Exam 3 Review
Chapter 12: Public Order, Morality, and Vice Crimes
Module 12.1: Public Order Crimes (pp. 202-205)
Introduction
Citizens in any society value their ability to carry out their daily activities in a peaceful manner free from
harassment or alarm. Citizens expect their government to ensure public order. A variety of criminal
offenses have been crafted that address violations of public order in some way. These crimes, in
particular, reflect the never ending task of the criminal law to strike a balance between order and
liberty, as described in this module.
Learning Objectives
1. Understand the group and individual public order offenses, including unlawful assembly and
disorderly conduct.
2. Understand the evolution of the vagrancy and loitering laws.
Individual Public Order Offenses
The common law crime of breach of the peace involved an individual act that disturbed or tended to
disturb the tranquility of the citizenry. This crime included both actual and constructive breaches of the
peace. Constructive breaches of the peace included conduct that was likely to provoke others to disrupt
the peace, such as challenging another person to a fight.
Contemporary American jurisdictions continue to recognize the importance of maintaining public order
for the benefit of all citizens. Individual public order conduct is most often addressed in disorderly
conduct statutes. Rather than the broad scope of the common law breach of the peace crime, these
contemporary laws tend to identify specific conduct that in some way “breaches the peace.”
For example, the Texas disorderly conduct statute prohibits intentional or knowing “abusive, indecent,
profane, or vulgar language in a public place, [that] by its very utterance tends to incite an immediate
breach of the peace” and an offensive gesture or display in a public place, that “tends to incite an
immediate breach of the peace.” Other prohibited conduct occurring in a public place includes abusing
or threatening a person in an obviously offensive manner, making unreasonable noise, fighting,
chemically creating a noxious odor, recklessly exposing certain body parts, engaging in “peeping Tom”
behavior, and certain displays or discharges of firearms (not involving discharge at other individuals)
(Texas Penal Code § 42.01).
The Model Penal Code disorderly conduct provision prohibits three categories of conduct: 1) engaging
in fighting or threatening, or violent or tumultuous behavior;
2) making unreasonable noise or “offensively coarse” utterance, gesture or display, or addressing
abusive language to another; and 3) creating a hazardous or physically offensive condition without
legitimate purpose. This provision requires the specific mens rea of a purpose to cause public
inconvenience, annoyance or alarm or recklessly creating a risk of such.
At common law and today, disorderly conduct is a misdemeanor crime. Do you think that we should
continue to criminalize this conduct? Why or why not?
Group Public Order Offenses
The common law also criminalized group public order violations. Unlawful assembly involved the
assembly of three or more people with the purpose to engage in an unlawful act. If the group members
took steps to accomplish their shared illegal purpose, they committed the common law crime of rout.
The common law crime of riot occurred if three or more people engaged in an unlawful act of violence.
Thus, these offenses recognized an escalating set of group criminal behavior that escalated from
the potential of a group of individuals to do harm to others to conduct that actually harmed others.
Many states continue to separately criminalize this group public order behavior. Others use their
conspiracy laws to address the underlying criminal behavior of the group. Although sometimes
challenged as violative of the First Amendment rights of free speech or assembly, courts have upheld
laws that clearly distinguish between lawful gatherings and protests and those for an unlawful purpose.
The Model Penal Code includes a provision addressing the failure to disperse upon official order of
three or more persons engaging in disorderly conduct that is likely to cause substantial harm or serious
inconvenience, annoyance or alarm. Its riot provision addresses disorderly conduct by three or more
people done with a purpose to commit or facilitate the commission of a crime, or to prevent or coerce
official action; or when one of the people uses or plans to use a deadly weapon.
Vagrancy and Loitering
At common law, vagrancy was defined as wandering the streets with no apparent means of
support. Loitering consisted of standing in public with no apparent purpose. Both of these laws were
prompted by the end of the feudal system and resulting concerns regarding both rebellion and needed
labor.
American jurisdictions widely adopted these laws that criminalized a wide range of behaviors as well as
certain lifestyles, including homelessness and panhandling. The enforcement of these laws gave
significant discretion to police and had the potential to allow targeting of disfavored individuals or
groups. Increasingly, the laws were challenged as violating due process because they were void for
vagueness or overbroad or both (see Papachristou v. City of Jacksonville, p. 205).
States wishing to criminalize conduct in this area have been required to more specifically identify the
prohibited conduct in a manner that supports appropriate government interests to maintain public
order or other permissible government interests. Courts continue to review challenges to these laws,
such as the Chicago ordinance that authorized the police to order dispersal of a “criminal street gang
member” who was “loitering” in public with 1 or more persons. The U.S. Supreme Court found this
ordinance unconstitutionally vague (see Chicago v. Morales, p. 205).
The Model Penal Code does not have a vagrancy provision and limits its loitering provision to loitering
or prowling in a place, at a time or in a manner not typical for law-abiding people and under
circumstances that “warrant alarm for the safety of persons or property” nearby. The Model Penal
Code also has specific provisions regarding obstructing a highway or public passage without legal
privilege, refusing to obey reasonable official requests to move, and disrupting a lawful meeting,
procession, or gathering. Do these provisions address the constitutional concerns directed at the
vagrancy and loitering statutes? Why or why not?
Module 12.2: Vice and Drug Crimes (pp. 205-216)
Introduction
The crimes discussed in this module ‒ including prostitution, alcohol, and drug offenses ‒ are sometimes
regarded as “victimless” crimes that do not harm the person or property of anyone other than the
person engaging in the conduct. Nevertheless they, and particularly the substance-related offenses, are
responsible for large proportions of arrestees each year. Because significant criminal justice resources
are devoted to the enforcement of these offenses, it is important to understand what behavior is
criminalized and why.
Learning Objectives
1. Understand traditional and contemporary concepts of prostitution.
2. Understand the traditional and contemporary concepts of obscenity.
3. Understand the traditional and contemporary concepts of alcohol offenses. 4. Describe contemporary
drug offenses.
