criminal - kurtz

Criminal Fall 2003 Outline
Anisa Abdullahi
Sources of criminal law
a. Statutes: Legislature defines what is against the law
b. Constitution: Defines what is permissible in law
c. Administrative Agencies: Create regulations for particular industries
d. Courts: Create common-law rules
Basic elements of every crime
a. A voluntary act (actus reus)
b. Culpable intent (mens rea)
c. Concurrence between the mens rea and the actus reus
d. Causation of harm
Model Penal Code
a. Adopted in 1962 by the American Law Institute—judges, lawyers, legal scholars, etc.
i. To clarify and improve the law
ii. A rational way of looking at the law
iii. Restatement was too broad
b. It is the law nowhere
c. MPC says there are three types of elements to a crime:
i. Conduct—all crimes
ii. Circumstance—some crimes
iii. Results—some crimes
d. Divided into two parts:
i. First part has general provisions with definitions, mens rea, defenses, etc.
ii. Second part details the criminal codes dealing with actual crimes like theft, rape, arson, etc.
Theories of punishment
a. Utilitarianism: Punishment is justifiable because it promotes the interest of society; it achieves some
other good—maintaining social order by preventing crime (possible problem: assumes people will/can
be deterred or rehabilitated); forward-looking
i. Deterrence (General): To maintain social order
1. Concentrates on preventing future crimes by warning society not to do it
2. Punishment designed to minimize or eliminate anti-social behavior
3. Provides an indirect warning of consequences through the example criminal if they
too choose to violate the law
ii. Rehabilitation (Specific deterrence): To reform the person who committed the crime
1. Concentrates on preventing future crimes by reforming or “fixing” the criminal
2. Trying to entice the offender away from a life of crime
iii. Incapacitation: To keep those who don’t follow the law out of society
1. Idea is that you can’t commit a crime if you are locked up—specific prevention
2. Protects the innocent from those who have proven themselves to be dangerous
b. Retribution: Punishment is justified on the grounds that wrongdoing merits punishment; doesn’t
depend on the result (unlike the way utilitarian theories are forward-looking)
i. The offender deserved the punishment because of wrong behavior (legally, not necessarily
ii. Idea of an eye for an eye
1. Makes the victim or victim’s family feel better
iii. Not designed to have an impact on anyone else but the criminal
iv. Many will say that this is how criminal punishment began—historical rather than modern (but
people see it as a good theory)
Levels of punishment
a. Necessary to punish in proportion to the seriousness of the crime:
i. If the punishment is the same for all crimes, people will be more likely to commit the more
serious ones
ii. If the punishment is too severe, the jury will be eager to acquit for small crimes
b. Retribution is not only a rationale for punishment, but also a limit on punishment
Burden of proof
a. Burden of production—to first bring in particular evidence
i. D has burden of production for an affirmative defense like insanity or self-defense
1. This then shifts to ultimate burden of persuasion back to the state
ii. State has burden of production for mens rea
b. Burden of persuasion—ultimate task of convincing the finder of fact (usu. jury)
i. The state has the burden of proving that D acted culpably with regard to all material elements
of the crime (beyond a reasonable doubt)
ii. If it’s a tie, D wins
e. Lenity principle
i. Interpreting statutes such a way so that if there is ambiguity in the statute, favor goes to D.
ii. Reasons for this principle:
1. Want to avoid wrongful convictions
a. Better 10 go free than 1 innocent go to jail
2. Puts the burden of proof on the state as it should be
a. State has to prove beyond a reasonable doubt
b. D only has to provide a reasonable doubt
3. Once D is acquitted, no double jeopardy
a. Prevents state from appealing an acquittal
Actus Reus
Two Levels
a. General: Every crime must have an act
b. Specific: The specific act required for a particular crime
Why have an actus reus requirement?
a. Evidentiary function:
i. Bad act is the best way to tell what the bad thoughts were—objective manifestation of bad
ii. Since D isn’t required to testify, bad act might be the best way to get information
b. Act makes the actor more dangerous than just having thoughts
i. We don’t want to punish people for things they think but don’t actually do
ii. Provides a place to repent/turn back (before acting): locus poenitentiae
c. People need to know what bad acts are in order for deterrence to work
d. Promotes the idea of culpability by holding people responsible for their acts
e. Proctor: D had not crossed the line to committing an overt act when he simply “kept” a place with the
intent to sell liquor. (If he had actually possessed liquor it might have been different)
6 Elements of Actus Reus
a. Past—has already occurred
b. Voluntary—D chose to do it
c. Bad/Wrongful/Dangerous
d. Conduct—not just thoughts
e. Specified in advance
f. By statute
a. Usually an actus reus is an affirmative kind of behavior
b. Generally the law does not punish the failure to do something
i. Misfeason—doing something wrong
ii. Nonfeason—not doing something
c. Some states do have laws that make people act, but for the most part we don’t want to make people do
things they don’t want to do
i. Autonomy argument:
1. People have the right to live their lives as they choose, with the right to walk away as
well as the right to be a hero
2. Obligating people to do something leaves them without the option to act out of the
goodness of their hearts
ii. Morality argument:
1. State doesn’t have the right to define morality
2. There is a difference between doing something bad and not doing something good
iii. Mechanical argument:
1. Difficult to determine who would be responsible
2. Hypo: Burning building with child inside while people were walking by
d. Exception to the general rule: People who have a legal duty
i. Everyone has to pay income taxes
ii. Jones: When a woman didn’t feed the baby she was talking care of for her friend, the court
reversed for a new trial because jury was not instructed to find a legal duty before convicting
for involuntary manslaughter.
iii. Examples of when there might be a legal duty (from Wisconsin):
1. Statute imposes it
2. Status relationship—parent and child
3. Contractual duty
4. Voluntarily assumed care (sequester)—telling everyone you’re going to do it
iv. Seems we can punish omissions
a. Courts generally read this requirement into statutes as it is rarely explicitly stated, but the MPC does
explicitly state that it is required
b. Lack of voluntariness negates the actus reus element
i. Newton: D was carrying a gun and ammunition on a plane traveling from Luxembourg to the
Bahamas which had to land in NY. Court ruled that he did not voluntarily violate the NY
statute that made carrying the weapon and ammunition illegal.
