
o D will argue the opposite: either that there was a dependent cause that was too unusual or bizarre OR that there
was an independent cause which was not foreseeable.
State v. Govan (1987). D moved into a home with a woman and her teenage daughter. D and the woman had a tumultuous
relationship and regularly argued. At one point, the woman accused D of molesting her daughter and fired a handgun at
him. After the woman missed, D left and returned w/ another handgun. The woman was attempting to call the police when
D shot her in the neck, paralyzing her from the neck down. D insisted that he did not intend to shoot her. During her
30
hospitalization, D and the woman reconciled and eventually married. 5 years later, the woman contracted pneumonia while
still paralyzed, but did not seek medical treatment for 2 weeks despite knowing that she was ill. She had been suffering
from extreme pain due to the quadriplegia and eventually died from pneumonia. D was indicted for second-degree murder.
At trial, two physicians testified that the woman’s death was caused by pneumonia stemming from the quadriplegia, which
was in turn caused by the gunshot wound fired by D. D was convicted of the lesser-included offense of manslaughter. D
filed a motion for judgment of acquittal, arguing that there was insufficient evidence to show that his gunshot caused the
woman’s paralysis and subsequent death. Trial court denied D’s motion; D appealed, arguing that the woman broke the
chain of causation by giving up her will to live.
A defendant may be held criminally liable for an illegal act that results in a victim’s injury or death if his
conduct is the proximate cause of injury or death. D’s conduct is not the proximate cause of death if the chain of natural
cause and effect is nonexistent due to an unforeseeable intervening act. Although the victim may break the chain of
causation by voluntarily harming herself, D’s conduct is still regarded as the proximate cause of injury if the victim harms
herself because of D’s illegal conduct. Here, D claims that his illegal conduct in firing the handgun at the woman did not
cause her death from pneumonia. Certainly, if an unforeseeable intervening act broke the chain of causation, D’s conduct
would not be a proximate cause of her death. However, there was overwhelming evidence produced at trial that her gunshot
wound resulted in her quadriplegia, and two physicians testified that her paralysis caused her to contract pneumonia, leading
to her subsequent death. D also claims that the woman harmed herself by giving up her will to live, b/c she was in significant
pain and did not seek medical treatment for 2 weeks despite knowing that she was ill. However, she would not have suffered
pain from her paralysis if not for the gunshot wound inflicted by D. Therefore, the woman did not break the chain of
causation by failing to seek medical treatment. Because D’s conduct is the proximate cause of her death, he may be held
criminally liable for her death. Judgment affirmed.
Henderson v. Kibbe (1977). D and his co-D saw Stafford at a bar, intoxicated and displaying money. Ds agreed to give
Stafford a ride and decided to rob him. D slapped Stafford, took his money, made him lower his pants and remove his boots.
Ds abandoned Stafford on a dark road in the snow, without his coat, shoes, and glasses, where he got hit and killed by a
speeding truck. The driver testified that he was traveling 10 miles over the speed limit and did not understand warnings
about Stafford from other cars. The driver saw Stafford in the road but did not swerve or stop before hitting him. D and his
co-D were convicted under NY penal law, which provides that a person is guilty of second-degree murder when “under
circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk
of death to another person, and thereby causes the death of another person.” No jury instruction on causation was requested
by either party, and none was given. Instead, trial judge defined “recklessly” as being aware of and consciously disregarding
a substantial and unjustifiable risk that a certain result will occur. NY Court of Appeals affirmed the conviction, stating that
it only must be shown that the ultimate harm is something that should have been foreseen. The court did not address D’s
claim of inadequate jury instructions, because the issue was not raised in the trial court. D then filed a writ of habeas corpus
in federal district court, which was rejected. The U.S. Court of Appeals reversed, finding that failure to instruct on causation
created an impermissible risk that the jury did not make the required finding of causation beyond a reasonable doubt.
The definition of “recklessness” includes a causation element. Because a determination of recklessness
includes a conclusion that a defendant was “aware of and consciously disregarded a substantial risk,” it necessarily
includes a finding that the defendant foresaw the ultimate harm that the risk presented and therefore caused the
result. To determine whether a jury instruction was erroneous, the given instruction must be compared to the one that
should’ve been given. D’s claim of prejudice is based on the failure to give an explanation of the “causation” statutory
language. The court of appeals found it sufficient that the ultimate harm was foreseeable, whether it was Stafford’s death
or Stafford’s death by speeding truck. A causation instruction would have properly expressed that if the ultimate harm
should have been foreseen as reasonably related to D’s conduct, that conduct should be considered the cause of Stafford’s
death.
By returning a guilty verdict of a crime w/ a culpable mental state of “recklessness,” the jury necessarily found, in
coordination w/ that definition, that D was “aware of and consciously disregarded a substantial and unjustifiable risk” that
death would occur. Jury’s determination that D acted recklessly inescapably included finding that the ultimate harm was
foreseeable and therefore, D caused his death. It is likely that the jury would have considered a causation instruction
consistently w/ their consideration of the recklessness instruction, so the additional definition would not have influenced
the verdict. Thus, not including the more complete instruction did not result in a constitutionally defective conviction.