Prostitution
Although also known as the “world’s oldest profession,” prostitution has been widely criminalized in
many places for centuries. Traditionally, prostitution was defined as a female offering her body for hire.
Various rationales have been provided for criminalizing this conduct, including its potential to weaken
family relationships, exploit women, encourage transmission of disease, and promote social immorality.
In this country, prostitution remains against the law at the state level in all states, but is authorized in
certain counties in Nevada. Largely as a result of the women’s rights movement in the 1970s and 1980s,
the definition of prostitution has been expanded in several ways. The crime is now gender neutral and
both males and females can be prosecuted for offering sexual services for money or other items
of value. The range of sexual services has also been expanded and now usually includes vaginal, oral,
and anal sexual conduct. Finally, both the person offering sexual services and the person seeking them
are now typically subject to arrest.
In addition to criminalizing prostitution, states typically criminalize the conduct of others involved in the
financial side of the prostitution transaction (the “pimp” or brothel owner) and those who coerce others
to engage in prostitution. In Helms v. State (pp. 206-207), the defendant was convicted of deriving
support from the proceeds of prostitution and transporting another for the purposes of prostitution in
connection with his escort service. What was the basis of his claim that he did not know that
prostitution (rather than escorting) would take place in this instance? Why was his claim rejected? Do
you agree?
The Model Penal Code prostitution provisions include the above-described trends of gender neutrality,
expanded range of sexual services, and criminal consequences for both the person seeking and offering
sexual services for a fee. Several types of conduct that “promote” prostitution are also included.
Obscenity
During the common law era, obscenity was prosecuted in the ecclesiastical (religious) courts in England.
In the early 1700s, however, the royal judges assumed jurisdiction over the conduct, viewing it as an
offense against the peace. Rationales for continued prosecution of obscenity in this country include
obscenity’s immoral character, exploitation of women, and suggested encouragement of antisocial
behavior.
Although long prohibited in this country, constitutional challenges to obscenity laws began to be
mounted on the grounds that such laws violated free speech protections. In Roth v. United States (p.
209), the U.S Supreme Court held that obscenity was not constitutionally protected speech. In Miller v.
California (p. 209), the U.S. Supreme Court established a three-part test for defining obscenity for
constitutional purposes: 1) whether the average person, applying contemporary community standards,
would find the work, taken as a whole, appeals to a prurient interest in sex; 2) whether the work depicts
or describes in a patently offensive way, specific sexual conduct identified by state statute, and 3) taken
as a whole, the work lacks serious literary, artistic, political or scientific value. The Model Penal
Code and many states use this obscenity definition in their provisions.
It remains illegal in all states to buy, sell, exhibit, produce, distribute or possess with the intent to
distribute obscene material. Most law enforcement attention is addressed to the commercial aspects of
obscenity and all aspects involving child pornography.
The new trend of “sexting” ‒ transmitting sexually explicit images to another person via cell phone, text
message, or email ‒ has resulted in new criminal laws involving minors. Some states have attempted to
distinguish this conduct, if conducted between minors, from child pornography. In State v. Canal (pp.
211- 212), what defense did the defendant raise concerning his conviction for knowingly disseminating
obscene material to a minor. Do you agree with the appellate court in upholding his conviction? Why or
why not? Does your state have a sexting law? What does it address?
Alcohol Offenses
The common law did not have distinct crimes prohibiting alcohol intoxication. Consumption of alcohol is
as old as our country itself. Growing concerns about the individual overuse and abuse of alcohol and
how it might negatively affect others, however, led to the enactment of criminal laws to address these
concerns. These concerns also led to the ratification in 1919 of the Eighteenth Amendment to the U.S.
Constitution that prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the
importation thereof into, or the exportation thereof from the United States” (repealed in 1933 in the
Twenty-first Amendment).
Today, alcohol continues to be widely used by Americans. A variety of criminal laws address conduct
involving excessive consumption of alcohol that puts the drinking individual or others at risk of harm.
Originally, the primary criminal laws that addressed excessive drinking were laws prohibiting public
drunkenness. Today, states typically continue to criminalize public intoxication. However, many states
require that the intoxication occur not only in a public place, but that it also is to the degree that it poses
a risk of harm to the intoxicated person or others. The Model Penal Code requires a risk of harm to the
intoxicated person or other persons or property or annoyance to people nearby. This is typically a strict
liability crime that does not require the prosecution to prove a mens rea for the offense. Some states
also authorize alternatives to taking an intoxicated person into custody for this offense, such as
releasing the person to another responsible person or treatment facility.
Once motorized means of transportation were developed, such as cars, motorized boats, and planes,
risks associated with an intoxicated operator increased greatly. Driving while intoxicated laws, that
prohibit an intoxicated person from operating a motor vehicle, consistently result in over a million
arrests each year. Most states have parallel criminal laws prohibiting operating a boat or airplane while
intoxicated. To prohibit the risk of intoxication in a motor vehicle, most states also prohibit the
possession of an open container of alcohol in the car by the driver (and by any passenger in some
states). When an intoxicated driver actually causes injury or death through the operation of his vehicle,
states criminalize that conduct through intoxication assault or manslaughter laws. In most states, these
criminal laws are strict liability crimes that do not require the prosecution to prove an accompanying
mens rea.
Intoxication, for purposes of these criminal laws, has traditionally been defined as an impairment of
mental or physical faculties due to the consumption of alcohol (or other intoxicating substance).
Supporting evidence of such intoxication could include evidence of slurred speech, “glassy” eyes, or
smell of alcohol. In more recent years, alcohol-related intoxication could be calculated based on alcohol
concentration in a person’s breath, blood, or urine. For many years, the alcohol concentration level for
intoxication was typically set at .10. In 2000, Congress suggested a reduction of this level to .08 and
imposed a reduction of federal highway funds from states that declined to reduce the alcohol
concentration level to this rate. All states subsequently adopted the .08 alcohol concentration level for
intoxication.