c. MPC § 2.01: Requirement of Voluntary Act
i. (1) A person is not guilty of an offense unless his liability is based on conduct which
includes a voluntary act…
ii. (2) The following are not voluntary acts within the meaning of this Section:
1. (a) a reflex or convulsion
2. (b) a bodily movement during unconsciousness or sleep
3. (c) conduct during hypnosis or resulting from hypnotic suggestion
4. (d) a bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual
iii. …(4) Possession is an act, within the meaning of this Section, if the possessor knowingly
procured or received the thing possessed or was aware of his control thereof for a
sufficient period to have been able to terminate his possession.
d. Insanity v. Automatism
i. Insanity is rarely used as a defense
1. Usually not very successful
2. Burden of proof on D
3. Go to the asylum if proven
ii. Automatism negates the actus reus
1. D raises a reasonable doubt with outside evidence (still hard to prove)
2. A version of involuntariness
3. Burden of proof on the state to override doubt
4. Go home if proven
5. (Huey) Newton: D shot officer after being shot in the abdomen. Court let the jury
consider that D acted out of “reflex shock.”
e. Lack of Voluntariness Defense
i. Not very broad in scope
ii. Same thing as saying “I didn’t do it.”
iii. Some acts are such that the philosopher would say they were involuntary, but the law will say
they are voluntary
1. For example: Man stealing bread in order to feed his starving kids
a. Involuntariness requires no choice, this is just a bad choice between stealing
and letting kids starve
2. However, man with a gun to his head is acting under duress and has a defense—but
this is not an involuntariness defense
3. Decina: D had epileptic seizure while driving and killed four people on sidewalk.
Court ruled that he was criminally liable because he knew he was subject to attacks
and deliberately made the choice to drive.
4. Martin: D was on highway manifesting an intoxicated condition. Court ruled that he
was involuntarily and forcibly carried there by the police and reversed the conviction.
5. Johnson: D took cocaine while pregnant and was convicted for delivering drugs to
her baby just after it was born and before the umbilical cord was cut. Court reversed
because there was inadequate evidence of delivery, even if there was an act there was
no proof it was voluntary, and even if it was voluntary the legislature had said it didn’t
want to punish mothers for delivering crack babies. (illustrates the principle of lenity)
f. Time Framing: Sometimes our judgment about what is going on is affected by exactly how broad or
narrow a picture we take of the episode.
i. If we take a short/narrow picture: Instant behavior looks more involuntary
ii. If we take a long/broad picture: Long-term behavior looks more voluntary
1. Example: In Decina case, the seizure looks involuntary but when you look back to see
that he chose to drive knowing he had a condition.
g. Involuntariness vs. Lack of Mens Rea
i. Involuntariness says, “I didn’t choose to act.”
ii. Lack of mens rea says, “I chose to act, but I didn’t mean to…”
1. As a practical matter, it isn’t really going to be any different in terms of what happens
to D who comes out not guilty if it was involuntary or if there is a lack of mens rea
iii. Closely tied to a lack of mens rea defense in that in these cases D could have recast his
argument to say that he didn’t intend to do it. However, arguing a lack of mens rea necessarily
means you concede the actus reus.
h. Status Crimes
i. Generally, a person cannot be punished for mere “status.”
1. Narrow interpretation: Status is not an act
2. Broader interpretation: Status is not a voluntary act
ii. Robinson: D was convicted for being addicted to narcotics and argued that it was
unconstitutional to do so. Court ruled that an addiction was more like having an illness and not
an actual act, reversing the conviction. (Dissent argued the slippery slope—next case will be
the addicted user, then the addicted user who had to steal, etc.)
1. Broad interpretation—the Constitution requires voluntariness and you can’t be
convicted for something you have no control over
2. Narrow interpretation—the Constitution doesn’t necessary require a voluntary act, but
it requires an act
3. Note two rationales for the decision:
a. Involuntary conduct cannot be punished. D could not stop being an addict
without medical assistant.
b. Punishment must be for past, not future, conduct. D’s addiction implied a
desire or propensity to commit punishable acts in the future.
iii. Powell: D convicted for being intoxicated in a public place. Court upheld the conviction
because he wasn’t charged with an alcoholic (status) but rather for being in a public place
while drunk (act).
1. In line with the narrow view of Robinson because it required an act.
2. But also looks like the broad view in that it must be saying D acted voluntarily or it
would be reversing the trial court’s finding that he had a compulsion to appear in
Mens Rea
Levels of culpability
a. Virtually every crime requires some mental element or culpability with regard to the actus reus be
proved beyond a reasonable doubt (exception: strict liability crimes)
b. Common law uses many different terms for defining mens rea (very messy)
i. Mens rea
ii. Culpability
iii. Criminal intent—misleading because it suggests we only punish people when the intend; we
sometimes punish people who can honestly say they didn’t intend to do the crime
c. MPC §2.02(2): Kinds of Culpability Defined (edited—full on page 1170)
i. Purposely- A person acts purposely with respect to an element of an offense when it is his
conscious object to engage in conduct of that nature or to cause such a result or he is
aware of, believes, or hopes such circumstances exist.
ii. Knowingly- A person acts knowingly with respect to an element of an offense when he is
aware that his conduct is of that nature or that such circumstances exist and he is aware
that it is practically certain that his conduct will cause such a result.
iii. Recklessly- A person acts recklessly with respect to an element of an offense when he
consciously disregards a substantial and unjustifiable risk that the element exists or will
result from his conduct. The risk must be such that its disregard involves a gross
deviation from the standard of conduct that a law-abiding person would observe in the
actor’s situation.
iv. Negligently- A person acts negligently with respect to an element of an offense when he
should be aware of a substantial and unjustifiable risk that the element exists or will
result from his conduct. The risk must be such that his failure to perceive it involves a
gross deviation from the standard of care a reasonable person would observe in the
actor’s situation.
d. For virtually all crimes, knowing behavior is punished to the same degree as purposeful behavior.
e. Chart on page 217 regarding four levels of culpability (three types of elements: conduct,
circumstances, or result)
i. Purposely
1. Circumstance: He is aware of such circumstances or hopes they exist
2. Result: It is his conscious object to cause such result
3. Conduct: It is his conscious object to engage in conduct of that nature
ii. Knowingly
1. Circumstance: He is aware that such circumstances exist
2. Result: He is aware that it is practically certain that his conduct will cause such a
3. Conduct: He is aware that this conduct is of that nature.
iii. Recklessly
1. Circumstance: He consciously disregards a substantial and unjustifiable risk that the
material element exists
2. Result: He consciously disregards a substantial and unjustifiable risk that the material
element will result from his conduct. (gross deviation from the standard conduct of
law-abiding persons in this situation)
iv. Negligently
1. Circumstance: He should be aware of a substantial and unjustifiable risk that the
material element exists.