Judgment reversed.
CONCURRENCE
The final basic element of a crime is the concurrence requirement which mandates a particular connection between the AR and the
MR. Two types of concurrence must be present: (1) first, D must possess the requisite MR at the same time she engages in the AR.
This is called temporal concurrence because the focus is on whether the required MR was present at the same time that D
31
performed the AR; (2) second, the MR must be the motivating force behind the AR. This is called motivational concurrence. (As
you read Thabo Meli, decide for yourself whether the concurrence requirement was satisfied).
Thabo Meli v. Reginam (1954). Ds invited a man to a hut w/ the intent to kill him. While the man was at the hut, one of
the Ds hit the man on the head w/ a piece of iron. The man fell over unconscious but was not killed by the blow. But Ds
believed that the man had died. Ds then rolled the man down a hill, made the scene look like it had been an accident, and
left. Ds were indicted for murder. At trial, evidence of the post-modem examination conducted on the man revealed that
the blow to the head had not killed him and that death resulted from being left unconscious in the elements at the foot of
the hill. Ds were convicted and appealed. A defendant may be found guilty of murder so long as he possessed the
requisite MR during the commission of the crime. Here, Ds argue that they cannot be convicted of murder b/c the man
had not died as a result of the blow to his head. Ds performed two acts: (1) they attacked the man at the hut by striking him
on the head; and (2) they then rolled the man down the hill, being the ultimate cause of his death. The MR necessary to
establish murder is an intention to kill, and there could be no intention to kill when D believed the man was already dead
as a result of the blow to his head. So, their original intent to kill had ceased before they did the act which ultimately caused
the man’s death. But regardless, Ds’ intent was clear: it is clear that they set out w/ a plan to murder the man. Their crime
is not reduced from murder to a lesser crime b/c they were under some misapprehension for a time during the completion
of their criminal plot. (B/c they thought the blow had killed him, there was no MR when they abandoned him, and he died
from exposure; the first act did not cause death but had appropriate MR. The second act caused death but had no MR. But
court held that it was impossible to divide up what was really one transaction; the AR was said to be the series of acts and
omissions w/ MR covering the initial stages).
Common Law Causation Analysis
AR à (CAUSATION) à R
In all crimes w/ a result [R] element (also called “social harm”), P must prove causation BARD. Thus, D’s causation arguments are
failure-of-proof (or case-in-chief defenses). Causation connects D’s conduct [AR] to the social harm/result [R]. The flowchart
below captures the *common law* causation analysis: (1) but-for/actual causation; and (2) proximate/legal causation. [Homicide
crimes always include [R] (V’s death)].
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SEXUAL OFFENSES
SEXUAL OFFENSES
HISTORICAL EVOLUTION
When the sexual offenses section of the MPC was adopted in 1962, American law recognized three basic sexual offenses: (1)
forcible rape; (2) statutory rape; and (3) sodomy.
•
Forcible Rape: At common law, was defined as “the carnal knowledge of a woman forcibly and against her will.”
Forcible rape does not have a MR and it is not stated in the crime either; however, instead of treating it as a strict liability
crime, we treat it as a general intent crime.
o If D says he made a mistake about V’s consent, that mistaken belief would need to be both honest and reasonable
(objective component becomes: how would a reasonable person in D’s position assess V’s consent—would a
reasonable person think V consented)? This has two very significant implications:
§ (1) Who is that “reasonable” person? Are they 18? A college student? By asking this question, we
ultimately put V on trial, asking: What was her past sexual experience? What was she wearing? What
did she say/do, etc.? All these things become fair game for D to attack the MR.
§ (2) It reflects the old view of common law. (MPC is in process of revising its sexual assault crimes).
•
Statutory Rape: At common law, was defined as “sexual intercourse with a female under the age of consent, where the
age of consent varied from age 10 to age 18.” Idea was that a female under a certain age is unable to give consent. *In
some senses, statutory rape is still defined the same way today as it was at common law* (shocking). However, it has
changed in some important ways: (1) many states made statutory rape gender neutral (not limited to male perpetrators and
female victims); and (2) the crime has been divided into “grades” or various levels of statutory rape w/ differing levels of
punishment depending on the ages of each individual as well as the closeness between their ages.
o In terms of MR, statutory rape laws have not changed—historically and today, there is no MR because statutory
rape is a strict liability crime in the majority of states. [See CB pg. 435].
o Statutory rape was a capital crime at common law.
à Statutory and forcible rape shared common features:
§ First, neither crime contained an explicit MR as an essential element of the crime; statutory rape,
however, was and is usually considered to be a strict liability crime, meaning D could be found guilty
even if he didn’t know that the victim was under the age of consent. Forcible rape, by contrast, was and
continues to be considered a general intent crime.
• For statutory rape, what does this mean in terms of mistake of age? D cannot assert a mistake
of age defense to avoid culpability, b/c mistake is the flip side of MR and strict liability crimes
have no MR, thus rendering mistake of fact defenses irrelevant.
§ Second, both kinds of rape (forcible and statutory) assumed that the victim would be a woman and the
perpetrator a man, requiring vaginal intercourse as the AR element of the crime. Under this definition,
forcible sexual intercourse w/o the consent of a male child by a male adult would not constitute either
forcible or statutory rape, nor would oral or anal intercourse, whether by force or with a child.