Another area of Congressional concern was intoxication among young persons. In 1984, Congress
enacted legislation to establish a national minimum drinking age of 21 for the purchase and public
possession of alcohol. Congress also imposed a reduction of federal highway funds from states that
declined to adopt this minimum drinking age. All states have generally adopted this national minimum
age level for the purchase and public possession of alcohol, with some variations if the conduct occurs
while the young person is under supervision of a responsible adult. In 1995, Congress authorized a
reduction of federal highway funds from states that declined to set .02 as the prohibited alcohol
concentration level for impaired driving by persons under 21.
Some states have actually exceeded these Congressional age-related provisions and criminalize a wider
range of conduct by underage drinkers, including not only purchase and public possession of alcohol,
but also consumption of alcohol and misrepresentation of age to obtain alcohol. Some have also
adopted a zero tolerance approach for underage drivers that prohibits their driving with any detectable
amount of alcohol in their system. Of course, those who sell or otherwise provide alcohol to minors are
subject to criminal sanctions as well. What are the age-related provisions regarding alcohol in your
state?
Drug Offenses
The common law did not prohibit the possession, use, manufacture, or sale of drugs. Before the early
20th century, heroin, cocaine, and marijuana were lawfully available and were even included as
ingredients in some over-the-counter medicines. Concerns about the use and abuse of these and other
substances led to the federal government’s entry into the regulation and subsequently the
criminalization of these substances. In 1906, Congress enacted legislation to require expanded labels on
medicines containing these substances that indicated their presence and potential side effects. In 1914,
Congress passed its first criminal law, under its taxation power, that punished nonmedical use of opium,
morphine, and cocaine and subsequently did the same regarding marijuana (in 1937). Thereafter, under
its interstate commerce power, Congress enacted several criminal laws regarding the possession,
manufacture, and sale of a variety of drugs.
In 1970, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act. This legislation
included the Controlled Substances Act that established five schedules (categories) of drugs based on
their degree of accepted U.S. medical use in treatment, degree of potential for abuse, and degree of
dependence or effects resulting from abuse (see p. 214). Criminal penalties regarding the possession,
manufacture, and sale of drugs were graduated based on the particular schedule to which the drug was
assigned or based on certain specific drugs of greatest concern (such as heroin or cocaine). Over the last
40 years, the federal government has significantly expanded its pursuit of drug-related crimes in a “war
on drugs.”
Of course, both before and after the 1970 federal legislation, state governments have enacted their own
drug laws and have actively pursued them. To attempt to coordinate the state drug laws with the
federal laws, the 1970 federal law was followed by a federal Uniform Controlled Substances Act that
provided states a model template for their own laws, including the use of the five federal drug
schedules. All states have a detailed set of laws that criminalize the possession, manufacture, and sale of
prohibited drugs. At both the federal and state level, criminal penalties are generally based on the type
or category of the drug, the activity regarding the drug (possession, manufacture, or sale) and the
quantity of the drug involved.
Over a million arrests are made for drug offenses each year. The active pursuit of drug crimes has
resulted in meaningful increases in state and federal incarceration rates over the last 40 years. Drug
usage is currently highest regarding marijuana. In addition to drugs like heroin, cocaine, and
methamphetamines, an area of increased concern in recent years is the nonmedical use of prescriptiontype drugs.
In recent years, a growing number―that now represents a majority―of states have authorized the use
of marijuana for medical purposes only to varying degrees. Some states have reduced criminal penalties
associated with possession of small amounts of marijuana. In 2012, Colorado and Washington were the
first states to legalize the possession of small amounts of marijuana by people over 21 for recreational
purposes (and related production and distribution) under certain circumstances; and they have
established state systems to regulate this. Several other states have subsequently adopted similar
legislation. At the federal level, and in most states, however, possession, manufacture, and sale of
marijuana for non- medical purposes remain subject to criminal penalties.
Module 12.3: Morality-Based Crimes (pp. 216-218)
Introduction
Although all criminal laws reflect the moral values of a society in a sense, some criminal laws explicitly
enforce a society’s moral codes of conduct. As a society’s moral norms evolve over time, sometimes the
criminal laws enforcing these moral codes of conduct evolve as well. The crimes of fornication, adultery,
bigamy, and incest, discussed in this module, reflect this evolution in the criminal law in this country.
Learning Outcomes
1. Understand the evolution of the criminal laws regarding fornication and adultery.
2. Understand the evolution of the criminal laws concerning bigamy. 3. Understand the evolution of the
criminal laws concerning incest.
Fornication and Adultery
Fornication involved sexual intercourse between unmarried persons. Adultery originally involved sexual
intercourse with another person’s wife. It evolved into sexual intercourse between a man and woman,
at least one of whom was married to someone else. Over time, variations developed as to whether only
the married party or both parties were subject to sanction. Both fornication and adultery involved
consensual sexual conduct between the parties. Fornication and adultery were not originally common
law crimes, but were subject to sanction in the ecclesiastical (religious) courts. If fornication was “open
and notorious,” it was considered a crime because it was a public nuisance.
During colonial times, both fornication and adultery were widely treated as criminal in this country. They
were viewed as crimes against both moral norms and marriage itself. Early punishments for these crimes
could be quite severe, as reflected in the novel The Scarlet Letter. Over time, however, criminal
punishments for this conduct were significantly reduced.
Currently, a majority of states no longer criminalize fornication and adultery, and the Model Penal
Code does not contain provisions regarding this conduct. In the minority of states in which fornication
and/or adultery remain criminal offenses, prosecutions are rare often because the conduct is not
reported to law enforcement or is addressed by the parties in other ways. Is either fornication or
adultery a criminal offense in your state? If not, when were criminal sanctions removed? If so, what are
the punishments provided?
Bigamy
Bigamy is defined as a subsequent marriage at the time that a prior valid marriage is in existence. It was
originally punished in the ecclesiastical (religious) courts and was later made a crime. Polygamy involves
a person being married to more than 2 people at the same time. In this country, bigamy (which includes
polygamy) is illegal in all states. The U.S. Supreme Court rejected a challenge to these criminal laws
based on a claim that they violated constitutional guarantees of religious freedom (see Reynolds v.