2. Result: He should be aware of a substantial and unjustifiable risk that the material
element will result from his conduct.
f. Default level of culpability—Recklessly (at least)
i. Thus if a legislature wants negligence to be the mens rea, it must expressly state so. (think
objective vs. subjective culpability)
ii. MPC § 2.02(3) “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 with respect thereto.”
g. MPC § 2.02(4): Stated culpability applies to all material elements of the crime unless otherwise
h. MPC § 2.02(5): If a certain level of culpability is required, any higher level of culpability will
suffice. (If recklessness is required, then purpose or knowledge works just as well)
i. MPC § 2.02(7): If you know to a substantial certainty that something is true, the fact that you
don’t know for sure (avoid finding out—willful blindness) that it’s true is not a defense.
j. MPC § 2.02(8): Requirement of willfulness is satisfied by acting knowingly.
k. Subjective v. Objective Culpability
i. It might be more accurate to show that there is a jump between the first three levels and
negligence. Some argue negligence should not even be criminal.
ii. There is a difference between punishing someone subjectively because of what evilness was in
his mind—purpose, knowing, reckless—and objectively because of what a reasonable person
would have had in his mind—negligence.
iii. The negligent person was unaware of the risk and is not evil in the same way as the other three
Why have a mens rea requirement?
a. Punishment wouldn’t seem fair if the person didn’t mean to do it
b. If you punish people without requiring fault, it wouldn’t really deter people from doing bad things
since they can be punished for acting “innocently”
c. Faulkner: D was trying to steal rum and light a match which burned down the ship. Court ruled that
there had to be some mental element attached to the setting of the fire beyond that for stealing rum.
Normative v. Descriptive
a. Normative (value-laden/emotional):
i. English student would say that it means “evil”
b. Descriptive (objective)
i. Statute would say it means “intentional”
General v. Specific Intent
a. General: Intending to do an act that leads to the consequences; refers to the broader question of D’s
blameworthiness or guilt
b. Specific: Intending the resulting consequences; refers to the mens rea requirement of any crime
Exception: Strict Liability
a. Three ways to define strict liability
i. Pure strict liability: No culpability (mens rea) is required for any element of the crime
ii. Impure (partial) strict liability: Mixture between culpability and no culpability requirements
for different elements of the crime
iii. Substantive strict liability: Prosecution and conviction where there is no moral culpability
1. Example: Driving over the speed limit—only reason we think it is a bad thing is
because it is against the law
a. Mala in se—wrong in itself
b. Mala prohibitum—wrong because of statutes
b. Under strict liability, acting reasonably (off the chart) is no defense. Perfection is required in order to
avoid conviction.
c. Arguments for strict liability
i. Retribution: D did something wrong and should be punished
ii. Burden of proof: Hard to prove the mental state of D
iii. To protect the rights of the people being injured.
iv. Deterrence:
1. Specific: D will act more carefully next time.
2. General: Others will act more carefully based on example set by punishing D
v. Incapacitation: Even if D had no mental culpability, at least he won’t do it while in jail.
vi. Forces people to check out what the laws are, otherwise they might remain ignorant on
d. Arguments against strict liability
i. Deterrence won’t work because people will know that they can be punished even if they act
carefully or “innocently”
ii. Punishment without blameworthiness seems immoral and wrong
iii. If you look really closely at the situation, there probably was something D did wrong anyway.
e. MPC’s take on strict liability
i. MPC § 2.05(2)(a): “When absolute liability is imposed with 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..”
ii. MPC § 1.04(5) says a violation is punishable only by a fine or other civil penalty.
iii. MPC (and some states) has a big problem with strict liability
f. Complicity: MPC § 2.06(1) Liability for Conduct of Another
i. “A person is guilty of an offense if it is committed by his own conduct or by the conduct
of another person for which he is legally accountable, or both.”
g. Note that the MPC says a strict liability offense is not a crime, but a violation
i. MPC is reluctant to accept strict liability because punishment without blameworthiness seems
immoral and wrong
h. Balint: D convicted for selling opium derivative without proper documentation even though he did not
know them to be as such. Court ruled that if there was a greater good, punishing people without
“scienter” (knowledge) is allowed.
i. Kurtz argues this is backwards because the mala in se crimes require culpability while
regulatory offenses are strict liability—more dangerous crime is harder to prove.
ii. The court’s argument was that the regulatory violations could affect many people—public
welfare offenses
i. Dotterweich: D charged with vicarious liability for his company’s mislabeling of drugs and court
upheld conviction.
i. Kurtz calls this strict liability on strict liability because both the worker and D were strictly
j. Morrisette: D took air force bomb casings from bombing range and sold them for profit, thinking
they belonged to no one. Court ruled that this was not the type of crime that merited strict liability—
“knowingly converts government property” and that he had to know it was government property in
order to be convicted.
k. X-Citement Video: Supreme Court upheld sexual exploitation of minors act but said that culpability
was required with regard to the minor’s age—D must have scienter of child’s youth.
l. U.S.D.C.: D produced a depiction of sexual performance of a minor and statute did not contain the
word “knowingly” because legislature had removed it. Court ruled D would have a defense if he could
present evidence of mistake with regard to her age.
Mistake of Fact
a. Generally, a mistake of fact is a defense if it negatives the mens rea requirement for any material
element of the offense—MPC 2.04(1)
b. Ignorance differs from mistake (i.e. not knowing something vs. knowing something wrong), but it can
also serve as a defense if it negatives the mens rea requirement
c. To determine if mistake or ignorance negatives the mens rea requirement, the court must look at:
i. The wording of the applicable statute, noting two rules of construction:
1. It is assumed that the offense is not strict-liability offense unless the statute says
2. If the statute requires a particular level of culpability with regard to one material
element of the offense, it is assumed that the level of culpability is required for each
material element of the offense (distributive culpability rule)
ii. If the statute is silent w/ regard to culpability, assume that the statute requires the default level
of culpability (recklessness under MPC)
d. Ryan: D was convicted of attempting possession of a hallucinogen weighing more than 625 mg, even
though he argued he did not know how much there was. Court reversed because the statute didn’t have
a specific reference to culpability for knowing the weight and thus it would have to construe in D’s
favor. (notions of lenity, anti-strict liability)
e. Even an unreasonable mistake about a material element of a crime can negative the culpability
required in regard to an element of the crime (i.e. the age of a minor in statutory rape case)—IS THIS
i. MPC § 2.04(1)(a): “Ignorance or mistake as a matter of fact or law is a defense if (a) the
ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence
required to establish a material element of the offense.”
ii. But the more unreasonable the mistake is, the more likely the jury is going to find D acted
recklessly, rather than mistakenly.