- The vaginal intercourse requirement also meant that an assault in which an object
other than a penis was put into the victim’s vagina did not fall within the traditional
definition of forcible rape.
§ Third, the penalties for forcible and statutory rape were similar: for both crimes, the range of possible
punishments was extremely broad, from as low as three years in prison, to as high as the death penalty;
this wide range of penalties gave enormous discretion to the sentencing judge.
•
Sodomy: The American criminal law of a generation ago also punished sodomy, ominously and ambiguously defined in
many states as “the crime against nature.” Under common law, sodomy always included anal intercourse between men,
and sometimes included any sexual contact with an animal (and sometimes both same-sex and cross-sex oral sex). It
criminalized sex that was not “procreative.”
o While same-sex relations between men were uniformly criminalized, same-sex relations between women were
more ambiguously treated; depending on jurisdiction, lesbian relations might or might not be a crime.
o At common law, sodomy was a capital offense—and even after it stopped being a capital offense, the penalties
were still quite high, with 10 to 20-year maximums being common.
§ In mid-20th century, many states changed sodomy punishment to indefinite civil commitment instead of
prison (punishment was either sterilization or castration).
33
o
o
o
o
o
•
Unlike forcible rape, sodomy did not require either force or non-consent; the absence of a force element meant D
could not win an acquittal by questioning whether the victim resisted or whether his/her resistance was adequate
(questions that traditionally lay at the center of many forcible rape prosecutions).
§ Absence of non-consent element meant that married men who engaged in oral sex with their wives
could be convicted of sodomy, even in states where marital rape was not a crime, and that prosecutors
could convict consenting adults (such as gay and lesbian couples) of sodomy.
The change in sodomy laws reflect the reforms in rape laws in terms of the social movements that took place
(LGBTQ/Feminist Movements), but unlike forcible rape, changes in sodomy laws also came down from
SCOTUS. Queer folks framed sodomy as violation of their civil rights, inspired by the framing of the black Civil
Rights movement. Feminists were simultaneously succeeding in reforms of sexual assault laws.
What does this say about our changing attitudes of sexual autonomy as a component of personhood, dignity,
humanity?
Sodomy laws were historically gender neutral, applying to both different and same-sex partners.
MPC decriminalized sodomy in 1962.
Prostitution: Prostitution was not a crime at common law. It was not widely criminalized in the U.S. until the Progressive
Era (roughly 1880-1920) when a moral panic about the social evils of prostitution and the “white slave trade” it
engendered took hold of the public.
o By 1962, the vast majority of U.S. jurisdictions punished prostitution and related crimes, such as owning a
brothel.
Since 1962, courts and legislatures have changed many aspects of the law of sexual offenses.
• The law of forcible rape has changed the most dramatically—seems to be moving to reconceptualize forcible rape not
as a crime against a woman’s honor, but as a crime against a person’s sexual autonomy.
• The law of sodomy has similarly been drastically altered by judicial recognition of the liberty interests of consenting,
adult same-sex partners.
• The law of statutory rape and prostitution have remained relatively stable since 1962.
• In accordance w/ these recent shifts in law and society, the American Law Institute has formally recognized that
Article 213 of the MPC, “which was ahead of its time when approved,” is now “outdated and no longer a reliable
guide for legislatures and courts.”
SODOMY
From the 1860s to the mid-1970s, sodomy laws existed in almost every state and were used primarily to prosecute gay men.
Following the publication of the MPC, which omitted sodomy between consenting adults from its list of crimes, most state
legislatures began decriminalizing private consensual sodomy. Despite the decriminalization of sodomy laws by most states, when
Bowers v. Hardwick came before SCOTUS, 25 states still had sodomy laws on their books.
Bowers v. Hardwick (1986). Georgia statute criminalized oral and anal sex. D, an adult male, was charged w/ violating
the statute w/ another adult male in his home. The DA decided not to pursue the matter before a grand jury. D challenged
the statute’s constitutionality in federal district court, arguing that as a homosexual he was at risk of being arrested under
the statute again in the future. District court dismissed suit for failing to state a claim. 11th Circuit Court of Appeals reversed,
finding that D’s homosexual activities were private and could not be regulated by state law under the 9th Amendment and
the Due Process Clause, and that the Georgia statute violated D’s fundamental rights. The U.S. Constitution does not
provide a fundamental right to engage in homosexual sodomy. Only those fundamental liberties that are implicit in
the concept of ordered liberty or deeply rooted in the nation’s history/tradition may be considered fundamental
constitutional rights deserving of heightened protection.
None of this Court’s previous cases have determined that the Constitution provides a right of privacy that extends
to homosexual sodomy. The kinds of rights deserving heightened protection despite not being expressly identified in the
Constitution are those fundamental liberties that are “implicit in the concept of ordered liberty” or “deeply rooted in this
Nation’s history and tradition.” Sodomy was a criminal act under common law, the laws of the 13 states ratifying the Bill
of Rights, the laws of all but 5 of the states at the time the 14th Amendment was ratified, the laws of all 50 states in 1961,
and today under the laws of 24 states and D.C.