United States, p. 217). The Model Penal Code provisions on bigamy and polygamy, and the criminal laws
of many states, make both parties to the bigamous marriage liable (if they have knowledge of the
previously existing marriage). The Model Penal Code, and some states, also provide some exceptions for
liability, including if the person “reasonably believes” he is legally eligible to remarry or the person
believes that the prior spouse is dead. How does your state define the crime of bigamy? Does it
recognize any defenses or exceptions to liability?
Incest
Incest involves sexual relations between certain categories of related persons. It does not require a lack
of consent between the parties. It was not a common law crime, but was punishable in the ecclesiastical
(religious) courts. A variety of rationales supported incest prohibitions, including preservation of familial
relationships and even genetic concerns.
All states continue to prohibit incest in some form. The most common categories of prohibited
relationships include parents/grandparents and children/grandchildren, brothers and sisters, and
aunts/uncles and nieces/nephews. A small number of states continue to include first cousins among the
prohibited relationships. Jurisdictions vary as to whether they prohibit only relationships created by
“blood” or also those created by marriage. When relationships created by marriage are included, the
incest prohibition usually ends when the marital relationship creating it ends by death or divorce. How
does your state define incest?
The Model Penal Code provisions are limited to “blood” relationships and adopted parent-child
relationships, and include ancestors/descendants, brothers/sisters, and aunts/uncles and
nieces/nephews. They also include cohabitation and marriage as well as sexual intercourse.
Chapter 4: Justification Defenses
Module 4.1: Overview of Defenses (pp. 59-62)
Introduction
This module distinguishes between the types of defenses, as well as the varying impact that a defense
can have on a defendant’s criminal responsibility. The rationale for the justification defenses, the
primary focus of this chapter, is also discussed.
Learning Objectives
1. Understand the differences between the types of defenses.
2. Understand the varying impact that defenses may have on a defendant’s criminal responsibility.
3. Understand the rationale for the justification defenses.
A defendant may raise a variety of defenses to reduce or eliminate criminal responsibility for the
conduct establishing the underlying crime. These defenses may negate a required element of the crime,
or establish a legally recognized excuse or justification regarding the crime. Just as regarding the
underlying crime, these defenses have required elements that must be proven in order for the defense
to be successfully established.
In every criminal prosecution, the defense attempts to negate the government’s proof of the required
elements of the underlying crime through failure of proof defenses. The defense may do this through
cross-examination of the government’s witnesses or by presentation of its own witnesses and evidence,
or both. For example, the defense may contend that sexual conduct was consensual in a sexual assault
case that requires proof of lack of consent. The defense may challenge the government’s proof of mens
rea required for the offense. The defense may challenge the government’s proof of identity by
providing alibi evidence that establishes the defendant was not actually or constructively present when
the crime was committed.
If the defendant is able to totally negate a required element of the government’s proof, he will be
acquitted of the crime (a “perfect” defense). If his proof establishes a less serious level of criminal
responsibility than the one charged (such as manslaughter versus murder due to a less serious mens
rea), he may be convicted of a less serious crime (an “imperfect” defense).
Justification defenses do not formally attempt to negate an element of the crime, but attempt to
establish that the otherwise criminal act was nevertheless permitted under the circumstances. These
justification defenses are supported by three rationales: public benefit, superior interest, and moral
interest. For example, a law enforcement officer is justified in using force in certain circumstances to
achieve the public benefit of taking a suspect into custody. A person confronted with unlawful force
may be justified in using force in self-defense to protect his moral rights. Occasionally, a person’s
commission of a criminal act may actually preserve superior interests that society values, such as in the
necessity defense.
Excuse defenses also do not attempt to negate an element of the crime, but attempt to establish a
legally recognized excuse to the otherwise criminal conduct in certain circumstances. These defenses
include insanity and duress. In excuse defenses, something about the offender or the circumstances of
his commission of the crime make him not morally blameworthy for the crime and thus not subject to
criminal responsibility for it.
In addition to these main categories of defenses, there are certain claims or defenses that a defendant
may raise that are not related to his blameworthiness for the crime (non-exculpatory defenses). These
defenses include double jeopardy claims that the government has already fully utilized a prior
opportunity to prosecute the defendant for a crime. They also include statutes of limitations that set a
time limit, starting from the date of the crime, for the government to initiate a prosecution against a
defendant for most crimes.
Some of these defenses can simply be asserted through defense challenges to the government’s
evidence. Others require or are strengthened by defense presentation of witness testimony or evidence
supporting them. Still others, usually categorized as affirmative defenses, require the defendant to
assume the burden of proof to establish them. The defense standard of proof regarding affirmative
defenses usually is at the preponderance of the evidence level, the lowest proof level, or sometimes at
the clear and convincing evidence standard, the middle proof level.
Module 4.2: Self-Defense and Defense of Others (pp. 62- 66)
Introduction
The law has long recognized a right to use a reasonable amount of force to defend oneself against
another’s use of unlawful force. This defense of self-defense can even include the use of deadly force in
certain circumstances. It also includes the potential use of force in defense of others. This module
examines the requirements for the justification defenses of self-defense and defense of others at
common law and under the Model Penal Code, as well as their more recent expansion in many states.
Learning Objectives
1. Understand the common law requirements for self-defense.
2. Understand the Model Penal Code requirements for self-defense.
3. Understand the contemporary expansion of the scope of self-defense. 4. Understand the defense of
others defense.
Self-defense at Common Law
Under the common law self-defense justification, a person was justified in using a reasonable amount of
force against another if he had a reasonable belief that force was necessary to prevent the imminent
use of unlawful force against him. Each of these elements of the defense had a specific meaning. The
requirement that a person claiming self-defense was responding to “unlawful” force reflected that
the person was not the aggressor (initiator of the use of force) and had not provoked the use of force by
the other person.
The requirement that the decision to use force and the amount of force used be “reasonable” indicated
both a subjective and objective standard. That is, both the person claiming the defense must have
personally believed that these elements of the self-defense justification were satisfied, and a
“reasonable person” in his circumstances would have done so as well.