1. If the mistake is particularly unreasonable, the jury might even find D acted
iii. What is a reasonable mistake?
1. Reasonable to mistake age when girl shows you an ID, looks the age, friend tells you
she’s that age
2. Unreasonable to mistake age when you think she’s 16 and you’re picking her up at
middle school
f. Lesser moral/legal wrong
i. Opposed to the notion of mens rea is the notion that if you’ve done something wrong the fact
that it turns out that you’ve done something even worse than that means that because you’ve
done the wrong you should be punishable for the worse thing and not the lesser wrong you
thought you were doing.
1. Kurtz took a hat he thought was worth $6 (petty theft), but it turns out to be a rare hat
worth 5 billion dollars (grand theft)—if you subscribe to the lesser legal wrong
doctrine, you would say that he knew he was doing something wrong and can be
convicted for grand theft.
a. He had the mens rea for petty theft
b. It’s his problem that he ended up committing grand theft
c. Normally the state would have to prove a mens rea for the greater crime
2. Everybody knows you shouldn’t take young girls from their family, Kurtz thought she
was 17 (which if she had been would not have been a illegal), but she turns out to be
13 (which is illegal)—the lesser moral wrong doctrine would say there is no problem
with conviction for the crime because he knew he was committing the moral wrong
3. These are ways to convict of a crime without proving the requisite mens rea.
ii. Prince: D took a girl under 16 years of age away from her home, but she was actually 14.
Judge Blackburn said his mistake about her age was not a defense because there is no mens
rea requirement with regard to her age. Judge Brett says that if he is non-culpable with regard
to her age, he is not guilty—lesser legal wrong. Judges Bramwell and Denman say the act is
immoral in itself to take a girl from her family and thus he is guilty—lesser moral wrong.
Conviction was upheld.
g. Lima: Court decided to follow MPC and say that the default requirement for mens rea was
recklessness. Shows that 2.02 is the most influential provision in the MPC.
h. Guest: D were charged with statutory rape of a 15 year old, but argued they thought she was 18. Court
allowed a defense of reasonable mistake with regard to her age.
i. There is such a thing as a reckless mistake
Mistake of Law
a. Traditionally, mistake of fact is a defense but mistake of law is not.
i. “Ignorance of the law is no excuse”—Everyone is presumed to know the law
1. Encourage people to know the law
2. Don’t want to encourage people to remain ignorant
3. Don’t want unequal treatment for the mistaken and the nonmistaken
4. Baker: D argued he did not know it was against the law to peddle counterfeit Rolex
watches. Court knowledge of the illegality of the behavior is not required and thus
lack of knowledge is not a defense.
ii. Argument for why it should be a defense:
1. It is unfair because it presumes everyone knows the law not only of the place they
live, but of other places as well
2. If no knowledge then no deterrence
3. If no knowledge no mens rea or culpability
iii. Argument for why it should not be a defense:
1. Makes law too subjective because it puts a premium on ignorance
2. If it were it would put a great burden on the state by requiring proof that D knew the
a. The state is required to prove nothing regarding D’s knowledge of
whether or not his behavior is proscribed by law unless the definition of
the offense so provides—MPC 2.02(9)
Line between mistake of law and mistake of fact is permeable
i. One can often transform one into another (like the above examples)
1. I thought he was already dead—sounds like fact
2. But to the extent that we define homicide as killing a person—it could be a mistake of
Exception to the general rule is when the mistake negatives the mens rea—MPC doesn’t distinguish
between mistake of fact and mistake of law:
i. MPC § 2.04(2): “Although ignorance or mistake would otherwise afford a defense to the
offense charged, the defense is not available if the defendant would be guilty of another
offense had the situation been as he supposed. In such case, however, the ignorance or
mistake of the defendant shall reduce the grade and degree of the offense of which he
may be convicted to those of the offense of which he would be guilty had the situation
been as he thought it was.”
Governing vs. Nongoverning
i. Governing law: Mistake as to how the offense is defined (about the law you are being
prosecuted under)—not a defense
ii. Non-governing law: Mistake of law embedded in the meaning of a particular circumstance
element—can be a defense
iii. The problem with this formulation is that the non-governing law is incorporated into the
governing law and thus the distinction is unclear.
iv. Bray: D did not know he was a felon (non-governing law) or that he had to register as such in
the state of California after moving there (governing law). Court allowed the defense of
mistake because it was about non-governing law—Either his mistake negated the mens rea or
he had an excuse for his lack of knowledge.
v. Smith: D unlawfully removed fixtures (governing law) he had installed in apartment,
damaging the walls, floors, etc., arguing he thought it was his property (non-governing law).
Court allowed the defense of mistake because it was about non-governing law.
Mistake of law as an excuse
i. Some excuse defenses include:
1. Insanity—you have the mens rea, you just don’t know it’s wrong.
2. Duress or coercion
ii. Acting in reliance upon statement of the law
1. MPC 2.04(3): “A belief that conduct does not legally constitute an offense is a
defense to a prosecution for that offense based upon such conduct when:
a. (a) the statute or other enactment defining the offense is not known to the
actor and has not been published or otherwise reasonably made available
prior to the conduct alleged, or
b. he acts in reasonable reliance upon an official statement of the law,
afterward determined to be invalid or erroneous, contained in (i) a
statute or other enactments; (ii) a judicial decision, opinion or judgment;
(iii) an administrative order or grant of permission; or (iv) an official
interpretation of the public officer or body charged by law with
responsibility for the interpretation, administration or enforcement of the
law defining the offense.”
2. Hopkins: Reverend erected sign soliciting his ability to perform marriages despite
knowing there was a statute against it because the state’s attorney had advised him
sign would not violate law. Court upheld conviction because D didn’t contend the DA
had mislead him, only that he didn’t know he was violating the law.
a. Probably not reasonable to rely on DA either, since he knew the law.
iii. Unique statute
1. Lambert: Where felons had to register and D omitted to do so, the court said D had
the burden of proving he didn’t have notice of the statute (affirmative defense).
a. Courts generally have not followed this decision.
iv. If D made a bona fide effort to determine applicability of law
1. Long: Where D’s lawyer told him his divorce was legitimate so he got remarried and
violated a bigamy law, the court ruled he had the option of a defense.
a. Three types of arguments D can make:
i. Didn’t know it was against the law—not a defense
ii. Didn’t know the law applied—not a defense
iii. Didn’t know the law applied and tried in good faith to find out if it
did—gets a defense
2. Twitchell: Where Christian Scientists read church handbook and relied on Attorney
Generals’ interpretation of the law, the court reversed and left it open for prosecution
to take to retrial.