Homosexual sodomy is neither “implicit in the concept of ordered liberty” nor “deeply rooted in this Nation’s
history and tradition.” Court must resist expanding the reach of the Due Process Clause and redefining the category of
fundamental rights. Court’s prior holding that the 1st Amendment permits the reading of obscene material in the privacy of
one’s home was supported by the text of that amendment, whereas a right to homosexual sodomy is not similarly supported
34
by text. The limits on extending a right to privacy to homosexual acts in the home are not easily defined, since other criminal
acts are not immunized simply because they occur within the home. It would likewise be difficult to limit the right to
voluntary sexual acts between consenting adults, as it would leave open the question of adultery, incest, and other sexual
crimes that may occur in the home. Finally, the law at issue passes rational basis scrutiny, b/c it is based on notions of
morality. B/c the Constitution does not provide a fundamental right to engage in homosexual sodomy, decision is reversed.
o
Concurrence (Powell)
The Georgia statute’s authorization of a prison sentence for up to 20 years may violate the Eighth Amendment.
Dissent (Blackmun)
The majority obsessively focuses on homosexual activity despite the fact that the Georgia law applies broadly
to all people.
o This case is not about a fundamental right to engage in homosexual sodomy but is instead about the
comprehensive and highly valued right to be let alone.
o This case must be analyzed in the context of the values supporting the constitutional right to privacy.
o Every person has a fundamental interest in choosing and controlling the form and nature of his or
her intimate relationships with others.
• Georgia has not provided sufficient justification for its infringement of this fundamental interest.
• The assertion that the acts criminalized under the statute negatively affect the general public health and
welfare is not supported in the record, nor is it sufficient to state that such conduct has been considered
immoral under traditional Judeo-Christian values for hundreds or thousands of years.
• In Loving v. Virginia, 388 U.S. 1 (1967), this Court rejected Virginia’s argument that its antimiscegenation law was justified by religious values or the fact that most states had enacted similar laws
at the time the 14th Amendment was ratified, finding instead that the law deprived individuals of the
freedom of choice to marry, a similarly vital personal right.
o
Dissent (Stevens)
The Georgia statute applies broadly to all persons; however, prior cases have established that a state may not
infringe on individual liberties by prohibiting sodomy between married or unmarried heterosexual adults.
o Because the statute therefore cannot be enforced as written, either the individuals to which the statute is
selectively applied must not have the same level of interest in this individual liberty as others, or selective
application of the law must be supported by a neutral and legitimate state interest.
o Homosexuals have the same interest as heterosexuals in choosing their voluntary, private associations with
others, and no neutral and legitimate state interest has been offered in support of selective application to
homosexuals.
o Although the majority assumes selective application is justified by the Georgia electorate’s belief that
homosexual sodomy is unacceptable, this is not supported by the record—the broadly applicable law simply
reflects a belief that all sodomy is unacceptable, and the record reflects a long history of nonenforcement of the
statute.
o
Lawrence v. Texas (2003). Police officers were dispatched to D’s home in response to a report of a weapons disturbance.
When police went into the home, they observed D and another man engaged in a sexual act. P charged D and the other man
w/ engaging in “deviate sexual intercourse” with a person of the same sex. Both were convicted by a Justice of the Peace
and exercised their right to a new trial in criminal court. Ds argued that the statute was a violation of the Equal Protection
Clause. The criminal court rejected the arguments, and Ds entered a plea of nolo contendere. The court of appeals confirmed
the convictions, and Ds petitioned SCOTUS for review. The Due Process Clause of the 14th Amendment includes a
right to liberty in individual decisions concerning the intimacies of one’s physical relationship. The right to liberty
under the Due Process
Clause has been held to protect the rights of married couples to make decisions regarding procreation by invalidating a law
prohibiting the use of contraception. This same right has been extended to unmarried couples and individuals under 16
years old. This right was the basis of the decision in Roe v. Wade, which held that a woman has the right to elect an abortion
under some circumstances as a fundamental decision affecting her destiny. This right to liberty has also been extended to
personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.
In Bowers v. Hardwick, however, the court upheld a Georgia statute that criminalized sodomy, regardless of the
gender of the participants. In that case, the court framed the issue as whether individuals have a fundamental right to engage
in a certain sexual act. This failed to appreciate the liberty interest involved. The decision’s reliance on historical data and
practices was also misplaced. Much of the info relied on by the court in Bowers has been called into question. Additionally,
35
since the decision was issued, there has been an emerging awareness that liberty gives substantial protection to adult persons
in deciding how to conduct their private lives in matters pertaining to sex. For ex., the European Court of Human Rights
held that laws prohibiting consensual same-sex conduct were invalid under the European Convention on Human Rights.
Regardless of the historical circumstances, the key issue is whether the majority may use the power of the state to enforce
its views of morality on the whole society through operation of criminal law. The answer is no. The fact that the governing
majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law
prohibiting the practice. The private, consensual activity at issue in this case is within the realm of personal liberty which
the government may not enter. Bowers is overruled, and the statute in this case furthers no legitimate state interest that can
justify its intrusion into the personal and private life of the individual.