The requirement that the justification was limited to a “reasonable amount of force” reflected that the
justification was limited to only that amount of force that was required under the circumstances to repel
the aggressor.
The requirement that the self-defense was used to prevent an “imminent” unlawful use of force reflects
that the unlawful danger is “about to happen” and that force may required to prevent it.
Consistent with the “reasonable belief that force was necessary” component of self-defense was the
general concept that there was a duty to retreat to a place of safety, if reasonably possible, rather than
use force in self-defense. There was, however, no duty to retreat from unlawful use of force in one’s
home (the “castle doctrine”).
If the elements of self-defense were established, it could potentially justify use of both non-deadly and
deadly force.
Self-Defense Under the Model Penal Code
The Model Penal Code authorizes the use of self-defense when a person believes that the force is
“immediately necessary” to protect himself against “unlawful force” by another on the “present
occasion.” The Model Penal Code approach departs from the common law definition by 1) requiring only
a subjective belief in the necessity of force (unless the person’s belief is recklessly or negligently formed
regarding some offenses), and 2) modifying the imminence requirement by requiring that the force used
is “immediately necessary” on the “present occasion.”
The Model Penal Code does not require a person to retreat before using non-deadly force and generally
does not require a person to retreat from his home or work place before using deadly force. The Code
does limit use of deadly force to circumstances when it is necessary to protect a person against death,
serious bodily injury or forcible or threatened kidnapping or sexual intercourse, and there is no
opportunity to safely retreat (subject to the exceptions above).
Contemporary Expansion of Self-Defense
The traditional duty to retreat before using self-defense has been significantly limited in many states
through application of the “castle doctrine” or contemporary “stand your ground” laws (but see State v.
James (p. 65) illustrating a contemporary application of the “castle doctrine”). Is there still a duty to
retreat before the use of self-defense in your state?
In recent years, some states have recognized a “battered spouse” or “battered child” syndrome
applicable to the self-defense requirement that the unlawful force be “imminent.” In these states,
evidence, including expert testimony, is authorized regarding a history of abuse to support a person’s
claim that use of force was reasonable under the circumstances, even if not inflicted in the context of an
immediate use of unlawful force by the other person.
Defense of Others
At common law, the justification of defense of others was limited to the protection of spouses and other
family members and employer-employee relationships. The Model Penal Code and most states do not
limit the defense of others justification to certain categories of persons.
The early standard used in this country for this defense was to require the protecting person to “stand in
the shoes” of the protected person in terms of eligibility for the defense justification. The Model Penal
Code and most states use an objective standard for the reasonableness of intervention on behalf of a
third person, while still requiring that all of the elements for the justification are met. If satisfied, the
defense of others justification permits use of force (including deadly force), but generally
does not create a requirement of intervention on behalf of the third person.
Module 4.3: Defense of Property and Habitation (pp.66- 68)
Introduction
The justification defenses include not only defenses involving use of force to protect against unlawful
force to oneself and others, but also against unlawful acts against property. When available, these
defenses are often more limited than those involving risk of harm to persons. This module examines the
availability of these justification defenses at common law and under the Model Penal Code, as well as
their more recent modifications in some states.
Learning Objectives
1. Understand the common law requirements for defense of property.
2. Understand the Model Penal Code requirements for defense of property.
3. Understand the contemporary scope of the defense of property justification.
Defense of Property at Common Law
Just as the common law recognized the possible use of force, including deadly force, in self-defense and
defense of others without retreat when unlawful force was threatened within the home, the common
law also recognized the possibility of use of force in defense of the home itself (the “castle doctrine”).
At common law, people were justified in using force, including deadly force, if they reasonably believed
that such force was required to prevent an unlawful imminent entry into the home. This justification had
potentially broad applicability because it did not require that the intruder pose any threat to the home’s
occupants or be armed.
Regarding other property, only non-deadly force could be used if reasonably necessary to protect a
person’s possessory interest in the property from immediate unlawful interference.
Defense of Property Under the Model Penal Code
The Model Penal Code justifies the use of non-deadly force if it is immediately necessary to prevent or
terminate an unlawful entry on land or unlawful taking of tangible property of the person or of another
person, or to re-enter the land or re- take the property. A request to desist from the unlawful
interference with property is required before force can be justified, unless the request would be useless,
dangerous, or would result in damage to the property.
Deadly force in defense of property is not justified unless 1) it is being used against a person’s
attempted unlawful dispossession of another person from his dwelling or 2) it is used against a person
who is attempting to commit arson, burglary, robbery, or other felonious theft or property destruction
crimes and who has used or threatened deadly force or the failure to use deadly force would expose the
person using force or others to a substantial danger of serious bodily injury. Use of devices to protect
property is not justified unless they do not create a risk of serious bodily injury or death, and their use is
reasonable under the circumstances.
Contemporary Modifications of the Defense of Property Justification
Over time, many states departed from the broad common law justification regarding use of force,
including deadly force, to prevent unlawful entry into one’s dwelling. Many states require something
more than the unlawful entry before use of deadly force is justified. For example, there may be an
additional requirement that the person reasonably believes that the intruder intends to commit a felony
or a felony involving violence. Other states, however, have recently expanded their justification of the
use of deadly force to address unlawful intrusions into the home. In your state, in what circumstances
are force and deadly force justified regarding persons who unlawfully enter into the home of another?
Regarding defense of property other than the dwelling, most states justify the use of force in certain
circumstances, but do not justify the use of deadly force. Most states also do not justify the use of
devices to protect property (such as spring guns or booby traps) that pose a risk of serious bodily injury
or death. What justifications does your state provide for the use of force to protect property other than
dwellings?
Despite these greater limitations regarding the use of force to defend property, these situations
sometimes escalate into those in which the justifications of self- defense and defense of others apply.
Module 4.4: Law Enforcement Justifications (pp. 68-70)
Introduction
Law enforcement officers are justified in using force, including deadly force, in carrying out their
enforcement activities under certain circumstances. Citizens are significantly limited in their ability to
use force to resist arrest. These law enforcement-related justifications are discussed in this module.