Mistake continued
a. “Willful”
i. Some courts do necessarily see this word to mean that ignorance is a defense.
ii. Some courts say that it means D had to know about the existence of the rules in order to be
held in violation.
b. Defense of mistake of fact or law can be seen two ways
i. Negation of mens rea
1. Prohibits prosecution from making a prima facie case
2. Burden of proof remains on the state
ii. Affirmative defense
1. An excuse that D’s behavior is not blameworthy
2. Burden of proof shifts to D
a. The actus reus of all homicides is the unlawful taking of another human life
b. Different kinds of homicides are distinguished on the basis of different levels of culpability and
different circumstances
i. Distinction between murder and manslaughter is not congruent with the distinction between
intentional and unintentional
ii. Not all intentional killing is murder (i.e. self defense)
iii. Malice Aforethought
1. A traditional idea that you won’t see in modern statutes.
2. Term of art created by common law that provides the dividing line between more
serious homicides from less serious ones—separates murder from manslaughter
3. Does not have a precise meaning, but can be described as “intention to cause or
willingness to undertake a serious risk of causing the death of another, when that
intent or willingness is based on an immoral or unworthy aim.”
4. Doesn’t necessarily include premeditation, but can.
5. Includes anger, hatred, revenge and every other unlawful and unjustifiable motive
6. Implied by any deliberate or cruel act against another
7. Malice aforethought (above the line) includes:
a. Intentional murder:
i. Intent to kill
b. Unintentional murder:
i. Intent to do serious bodily harm
ii. Knowledge that death or serious bodily harm will likely occur
iii. Depraved heart (unintentional homicide involving “extreme
recklessness with regard to a serious risk to human life)
iv. Felony-murder
8. Homicides that don’t include malice aforethought (below the line)
a. Voluntary manslaughter (heat of passion)
b. Involuntary manslaughter
i. Violation of an objective standard (recklessness or negligence)
1. In some jurisdictions, violations of an objective standard are
reckless killings other than the depraved heart kind
2. In some jurisdictions, vehicular homicide is a separate
ii. Misdemeanor manslaughter
iii. Negligent homicide (MPC)
iv. Premeditation
1. Dividing line between 1st and 2nd degree murder
a. Many states do not have two degrees
b. Some states have 3rd degree murder
c. Usually there is no unintentional 1st degree murder unless it is felony murder
2. Qualitative vs. Quantitative view of premeditation:
a. Quantitative: How much time is required
i. The implication of the term is that some period of time is required to
premeditate, but no court has given a bright-line rule about how much
time is required for premeditation
b. Qualitative: How much do you have to think before you do it
i. Other courts focus on whether it was cold-blooded or committed with
a second thought
ii. Usually, courts can’t get around looking at the time factor
c. Special homicides
i. Common-law rule is that suicide is homicide
ii. Statutes typically deal with the killing of law enforcement officers differently
d. Different state statutes on homicides
i. Typically idiosyncratic in that different states define the kinds of homicides differently
ii. Some define the type of homicide based on who the victim is (i.e. police officer)
iii. Legislatures find situations that are out of the ordinary and then treat them in a special way
a. Intentional
i. In Georgia, malice murder = intentional murder
1. MPC 210.2: “Except as provided in Section 210.3(1)(b), criminal homicide
constitutes murder when:
a. It is committed purposely or knowingly; or
b. It is committed recklessly under circumstances manifesting an extreme
indifference to the value of human life.” Such reckless and indifference
are presumed if the actor is engaged or is an accomplice in the
commission of, or an attempt to commit, or flight after committing or
attempting to commit robbery, rape or deviate sexual intercourse by
force or threat of force, arson, burglary, kidnapping or felonious escape.”
ii. Premeditated murder—First degree
1. Historically, the line of premeditation distinguished between capital murder and
murder resulting in a prison sentence. The courts then decided there couldn’t be a
crime that automatically resulted in capital punishment.
2. Where a jurisdiction divides murder into 1st and 2nd degrees, premeditation
distinguishes between the two
a. The line between premeditation and intentional is fuzzy
b. Trend is to go away from this approach
3. Some courts use qualitative terms (see above)
a. Thought before actions
b. Considered and reflected upon a preconceived act
c. D gave killing a second thought
d. Done in cold blood
4. Other courts speak in quantitative terms (see above)
a. D had time to think about the crime
i. Not a bright-line test because premeditation can occur in an instant
depending on how much time is required
iii. Transferred intent:
1. If the intent is to kill a human being, mistake is no defense
2. If D intends to shoot A but winds up killing B, he can be convicted for murdering B
and attempting to murder A
iv. Franklin: D, who had escaped from custody, shot (gun went off) victim through door while
trying to get car keys. Court ruled that the instructions were flawed due to two maxims that
required the jury to find malice if they found he fired the gun, alleviating the state’s burden.
1. Two maxims:
a. Sane people who do things do them voluntarily
b. Most people intend the natural and probable consequences of their voluntary
2. But, people do things where they don’t intend the consequences
a. Double-decker bus driver
v. Myers: Court ruled that there had to be intent to kill and malice. As a result, 62 inmates won
retrials and the court eventually reversed itself.