Concurrence (O’Connor, J.)
• Bowers should not be overruled. However, the statute in this case is unconstitutional under the Equal
Protection Clause. The statute applies only to sexual conduct between members of the same sex. The
same conduct is treated differently under the law based solely on the participants. Moral disapproval of
homosexuals is not sufficient to satisfy rational basis review under the Equal Protection Clause.
Dissent (Scalia, J.)
• The majority does not provide a sufficient basis for departing from stare decisis. The Bowers decision
held that the right to engage in same-sex sodomy was not a fundamental right. The majority does not hold
otherwise in this opinion. Instead, the majority applies a form of rational basis review to invalidate the
Texas statute at issue here. The majority essentially holds that all legislation based on morals is invalid.
This calls into question criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and
obscenity. Even if social perceptions of sexual and other morality are changing, the appropriate method
of changing the laws to reflect this would be in the legislature, not the creation of a new constitutional
right by this court.
Dissent (Thomas, J.)
• The Texas statute is “uncommonly silly” and should be repealed. Nevertheless, nothing in the
Constitution or Bill of Rights prohibits the Texas legislature from enacting the law at issue.
STATUTORY RAPE
Statutory rape laws were enacted in the Middle Ages to protect the chastity of young women. Now they are emerging as the latest
solution to the teen pregnancy problem (a 1995 study found about 2/3 of teen mothers were impregnated by adult males). Some
call these laws a relic of an oppressive past, while others think that they promote family values. (See below for conflicting
perspectives on statutory rape laws).
•
•
•
•
Majority of states still treat statutory rape as a strict liability crime (in 1964, all states did).
o Implications? D can be convicted even if he/she honestly and reasonably mistook age (mistake never a defense for
SL crimes).
But 24 states do not treat statutory rape as a strict liability crime—15 of those states follow the MPC approach. [See MPC §
213.4(4) and (6)].
o Under MPC, no mistake of age defense is permitted when V is under age 10; but mistake of age defense may be
permitted when V is over age of 10.
§ Depends on whether V is less than 16 years old while the actor is at least 4 years older.
§ Mistake would need to be both honest + reasonable (defense would be an affirmative defense w/ objective
component)
In 6 states, mistake of age defense is always available, regardless of age (e.g., Alaska has said it’s unconstitutional to deny
D that defense).
Also see MPC § 213.3. Corruption of Minors and Seduction. MPC does not contain a MR term for statutory rape.
“Risk of Psychological Harm to Girls” (Michelle Oberman)
Some argue that important reasons remain for enforcing, and even expanding, statutory rape laws, because these laws reflect a
consensus that minors are not mature enough to make major decisions because they are vulnerable to coercion and exploitation.
• Adolescence is a time of acute crisis in which self-esteem, body image, academic confidence, and the willingness to speak
out decline precipitously.
36
•
•
•
Psychologists studying girls’ sexuality report that these combined sources of insecurity, coupled w/ the perceived
importance of being attractive to males, lead many girls to look to males for validation (i.e., fulfilling emotional needs
through sex)
Thus, many girls consent to sexual relationships that society may recognize as exploitative; such encounters can result in
permanent harm to girls through depression, disease, and pregnancy; the harms girls suffer by “consenting” to sexual
exploitation may provide ample justification for laws that penalize those who would prey upon them.
Most modern statutory rape laws are gender-neutral and impose criminal liability only if the “victim” is under the age of
consent and the partner is older by anywhere from 2 to 5 years or more.
“Selective Enforcement Targets ‘Unpopular’ Men” (Richard Delgado)
Others contend that statutory rape laws are a bad idea (except in the case of the very young, who should of course be protected
from sexual predators). The idea is that the laws are applied unevenly, meaning that a high percentage of young women are victims
of statutory rape and a very large percentage of young men belong in jail. “Laws that sweeping are out of touch w/ social norms
and cannot be enforced, except selectively.”
• The laws are used as weapons to punish men who are politically unpopular, socially unacceptable, of the wrong color, or
who make the mistake of having intercourse w/ a woman from a socially upstanding (and well-connected) family; that
these laws uphold old notions of chastity and virginity, while providing a weapon against men from social groups that are
unliked.
• They also deprive women in their mid-and late teens of choice under the guise of protecting that choice.
• Need to ask deeper questions: What is rape? What is consent? When is intercourse pressured, and when is it an expression
of love between two autonomous individuals?
• Such mechanistic laws are both paternalistic and patriarchal and should be firmly resisted.
State v. Yanez (1998). D, who was 18 years old, saw a younger girl on the street and asked her to go out on a date with him. Both
had seen each other in passing on prior occasions but had never met. After the date, they engaged in sexual intercourse. The girl’s
mother learned of the encounter and called the police. D admitted to having consensual sex with the girl but insisted that she had
told him that she was 16 years old. In fact, she was only 13 years old. D was charged with first-degree child molestation sexual
assault. At trial, D attempted to introduce evidence of his mistaken belief that the girl was 16 years old based on her maturity,
appearance, physical development, and demeanor. The trial court rejected D’s evidence, holding that mistake of fact was not a
defense to the crime of child molestation sexual assault. D was convicted and sentenced to 20 years’ imprisonment, with 18 years of
the sentence suspended with probation. D appealed, arguing that due process required the trial court to allow him to introduce
evidence of his reasonable mistaken belief as to the girl’s age.