Learning Objectives
1. Understand the justifications available to law enforcement officers regarding use of force.
2. Understand the limitations on use of force to resist arrest.
Use of Force by Law Enforcement Officers
Law enforcement officers are generally justified in using non-deadly force if reasonably necessary to
prevent a crime, stop a crime being committed, stop a fleeing suspect, or make an arrest. In Tennesse v.
Garner (pp. 69-70), the U.S. Supreme Court placed some constitutional restrictions under the Fourth
Amendment on officers’ use of deadly force to prevent the escape or make an arrest of a suspect. The
Court limited the use of this justification to circumstances in which the officer reasonably believes that
the suspect poses a threat of serious physical harm to the officer or others based on the suspect’s
conduct (for example, if he is threatening the officer with a weapon) or based on the nature of the
underlying offense (for example, if it involves the infliction or threatened infliction of serious physical
harm). If feasible, some warning before the use of deadly force should be given. What limitations on the
use of force by law enforcement officers does your state have?
The Model Penal Code generally justifies the use of non-deadly force by a law enforcement officer if
immediately necessary to make a lawful arrest. Use of deadly force is restricted to making felony arrests
if the use of such force does not create a substantial risk of injury to “innocent” persons and the
underlying crime involves the use or threatened use of deadly force or there is a substantial risk that the
suspect will cause death or serious bodily injury if his arrest is delayed.
Use of Force to Resist Arrest
At common law, a person was authorized to use a reasonable amount of force (but not deadly force) to
resist an unlawful arrest. Although this position was initially widely adopted by American states, it is
now a minority position. Most states and the Model Penal Code do not justify the use of force to resist
an unlawful arrest ‒ and certainly not a lawful arrest. However, if the officer uses excessive force to
make the arrest, some states authorize a limited right of self-defense by the arrestee. What is your
state’s position regarding the use of force to resist an arrest?
Module 4.5: Necessity and Consent (pp. 70-74)
Introduction
This module examines the justification of necessity that permits the commission of usually a minor
criminal offense in order to avoid a greater harm. Consent usually operates as a defense when it negates
a required element of a crime. It can sometimes be used as a justification for certain assaultive crimes.
Learning Objectives
1. Understand the justification of necessity.
2. Distinguish between the defense and the justification of consent.
Necessity
Recognized at common law, the necessity justification is often called the “choice of evils” or “lesser of
two evils” justification. It justifies conduct that would otherwise be criminal when the conduct is
undertaken to prevent a greater harm. Traditionally the harm to be prevented was required to result
from the forces of nature, such as throwing another person’s property overboard to avoid a boat sinking
in a storm. Contemporary interpretations of this requirement have been expanded to include responses
to medical emergencies or other external events, such as running a red light to get to the hospital more
quickly in a medical emergency.
To warrant the justification of necessity, typically there must be a threat of imminent injury to a person
or property, there is no less harmful alternative to avoid the threat than the commission of the crime,
the commission of the crime is less harmful than the threatened harm, and the person engaging in the
act did not create the peril to be avoided by the criminal act.
All of the states (by statute or application of the common law) and the Model Penal Code recognize the
necessity justification, as described above. Most also require that the legislature has not excluded the
assertion of necessity in the circumstances presented. How does your state define the necessity
justification? Why did the court in Commonwealth v. Leno (pp. 71-72) find that the defendant was not
justified under the necessity justification to possess and distribute hypodermic needles and syringes to
prevent AIDS? Do you agree? Why or why not?
Consent
At common law and today, consent is most frequently asserted as a defense to a crime that requires a
lack of consent, such as sexual assault. If a victim’s consent can be established, it will negate a required
element of the crime and result in a defendant’s acquittal. To establish “effective” consent for this
purpose, the consent must be voluntary, it must be by a person who is legally capable of giving and
authorized to give consent, and it must be free of fraud as to the nature of the act for which consent is
given.
For crimes that do not require lack of consent as an element of the crime, a person’s consent to the
criminal act (or forgiveness following the act) generally does not constitute a defense to or justification
for the crime. The Model Penal Code and some states, however, recognize consent as a justification to
certain categories of assault involving minor physical contact or injury. These typically include conduct
resulting from sporting activities and medical treatment to which consent has been given (compare to
the facts in Helton v. State, pp. 73-74)).
Chapter 5: Excuse Defenses
Module 5.1: Duress (pp. 79-80)
Introduction and Learning Objective
Duress is an excuse defense reflecting a defendant’s lack of volitional capacity. In this case, an external
threat or force from another reasonably deprives the offender of his free will to refrain from committing
the crime. As a result, he lacks the moral blameworthiness otherwise associated with committing the
crime. The learning objective of this module is to understand the elements of the duress defense and its
application.
Elements of Duress
At common law, a person was excused from criminal liability if he committed a crime to avoid a threat
of imminent death or bodily harm. Because the excuse of duress involves a delicate balance between
recognizing the impact on an offender of extreme external forces and foregoing attaching criminal
responsibility for a crime, the defense of duress has several elements that must be satisfied before it can
be successfully asserted.
The duress defense typically requires that a defendant has a reasonable belief of an imminent threat of
death or serious bodily harm by another against the defendant (or another person) that causes him to
commit a criminal act. The defendant’s actions are judged based on a reasonable person standard. The
threat of serious bodily harm or death must be imminent or immediate. It must be operating on the
defendant at the time of the crime. The threat comes from another person or persons (unlike necessity).
If the threat is against a third person rather than the defendant, states vary as to whether it must be a
family member or can be any third person. The defendant cannot have placed himself in the position of
peril and generally must have exhausted available reasonable alternatives to engaging in the criminal
act. Typically, duress cannot be asserted as a defense to intentional criminal homicides. In some states,
it can reduce the level of homicide culpability.