1. Intent is typically a code word or translation of malice.
b. Unintentional (Reckless/depraved heart murder or felony murder)
i. Reckless/depraved heart murder:
1. Some recklessness is so extreme that we consider those who engage in such conduct
to be murderers
a. Intent to do serious bodily harm (where death results)
b. Knowledge that death or grievous harm will occur
c. MPC defines it as “extremely recklessly killing under circumstances of
extreme indifference to value of human life”
2. Examples:
a. Playing Russian roulette or poker
b. Nanny shaking baby to death
c. Medical murders such as giving a massive overdose of anesthesia or failing to
monitor a patient’s condition
d. Not properly maintaining murderous animals such as pit bulls trained to fight
3. Mayes: D threw beer glass at wife who was carrying an oil lamp. Court upheld the
conviction for reckless murder because he acted with an abandoned and malignant
heart. (MPC would say it was an extreme disregard for human life)
ii. Felony murder
1. A killing committed in either perpetration of or an attempt to perpetrate a felony
2. What is required:
a. Needs to be part of the felony as “one continuous transaction”—the killing
need not have occurred while committing the felony
i. Some causal connection between the felony and the killing
ii. Hypo: Bank robber driving carefully down the street after leaving the
bank is not guilty of felony murder if a child darts out in front and is
b. Some jurisdictions require that the killing be done in furtherance of the felony
c. Some jurisdictions use the identity of the victim
i. If the victim is an innocent bystander—felony murder
ii. If the victim is a co-felon—not felony murder
d. Neither causation nor foreseeability are required
3. Stamp: Victim had a heart attack after armed robbery. Court ruled that D could be
convicted for murder on the basis of the commission of an inherently dangerous
4. Effect of the felony murder rule
a. Takes burden of proving a mens rea off of the prosecution so that something
off the chart is turned into the most severe crime we have.
b. State doesn’t have to prove foreseeability (if it did, then it would be
c. In some states, D can be convicted of both murder and the predicate crime.
d. In Georgia, D can only be convicted of one of the crimes.
5. Rationale for felony murder rule:
a. When someone commits a felony, they have shown themselves to be a bad
person—Felony mens rea includes malice aforethought
b. Deterrence
i. Discourages people from committing felonies
ii. Even if people are not deterred, they are encouraged to commit
felonies more carefully and safely
c. Retribution
i. People who kill during felonies act with the moral equivalent of a
depraved heart murderer
ii. MPC 210.2(1)(b): “…reckless and indifference are presumed if
the actor is engaged or is an accomplice in the commission of, or
an attempt to commit, or flight after committing or attempting to
commit robbery, rape or deviate sexual intercourse by force or
threat of force, arson, burglary, kidnapping or felonious
escape.”—disguised felony murder.
6. Criticism of felony murder rule:
a. Studies show that death rarely occurs in connection with non-dangerous (?)
b. Doesn’t work as a deterrent because people who commit crimes usually
assume it won’t result in death
c. Many felony murders could be successfully tried as depraved heart murders
d. Violates the fundamental precept of mens rea and we should especially not
make an exception for the most severe crime—murder
e. There are felonies which are not dangerous (i.e. embezzlement)
7. Common law v. Modern approach
a. Originally, all felonies except manslaughter were predicate felonies
b. As more felonies have evolved, it became necessary to limit predicate felonies
for felony murder to those that are inherently dangerous (i.e. killing during
income-tax fraud is not felony murder)
i. Test for determining dangerousness:
1. Objective: Is this felony likely to create serious harm to
others in general?
2. Subjective: Is there a high probability that this particular
felony caused by this particular D will cause serious harm?
ii. Problem with test for dangerousness:
1. Danger of post-hoc rationale—reasoning backwards so that
since someone is dead, it must have been dangerous
2. Can’t really calculate the likelihood of death
iii. Court’s interpretation is going to be guided by how it feels about the
felony murder rule
8. Current state of felony murder laws
a. Almost every state has some version of felony murder, but the trend has been
to abolish or modify this rule (i.e. by limiting it to a list or inherently
dangerous felonies)
b. Different approaches/Limitations on scope of rule
i. Type of felony: Some jurisdictions have statutes that enumerate
specific felonies as predicates for the rule (i.e. theft, rape, robbery,
ii. Time frame: Must be in furtherance of, in the course of, the felony
iii. Other jurisdictions state that only “inherently dangerous” felonies are
predicates for felony murder.
1. Gives wiggle room for discretion
2. Also creates problem of deciding what is inherently
dangerous—in every felony murder case, it WAS in fact
3. Can limit it to mean that a deadly weapon was involved
9. Co-felons
a. Accomplices are responsible for the acts of their co-felons
b. If the co-felon shoots and kills someone during the crime, the other(s) are
subject to felony murder charges as well
c. If one felon kills his co-felon, the rule does not apply in some states
10. Augmentation of liability: In some jurisdictions, felony murder elevates liability
11. Merger rule: Killing merges with the predicate felony to make D criminally liable for
the predicate felony only (i.e. the killing that results from manslaughter is still
a. When the purpose of the underlying felony is to kill or seriously harm
someone, felony murder cannot merge with that felony to create a more
culpable killing.
b. The predicate felony must be dangerous enough for the rule to apply, but not
so dangerous that it would cause death or serious bodily harm in itself
c. Can’t have aggravated assault or voluntary manslaughter as predicate felonies
i. Child abuse—some courts say it is not inherently dangerous, others
say it is so dangerous that it falls under the merger rule
d. Moran: D killed police officers. Court ruled that the aggravated assault
against each cope merged into the killing of each (think of them as separate).
12. Other ways to limit felony murder rule
a. Get rid of it all together, there are plenty of ways to prove murder
b. Only allow it outside of strict liability so that some independent level of
culpability must be shown with regard to the killing
c. Requiring that D act recklessly while committing a felony to raise it to murder
a. Voluntary
i. Intentional homicide that lacks malice and the killer either acted in the heat of passion after
“adequate provocation” or acted in an honest but unreasonable belief the killing was necessary
for self-defense.
1. Distinct from intentional murder in that it lacks malice aforethought (it is below the
2. Heat of passion requires that there cannot be a “cooling off period”
3. Walker: D killed man who was trying to get him to gamble and then drew a knife on
him and his friends. Court reversed the conviction for murder and directed a verdict of
voluntary manslaughter.
ii. MPC 210.3(1): “Criminal homicide constitutes manslaughter when…
1. (a) a homicide which would otherwise be murder is committed under the
influence of extreme mental or emotional disturbance for which there is no
reasonable explanation or excuse. The reasonableness of such explanation or
excuse shall be determined from the viewpoint of a person in the actor’s situation
under the circumstances as he believes them to be.”