Reasonable mistake as to a victim’s age is not a valid defense against the strict-liability crime and statutory rape
offense of child molestation sexual assault. The state legislature has divided sexual offenses into two categories: (1) sexual assault
crimes; and (2) child-molestation-sexual-assault (CMSA) offenses. The sexual assault crimes expressly require proof of MR, while
the CMSA offenses are expressly based in strict liability. The CMSA statute criminalizes engaging in sexual penetration with a
female child who is 14 years old or younger. The law does not refer to the D’s state of mind, knowledge, or belief with respect to
the child’s age. In this case, D argues that the CMSA statute violates due process by preventing him from introducing evidence of
his reasonable mistaken belief that the girl was 16 years old. However, there is a violation of due process only if the traditional
notions of justice are offended by imposing strict liability for CMSA offenses. D has presented no such evidence. Therefore, D may
not claim reasonable mistake as to age as a defense. The trial court properly concluded that the girl is the type of victim that the
legislature intended to protect by enacting the strict-liability statute. Moreover, the trial court has fashioned a reasonable sentence
for D.
Dissent (Flanders)
The CMSA statute was never intended to be applied to the situation in this case, where two teenagers engaged in
consensual sexual intercourse. This conduct is not child molestation within the meaning of the statutory-rape law. A
growing number of American jurisdictions have adopted laws based on Model Penal Code (MPC) § 213.3(1)(a), which
prohibits sexual intercourse with a female child under the age of 16 years only when the defendant is at least four years
older than the child. The MPC expressly permits reasonable mistake of fact as a defense when the victim is at least 10
years old. The legislature should enact a similar law. D should have been permitted to introduce mistake-of-fact evidence
to show his good-faith belief regarding the girl’s age.
SEXUAL ASSAULT (FORCIBLE RAPE)
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The law of forcible rape has changed in fundamental ways since the founding of the nation. Some of these changes are a result of
feminist activism; others have occurred as norms concerning sexuality have changed drastically in the last few generations. As a
result, many old common law rules of forcible rape have been abandoned.
•
•
•
The central question that continues to divide courts and legislatures is whether rape should be defined as sexual contact
involving “force” or as sexual contact in the absence of consent.
o The oldest definition of rape from English common law contained both force and non-consent elements.
Another longstanding peculiarity of rape law concerns MR. While all courts whose codes incorporate the common law
agree that rape is a general intent crime, they do not agree w/ respect to whether there is a MR element attached to the
force element of forcible rape.
o Ex. – some courts suggest that since sexual intercourse by force or threat of force is the AR of rape, D must have
intended to have sex by force or threat of force.
o Others treat the force requirement as a strict liability element; under this view, as long as D intended to have
sexual intercourse w/ the victim, he is guilty of forcible rape if that sexual intercourse was by force or threat of
force (and w/o consent of the victim).
Courts similarly disagree on the MR for the non-consent element of rape; some jurisdictions treat the element as one of
strict liability, requiring no MR at all w/ respect to this element.
o In at least one jurisdiction, “purpose” to have non-consensual sex is required.
o In a few jurisdictions, D must have “known” that he did not have the victim’s consent in order to be guilty of
rape.
o In some jurisdictions, “recklessness” is the standard.
o In other jurisdictions, “negligence” suffices.
1.
•
•
THE ELEMENT OF FORCE OR THREAT OF FORCE
In many forcible rape cases, the critical question is whether D used either force or threat of force to accomplish the
sexual intercourse. Answering that question requires a definition of “force.”
• Courts used to require evidence of substantial physical violence to satisfy the force requirement; this high
bar for the proof of force was in keeping w/ the general view that rape was a crime “easy to charge and hard
to disprove.”
o Force element was clearly satisfied if D used deadly force (i.e., force likely to cause death or
serious bodily injury, to accomplish sexual intercourse); if D used something less, many courts
required proof of physical “resistance” by the victim (i.e., a woman claiming she was raped
had to resist her attacker “to the utmost” to satisfy the force (and non-consent) requirement.
• Today, proof of deadly force is no longer required to satisfy the force element of rape, but it is not clear
exactly how much force is sufficient.
o Most jurisdictions have eliminated or weakened the resistance requirement.
o However, even w/o an explicit resistance requirement, evidence of resistance plays an important
role in establishing the elements of force and non-consent.
§ Judges and jurors often look for evidence of resistance by the victim and may be skeptical
of the victim’s claim of rape if they did not physically resist.
• If P seeks to satisfy the “force” element by showing that D used a threat of force to accomplish the sexual intercourse,
most jurisdictions require evidence that D did something to place the victim in reasonable apprehension of serious
physical harm.
General rule is that the victim’s subjective fear of D is insufficient to prove threat of force.
P must instead point to facts supporting the conclusion that a reasonable person in the victim’s shoes would have feared
serious physical harm.
o A few states recognize an exception to this rule and allow a victim’s subjective fear to establish threat of force if D
knew the victim’s fear and took advantage of that fear.