The Model Penal Code defines the affirmative defense of duress to require coercion of the criminal act
by the use or threat of “unlawful force” against the defendant or another person that a reasonable
person would not have been able to resist. The defendant generally cannot have placed himself in a
position of peril. How is the duress defense defined in your state? What limitations are there on the
assertion of this defense?
Module 5.2: Intoxication (pp. 80-82)
Introduction and Learning Objective
Intoxication involves the impairment of a person’s mental or physical faculties due to the introduction
of an intoxicating substance, such as alcohol or drugs, into the body. The impact that intoxication has on
criminal liability depends significantly on whether the intoxication is voluntary or involuntary, as well as
the nature of the underlying crime that is committed under the influence of the intoxicating substance.
The learning objective of this module is to understand the varying impact that intoxication can have on
criminal liability.
Voluntary Intoxication
At common law, voluntary intoxication was not recognized as a defense to crime. In this country, some
states permit voluntary intoxication to be used as a defense if it negates a specific intent required for a
crime (but not a general intent). The Model Penal Code permits voluntary intoxication to be used if it
negates a purposeful or knowing mens rea (but generally not lower levels of mens rea). However, the
contemporary trend is to return to the common law position that voluntary intoxication cannot be
asserted as a defense to any crime. In Montana v. Engelhoff, the U.S. Supreme Court upheld a state
statute that prohibited the use of voluntary intoxication to disprove mens rea. Does your state permit
voluntary intoxication to be used as a defense to any crime?
In State v. McClenton (p. 82), the appellate court rejected the defendant’s involuntary intoxication claim
to robbery based on his assertion that the marijuana that he had voluntarily smoked had been laced
with PCP without his knowledge. Why did the court reject the defendant’s claim? Do you agree?
Involuntary Intoxication
Involuntary intoxication refers to circumstances in which a person is coerced to ingest an intoxicant,
accidentally ingests it, has an extreme and unanticipated reaction to a prescribed substance, or ingests
the intoxicant based on a fraudulent misrepresentation of its nature. Some states permit involuntary
intoxication as a defense if it negates a specified level of mens rea for the crime. Other states limit its
use to those circumstances in which it establishes the elements of a “temporary” insanity defense. For
example, the defendant did not appreciate the wrongfulness of his conduct due to his involuntary
intoxication. The Model Penal Code permits involuntary intoxication to be used to establish the
elements of an insanity defense. To what extent does your state permit involuntary intoxication to be
used as a defense to crime?
Module 5.3: Entrapment (p. 83)
Introduction and Learning Objective
In the entrapment defense, the defendant’s conduct is excused because of the excessive conduct of the
government regarding the commission of the crime. The learning objective of this module is to
understand the elements of the entrapment defense.
Elements of the Entrapment Defense
The entrapment defense did not exist at common law. In fact, police routinely provide opportunities to
offenders to commit crimes through undercover work regarding prostitution, drug offenses, and other
crimes. However, in a series of decisions beginning with Sorrells v. United States in 1932 (p. 83), the U.S.
Supreme Court recognized that government efforts to detect crime could sometimes go too far and
actually induce a person, who was not otherwise predisposed to do so, to commit a crime.
The entrapment defense can be asserted when a law enforcement officer or his agent induces or
instigates a crime by creating an intent to commit the crime in a person who was not otherwise
predisposed to commit the crime. The entrapment defense is sometimes defined with a focus on the
defendant’s predisposition to commit the crime (the subjective test) or on the government’s conduct in
inducing the crime’s commission (the objective test). However, both characteristics are generally found
in the entrapment definition or considered concerning entrapment.
Evidence concerning the government’s “entrapping” conduct could include the length of time and
extensive nature of its inducing conduct; repeated appeals to friendship, sympathy, or weaknesses
concerning the defendant; use of government coercion or threats; misrepresentations as to the criminal
nature of the conduct; and degree of government involvement in carrying out the crime.
Evidence concerning the defendant’s predisposition could include his prior criminal record and activities,
his current criminal activities, and the degree of his willingness to commit the crime.
The Model Penal Code definition focuses on the government’s conduct, but places the burden on the
defendant to establish entrapment to the court (not a jury) and does not permit the defense to a crime
involving or threatening bodily injury to someone other than the “entrapper.” How does your state
define entrapment?
Module 5.4: Age (pp. 83-87)
Introduction and Learning Objective
An offender’s young age is the type of characteristic that can render him less morally blameworthy for
the commission of a crime. This module examines the evolution of the treatment of an offender’s young
age as an excuse for his criminal conduct. The module’s learning objective is to understand the role that
young age can play in determining criminal responsibility.
Young Age as a Defense to Crime
Over time, the common law recognized that very young persons might be incapable of forming criminal
intent and thus would be excused from criminal responsibility. This defense of infancy operated through
a series of presumptions. Youth under age 7 were conclusively presumed to be incapable of forming
criminal intent and thus were exempt from criminal responsibility. There was a rebuttable presumption
that youth aged 7-14 could not form criminal intent, permitting the government to overcome the
presumption with proof of the specific offender’s capacity. There was no presumption of infancy
incapacity as to crimes committed after a youth was 14. The State v. Guevara case (p. 85) illustrates the
contemporary use of infancy-related presumptions in Washington. Do you agree that the government
successfully rebutted the presumption regarding capacity here? Why or why not?
Although most American states no longer use these common law presumptions, they have maintained
the “spirit” of the infancy defense by establishing a separate juvenile justice system to adjudicate and
punish otherwise criminal acts committed by juveniles. Each state sets the age range for its juvenile
justice system jurisdiction. For example, the Texas juvenile justice system handles conduct committed
when a juvenile is between 10 and 17 years old (Texas Family Code §51.02). The upward boundary for
states’ juvenile court jurisdiction typically ranges from 16 to 18 years old. It is 16 in the Model Penal
Code. The lower age boundary also varies.
If a child engages in conduct when he is younger than the lower age boundary, he is exempt from
adjudication in any justice system and thus excused from criminal responsibility. If a child is adjudicated
within the juvenile justice system, the punishments are typically lower than they would potentially be
for the same conduct in the adult criminal justice system. This reduced punishment potential within the
juvenile justice system also is consistent with the spirit of the infancy defense and a reduced level of
moral blameworthiness.