2. This is somewhat different from the traditional definition
a. Uses the word “reasonable”
b. “Extreme mental or emotional disturbance” replaces “heat of passion”—
might broaden the window to include such things as stress, etc.
c. Talks about D’s perspective
d. Focuses on D and excuses rather than provocation
e. Not a question of whether victim brought it on himself, but rather if we
understand why D did what he did
3. Notice that the focus on D brings up the question: What is included in his “situation”
a. Age, sex, personality, race.
i. Kurtz says race can have two impacts:
1. Generalize people into stereotypes—all Jewish people are
2. How it played into the individual’s reaction to something—A
racial slur is going to affect someone who is that race
differently than someone from outside the race
ii. Gender raises the issue of stereotypes like men being hot-blooded and
women being unreasonable
b. MPC’s comments say it is ambiguous on purpose and leaves it open for the
jury to decide which factors matter
iii. GA statute: “Sudden violent and irresistible passion resulting from serious provocation.”
iv. D is typically arguing voluntary manslaughter as a defense against a charge for murder
1. Kind of a compromise because otherwise it is murder on the one hand and acquittal on
the other.
2. Three ways in which this may work as an argument on appeal:
a. D presents voluntary manslaughter evidence but trial court refuses to instruct
on it
b. D presents voluntary manslaughter evidence but trial court instructs
c. D presents voluntary manslaughter evidence, the instruction is correct, but no
reasonable jury would have found murder (problem alleged in Walker)
3. This compromise can be described as partial justification or partial excuse
a. Justification: D was a little right for killing the guy
b. Excuse: D did a bad thing, but it could be understood at least a little bit
4. Note that if the judge gives the wrong kind of pro-D instruction it can become difficult
on appeal.
a. Hypo: Judge Chauvinist instructs the jury that heat of passion always occurs
when a man finds his wife having relations with another.
i. If D is acquitted, it won’t go to the appeals court
ii. If D is convicted of voluntary manslaughter, he likely won’t appeal
iii. But if D is convicted of murder, he can’t complain about the
voluntary manslaughter instruction on appeal
v. Provocation
1. Objective AND subjective standard required
a. An ordinary person must have been provoked in same situation (adequate)
b. This particular D must have been provoked (actual)
2. Common law approach:
a. Provided certain circumstances when provocation could occur because the
ordinary person would be provoked under the circumstances—pigeon hole
i. Fighting
ii. Assault and battery
iii. Seeing one’s wife in adultery or a narrative about it (honor defense)
iv. NOT words
3. Modern law approach/Reformed rules:
a. A question of provocation will go to the jury (see Berry case below)
i. Designed to send more cases to the jury
b. But the judge still has a role in that he could say there is no way a reasonable
jury could find it was a reasonable provocation and thus it won’t go to the
i. Hypo: D kills someone for wearing a Cubs hat instead of a Yankees
hat. Judge could decide a jury could not possibly find this to be
sufficient provocation.
ii. Nourse article argues this new approach is still too relaxed—slippery
c. Must be adequate—if a reasonable person would lose self-control and
actual—this D lost self-control
4. Rowland: D killed his wife after catching her with another man. Court ruled that this
was adequate provocation and reversed the murder conviction.
a. (Es) brevis furor: “Anger is short madness”
5. Mistake (with regard to provocation)
a. Majority view—Mistake of fact is a defense if there is a reasonable belief and
that is what excites the heat of passion
i. Example: D kills man he reasonably believes just had sex with his
wife, but it turns he’s wrong
b. Minority view—Mistake of fact is not a defense
i. Example: They would actually have to be having an affair for D to get
a voluntary manslaughter instruction
6. Gradual/Cumulative provocation
a. Sudden anger is not cumulative by definition and thus, gradual or cumulative
provocation is usually not sufficient for heat of passion
i. Supported by the idea that we want to encourage people to seek other
ways of carrying out their emotions
ii. The longer we let it go, the harder it is to have evidence of the initial
iii. Gives the victim a chance to rehabilitate or be forgiven
iv. Gounagias: Man sodomized D and then went around telling people.
Court ruled that it was not a heat of passion killing but rather
“brooding thought, resulting in the design to kill.”
v. But note that the modern idea of send-cases-to-the-jury has come into
play on this idea:
1. Berry: D killed wife who taunted him after she went to
Israel, found lover, and wouldn’t stop screaming during their
fight. Court ruled that jury could decide if provocation was
sufficient, ignoring the cumulative aspects of the situation.
vi. Cooling time
1. Objective AND subjective standard required
a. An ordinary person must have lacked cooling time in same situation
b. This particular D must have lacked cooling time
2. Traditional view
a. When homicide occurs after an unreasonable period of time has elapsed since
provocation, there was sufficient cooling time (to constitute murder)
i. Can’t have cumulative provocation
1. Manslaughter is something sudden and not something that
results from a series of events
ii. Want people to seek other means to deal with emotions
3. Fraley: D killed man who allegedly killed his son 9 or 10 months ago. Court ruled the
amount of time that had passed was sufficient cooling time and upheld the charge of
a. D may have passed the subjective test, but not the objective test. You need
b. Outcome might have been different if this was the first time he saw the
vii. Rationale for voluntary manslaughter
1. Less culpable than a murderer (compromise)
2. Not as criminal as murder
3. D thought he was at least a little right to kill or had a reason to kill
4. Victim “deserved” it
a. Under tort law, this would be assumption of the risk
viii. Theories of punishment (why we punish this less than murder)
1. Deterrence: People won’t be deterred more when they are acting on the spur of the
moment if there is more punishment
2. Retribution: Punish less because less culpable
3. Rehabilitation: Not as necessary because of the extreme circumstances
4. Incapacitation: Again, not as necessary because of the extreme circumstances
ix. Reasonable person standard:
1. An average person acting under same or similar circumstances
a. Age is a factor for consideration
i. 15-year-old should be held to standard of reasonable person of his age
b. Not clear whether gender, race, education should be taken into consideration
i. Perhaps if it has something to do with provocation, it might
c. Can’t make it too subjective
d. MPC—jury determines whether it was reasonable in the actor’s situation
b. Involuntary (Unintentional homicide committed recklessly or highly negligently)
i. Two types:
1. Felony manslaughter(?)—violation of an objective standard
a. Reckless or negligence (note that earlier, we said reckless was a subjective
i. MPC carves out a separate category for negligent homicide.