Rusk v. State (1979). D met the victim at a bar where they had a short conversation. As the victim was about to leave, D
asked her for a ride home. The victim agreed, and when they arrived at his apartment, the victim parked but did not turn off
the ignition. D asked her to come inside but she refused; he then removed her keys from the ignition and asked her to come
in again. The victim later testified that she went inside w/ him because she was scared and didn’t know what else to do. In
D’s room, he began to undress her. When she began crying, D lightly choked her. She later testified that she was scared and
complied because of “the look in his eyes.” They then proceeded to have sexual intercourse. In Maryland, a conviction of
rape requires sufficient evidence that the victim resisted, and that D overcame her resistance by force or threat of
force. In order to justify a conviction of rape, there must be sufficient evidence that either the victim resisted and D used
38
force to overcome her resistance or that the victim could not resist due to fear for her safety. The victim’s fear for her safety
must be reasonable. In this case, the victim did not resist. The victim states that she went into D’s apartment because he had
her keys and she was scared. While D may have prevented her from driving away, however, nothing prevented her from
running to a neighbor or down the street. The victim said that she did not resist D inside the apartment because of the look
in his eyes. She also testified that he began to lightly choke her. However, none of these factors make the victim’s fear for
her safety reasonable. Consequently, there is insufficient evidence to show that D is guilty of rape.
Dissent: Consent is not the issue in this case. The issue concerns whether a sufficient amount of force was used.
However, the issues of consent and force are often confused because of the idea that a victim must resist an attack.
This requirement places the blame on what the victim fails to do, rather than what D does. Nevertheless, the
majority correctly states that evidence of resistance is necessary. However, it improperly replaces the trial judge
and jury’s judgment with its own. The judge and jury, who had the benefit of observing the witnesses and hearing
their words, decided that there was a sufficient use of force by D. The majority, which did not have such a benefit,
should not have substituted its own judgment for that of the judge and jury.
Commonwealth v. Berkowitz (1992).
2.
THE ELEMENT OF NON-CONSENT
Forcible rape generally requires proof that the sexual intercourse was w/o consent of the victim
• How does one know whether sexual activity is w/ or w/o the consent of the other person? What if there is no
explicit “no” and no explicit “yes?” What if someone undresses, gets a condom, nods in agreement?
• What if the victim says “no” but D honestly believes the victim meant “yes?” Should a man who honestly but
mistakenly believed his female partner was consenting—even though she said “no”—to be absolved of
liability for rape?
In the U.S., a D charged w/ forcible rape can argue that he was mistaken about the victim’s consent, but his mistake
must be both honest and reasonable.
• An honest and reasonable mistake as to consent is an affirmative defense to rape. If jury finds that D honestly
and reasonably believed the victim was consenting even if she was actually not, it may find D not guilty of
rape.
• Asserting the defense of honest and reasonable mistake re: consent, however, is different from claiming that
the victim was actually consenting.
o What constitutes a reasonable belief in consent?
§ If a substantial % of women say “no” when they really mean “yes,” is it reasonable for a
man to think that a woman who says “no” is in fact consenting?
§ Several studies indicate that many women and some men say “no” when they actually want
to engage in sexual intercourse.
• When juries assess whether the complaining witness consented or whether D reasonably believed the
complaining witness was consenting, it appears that cultural attitudes may matter more than gender.
State of New Jersey in the Interest of M.T.S.
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•
Forcible Sexual Assault Takeaways: Policy + Doctrine
We study forcible sexual assault for 2 reasons—policy and doctrinal reasons
o Policy: sexual assault w/ force or threat of force (or without force) is a substantial social problem
§ Despite law reforms of 1980s, changes in legislation and prosecution/enforcement of laws may not have
made much progress
o Especially true for vulnerable populations (young adults in custody; women of all races in rural America;
undocumented workers and other easily exploited communities; trans community, etc.)
§ Laws have continued to perpetuate the targeting of unpopular men + boys
§ Hard to feel good about what is going on from policy perspective
Comparing Traditional Common Law, MPC, & Evolving Common Law Approaches to Forcible Sexual Assault
Traditional CL
MPC
Evolving CL
Definition (what
conduct is a crime?)
D’s force and against
V’s will (later nonconsent);
Blackstone, 1769:
“carnal knowledge of a
woman forcibly and
against her will.” Note:
this definition was
used until 2012 by the
FBI in data collection.
Shift to more focus on
whether reasonable D
would have known
there was high risk V
did not consent;
Not limited to vaginal
or anal penetration.
(sounds like what
recklessness is)
Gender Specific?
Yes (limited to vaginal
penetration by penis)
Focus on D’s conduct re: force
more than V’s non-consent;
§213.1(1)(a) is our focus: “A
male who has sexual
intercourse [broadly defined]
with a female not his wife is
guilty of rape if he compels her
to submit by force or by threat
of imminent death, serious
bodily injury, extreme pain or
kidnapping, to be inflicted on
anyone…”. (narrow threat of
force in MPC; bad for victim)
Yes (only male D, only female
V)
Spousal Exception?