Also reflecting the reduced moral blameworthiness associated with young age, the U.S. Supreme Court
has prohibited, as cruel and unusual punishment, the imposition of the death penalty on juveniles who
commit a capital crime when they are under 18 years old (Roper v. Simmons); the mandatory imposition
of a sentence of life imprisonment without parole on a juvenile who commits homicide when he is
under 18 (Miller v. Alabama); and a sentence of life imprisonment without parole on a juvenile who
commits a non-homicide crime (Graham v. Florida).
Over the last several decades, however, states have adopted or expanded mechanisms to transfer
jurisdiction to the adult courts regarding juveniles who engage in serious conduct. These transfer or
waiver provisions can subject juveniles as young as 13 in some jurisdictions to be subject to adult
prosecutions and adult punishments (except as provided above; see chart on p. 86).
Module 5.5: Insanity (pp. 87-90)
Introduction and Learning Objective
The insanity defense recognizes that a defendant’s mental illness or impairment may excuse his
otherwise criminal conduct. Over time, the legal standard for this defense has been defined in various
ways. The learning objective of this module is to understand the core concepts associated with the
insanity defense and their application.
Origins of the Insanity Defense
Initially insanity was not recognized as a defense at common law. Subsequently, “madness” was
recognized as a complete defense to crime. However, it was not until the 1843 case of M’Naghten in
England that the insanity defense was formally defined. What became known as the M’Naghten test for
insanity required that, at the time of the crime, the defendant was suffering from a defect of reason
from a disease of the mind, as a result of which he did not know the “nature and quality of his act” or
did not know “he was doing wrong.”
Contemporary Insanity Definitions
In this country, insanity defense definitions continue to have two main elements: a mental health
component and some impact of this mental health component on a defendant’s commission of the
crime. A majority of American states continue to use some variation of the M’Naghten test.
While all American jurisdictions with the insanity defense maintain a requirement of a mental health
component (for example, a mental disease or defect or a severe mental disease or defect), some states
have adopted other definitions of the impact on conduct component of the definition. These include an
inability to resist the criminal conduct due to the mental disease or defect (“irresistible impulse” test)
and the criminal conduct being the product of the mental disease or defect (Durham or “product” test).
The Model Penal Code definition is the lack of “substantial capacity” to “appreciate the criminality
[wrongfulness]” of one’s conduct or “conform [one’s] conduct to the requirements of law” due to
mental disease or defect.
Alternatives to the Insanity Defense
Since its formal definition in the M’Naghten case, the insanity defense has remained controversial. This
remains the case despite the fact that the insanity defense is not frequently asserted and it is rarely
successful when the government contests it. Despite the public perception that a not guilty by reason of
insanity verdict has no consequences attached to it, defendants can remain involuntarily hospitalized as
a result of the verdict until they are no longer mentally ill or no longer a danger to themselves or others
(subject to periodic reviews of their condition). This period of involuntary hospitalization can sometimes
last at least as long as the potential punishment might have been on the underlying crime.
Successful assertions of the insanity defense in high profile cases, such as that by John Hinckley in
connection with his assassination attempt on President Reagan, however, continue the controversy
surrounding the defense. Two states (Idaho and Utah) have actually abolished the insanity defense, but
continue to permit evidence of mental illness to the degree relevant to proof of any required mens rea.
The U.S. Supreme Court has stated that the Constitution does not require a state to have an insanity
defense (Clark v. Arizona).
Some states and the Model Penal Code recognize the impact of mental illness through the availability of
a diminished capacity showing that can reduce the level of culpability for certain crimes generally based
on a lower level of mens rea. Other states have added an alternative verdict of “guilty but mentally ill.”
This verdict subjects a defendant to potential punishment, but sometimes with accompanying treatment
for his mental illness.
Criminal Competency vs. Insanity
A defendant who is asserting an insanity defense often also asserts that he is not criminally competent
based on his mental illness. The test for criminal competency is that the defendant has “sufficient
present ability” to consult with his lawyer with a “reasonable degree of rational understanding” and that
he has a “rational and factual understanding” of the proceedings. If a defendant is found to be criminally
incompetent, the proceedings against him are delayed until his competency is restored via treatment or
otherwise. If competency cannot be restored after a reasonable period of time, criminal proceedings are
often deferred or suspended in favor of civil commitment proceedings.
Module 3.5: Ignorance and Mistake (pp. 52-55)
Introduction and Learning Objective
A defendant’s ignorance or mistake can serve as a defense to criminal conduct in very limited
circumstances. The learning objective of this module is to identify those circumstances in which such a
defense may exist.
Ignorance or Mistake of Law
The common law principle that “ignorance of the law is no excuse” for criminal conduct has generally
been maintained in this country, despite the sometimes complex nature of contemporary criminal law.
In extremely rare circumstances, the U.S. Supreme Court has recognized that ignorance or mistake of
law could serve as a defense when a defendant had received inadequate notice of the referenced law to
satisfy due process, when a defendant’s mistake about the law negated the required element of a
“willful” intent to commit the tax-related crime, and when a defendant had reasonably relied on police
instructions that led to a violation of law growing out of picketing activity. The Model Penal
Code recognizes an ignorance of the law affirmative defense based on reasonable lack of notice of the
law or reasonable reliance on an official statement of the law. It also recognizes a defense if the
ignorance of the law negates a required mens rea for the crime.
Ignorance or Mistake of Fact
Ignorance or mistake of fact can potentially serve as a defense if it negates a required intent for the
crime. Usually there is a requirement that a defendant’s mistake of fact be reasonable. Also, this
defense will not be available if the facts as the defendant mistakenly perceives them still constitute a
crime. The Model Penal Code generally incorporates these principles and limitations into its ignorance
or mistake of fact defense definition. What mistake of fact did the defendant in People v. Lawson (pp.
54-55) claim to his theft conviction? Why did the appellate court find that there was no error in the jury
instructions? Do you agree?