Yes (idea that “you
cannot rape your wife
b/c she consented at
marriage”)
Actual force shown by
“utmost resistance;”
MD high court dissent
by three judges; V
“must follow the
natural instinct of
every proud female to
resist, by more than
mere words, the
violation of her person
by a stranger or an
unwelcomed friend.”
General Intent; none
stated; mistake re: V’s
consent must be honest
and reasonable. Thus,
D’s MR inquiry come
to focus on V’s
behavior (utmost
resistance?) and
whether she resolutely
conveyed to D that sex
was against her will.
Yes (“not his wife”), §213.6(2)
In transition
Force or threat of force, defined
as: “threat of imminent death,
serious bodily injury, extreme
pain or kidnapping”
In transition (Rusk);
MD law 2017:
evidence of V’s
physical resistance is
not required to prove
forcible rape;
Often turns to focus on
V: would a reasonable
V have perceived and
then “submitted” to
D’s threat of force?
Does nonconsensual sex
equal force?
(M.T.S./NJ)
Recklessness or higher (none
stated); mistake re: V’s consent
must be honest & reasonable.
Recklessness; tension
between focus on D’s
MR (reasonable?) and
V’s conduct and
mental state (did V
convey their nonconsent)?
Are small minority
of states that treat
V’s consent as
strict liability
element on the
right track? What
about those that
impose a higher
MR for this
element
(knowledge)?
Force Element
MR?
Does not apply to AR
(intercourse) but to D’s
intent re: V’s consent.
[We’ll encounter this
focus on the V again in
the context of
provocation/voluntary
manslaughter].
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No on its face (but yes
in practice?)
Envisioned
Future?
Openness
regardless of
gender expression
and identity?
Traditional CL
Grades?
No
Corroboration
Requirement?
Yes; see 1967
Columbia law student
who wrote: “Surely the
simplest, and perhaps
the most important,
reason not to permit
conviction for rape on
the uncorroborated
word of the prosecutrix
is that that word is
very often false.”
(“women lie”)
Lord Hale (16091676): allegation of
rape is “easily to be
made and hard to be
proved, and harder to
be defended by the
accused tho’ never so
innocent.”
Cautionary jury
instruction? (tension
between D’s
constitutional rights to
defend v. V’s right to
be treated like other
crime Vs rather than
“put on trial” by the
defense)
Social Harm?
MPC
Yes, see paragraph at end of
§213.1(1): first degree rape if
above but reduced to second
degree (i) if D does not inflict
serious bodily injury on anyone
OR (ii) V was a “voluntary
social companion” and had
“previously permitted him
sexual liberties;” (almost like
“go ahead and rape someone
who’s already consented to sex
once”)
§213 defines a host of other,
less serious crimes:
gross sexual imposition (for a
TOF that doesn’t involve
physical violence; when D
“compels her to submit by any
threat that would prevent
resistance by a woman of
ordinary resolution”;
deviate sexual intercourse (D
still male but V may be male or
female);
corruption of minors and
seduction (statutory rape);
simple sexual assault as a
misdemeanor.
Yes, see §213.6(5): no
conviction without
corroboration of V’s testimony
for all SA felonies;
corroboration may be
circumstantial; what might
constitute corroboration: V’s
broken bones, bruising, torn
clothing, pregnancy or birth,
D’s own admission, prompt
complaint to a third party or
authorities, etc. [context]
§213.6(5): “the jury shall be
instructed to evaluate the
testimony of a victim or
complaining witness with
special care in view of the
emotional involvement of the
witness and the difficult of
determining the true with
respect to alleged sexual
activities carried out in public”
Traditional CL
MPC
Damage to father’s
property by destroying
daughter’s chastity.
Forcible rape as a crime of
violence as opposed to male
seduction gone awry (more like
robbery).
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Evolving CL
Envisioned
Future?
Would it make
sense to grade
sexual assault
based on D’s MR,
from purpose
down to
negligence?
Technically eliminated
in most states, but still
operative via inquiries
V’s condition and
post-sexual assault
behavior
Rape shield laws in
evidence designed to
protect V from
obtrusive questions
about her life beyond
the attack; subject to
D’s Sixth Amendment
rights
Which way does
D’s prior
relationship
(dating, friends,
acquaintances,
relative, etc.) cut?
Is it true that this
doesn’t matter?
Evolving CL
Envisioned
Future?
Debate (even among
feminists): crime of
violence or crime
against sexual
autonomy?
M.T.S. (NJ) v.
Berkowitz (PA)
debate; what about
the Antioch
policy; other
college campus
efforts that move
away from
handling via
criminal system?
Restorative justice
alternatives? Does
the emphasis on
college rape
provide more
protection for
middle and upper
middle-class Vs
while taking the
spotlight away
from rape in
contexts where
financially
vulnerable people
are raped (jails,
prisons, migrant
detention) and
where sexual
harassment is
rampant (work)?
Statute of Limitation
•
Fresh complaint rule
3-month statute of limitation
In transition, see
Catholic church
prosecutions
MPC reconfigures common law forcible rape and common law statutory rape into this kind of more complicated menu or
graduation of sexual assault crimes under heading “sexual offenses.”
o Was very innovative at the time; lags well behind the common law today
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