b. Involves a disregard or ignorance of a substantial and unjustifiable risk that
death or serious bodily injury might occur (not as extreme as involuntary
murder requires)
i. Some jurisdictions add a separate category for vehicular homicide
2. Misdemeanor manslaughter
a. Junior version of felony murder—non-predicate felony manslaughter
b. Difference between dangerous felonies and non-dangerous felonies
ii. Culpability requirements
1. Split of authority:
a. Some jurisdictions include both negligent and reckless killings under
involuntary manslaughter
b. Other jurisdictions make distinctions between negligent and reckless killings
c. Others only say reckless
2. MPC makes a distinction between negligence, recklessness, and extreme recklessness
a. Negligence is manslaughter (210.4)
i. 3rd degree felony
b. Recklessness is manslaughter (210.3)
c. Extreme recklessness is (depraved heart) murder (210.2(b))
3. Criminal negligence
a. Actor should have been aware of the risks (ignorant of the risks)
b. D didn’t want or desire the result to happen
c. D didn’t know it was going to happen
d. Could be argued that D was not negligent at all because each of us would
have acted the same way
e. Psychology of negligence—major blunders can happen even to experts or the
experienced when they are acting out of habit
i. Example: Double-decker bus driving into bridge
ii. Become conditioned because he is used to doing something a certain
4. Reasons why we do hold people liable
a. Retribution: Someone died
b. Deterrence: We don’t want people acting on autopilot
i. Same as strict liability argument where we want people to act
extremely carefully
5. Welansky: D’s nightclub caught on fire (while he was somewhere else) and had
inadequate exits so many were killed. Court ruled that the statute allowed a finding of
negligence—even though they say it is reckless—for involuntary manslaughter and
uphold the conviction.
a. Difficult to talk about
i. The crime that has most likely affected some of us directly or indirectly
ii. Just on the other side of something private and good
b. How rape is a different kind of crime:
i. Victim has experienced something different than other victims
ii. Switches concerns so that those who are ordinarily concerned with D are concerned with the
1. Blue-collar, white-collar
2. Women are usually pro-D unless it is about rape
iii. More controversial than it is clear-cut
1. Leads to classic “he said, she said” problem as it almost always occurs in a private
2. One out of five incidents are not reported
3. Informally involves something potentially suspicious about the victim so that she has
to defend herself in ways victims of burglary don’t
4. Racial issue polarizes us in these cases in a way other crimes don’t
iv. Elements are confusing
1. Force and lack of consent are not identical
a. No consent, no force—victim is passed out
b. Force, but consent—S & M
2. But most cases show that if there was no consent, there was likely force and vice versa
Developments in rape law
a. Procedural barriers to conviction have come down:
i. Time limitation for when report of rape had to made gone
ii. No longer does victim have to have corroborating evidence
iii. Practice of instructing jury that rape was easily charged but difficult to prove no longer
b. New barriers to make conviction easier:
i. Rape shield laws prohibit D from admitting evidence about victim’s background (i.e. sexual
history, way she was dressed)
ii. “Proving” element has changed
1. No longer formally requires resistance to prove force or nonconsent
2. Force doesn’t require physical beating or threat
3. Some states have eliminated force requirement completely and make the failure to
have an affirmative consent the requirement instead
c. Scope of rape law has expanded:
i. Marital exception no longer exists
ii. Rape statutes have been made gender-neutral (not in Georgia)
iii. The physical act of rape no longer requires penetration—sexual assault
Typical Elements
a. The sexual act
b. D acted forcibly
c. Against victim’s will
d. No explicit mens rea requirement
MPC 2.13.1
a. Fairly traditional
b. “A male who has sexual intercourse with a female not his wife is guilty of rape if:
i. 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; or
ii. He has substantially impaired her power to appraise or control her conduct by
administering or employing her without her knowledge drugs, intoxicants or other
means for the purpose of preventing resistance; or
iii. The female is unconscious; or
iv. The female is less than 10 years old.”
c. Pro-defendant—
i. Stranger rape is 1st degree but date rape is 2nd degree
ii. She can’t have slept with D before, be a social companion, be his wife, be mentally incapable
iii. Requires prompt complaint and corroboration
iv. Jury is instructed that victim’s testimony could be affected by her emotional involvement,
even though they would not be told this in burglary or assault cases
d. Pro-state—
i. Doesn’t talk about resistance or nonconsent, just force
ii. Threat can be directed against anyone (i.e. “I’ll kill your brother if you don’t sleep with me”)
iii. Unconscious victim is explicitly mentioned
Evolution of actus reus requirement—to show force
a. Phase 1: Utmost resistance
i. Law required “the most vehement exercise of every physical power to resist the penetration”
1. Insufficient resistance when the victim only tried to escape, but didn’t oppose the
2. Based on the belief that a woman would risk life and limb to preserve her chastity—
fighting to the very end
3. Puts up a guard to protect from the deceitful woman who cried rape when her
fornication was discovered
ii. Prof. Coughlin notes that the charge of rape was originally a defense for women who were
charged with adultery or fornication
1. 19th century rape law was not intended to encourage sexual autonomy, but rather to
confine it
2. In order to defend against the charge, a woman would have to show
a. Lack of actus reus—was not voluntary
b. Lack of mens rea—did not know it was not her husband or did not think she
was having sex
c. Duress—did it because she thought she would be hurt or killed
iii. This requirement makes the victim have to gamble since her resistance can either discourage
her attacker or encourage him to inflict more serious injury.
iv. Brown: Court reversed conviction where victim didn’t protest beyond saying “let me go”
because she was required to oppose force with force and show the “most vehement exercise of
every physical power to resist.”
b. Phase 2: Earnest resistance
i. Resistance of a type reasonably to be expected from a person who genuinely refuses to
participate in sex under all particular circumstances
1. Shows both force and lack of consent
2. Puts the burden on the victim to show resistance or the futility of resistance
ii. Dorsey: Woman was raped by taller, bigger man in elevator—no actual resistance, no verbal
threat, she didn’t say “no” and took off her own clothes. Court affirmed conviction because a
jury could have found she used reasonable resistance under the circumstances.
iii. Powell: Court said she did not consent, but did not reasonably resist. Shows that the burden is
on the victim to do something.
c. Phase 3: Forcible compulsion:
i. Legal rejection of resistance requirement, so that elements of rape become the combination of
force and nonconsent
1. Resistance may still help establish force, but it is not necessary to prove force
2. Pro-state way of looking at rape
ii. Reasons for abandoning the resistance requirement
1. A woman can not resist and still not be consenting
2. People react differently in particular situations—psychological infantilism like
freezing, etc.
3. Resistance can be dangerous to resist by increasing the risk of injury
4. State is unwilling to file cases with no resistance
iii. State only has to prove force and nonconsent
1. Victim must fear immediate and unlawful bodily injury
iv. Barnes: Victim was buying marijuana from D when wouldn’t let her leave and physically
threatened her. Court abandoned the resistance requirement and upheld conviction.
v. Prof. Anderson argues for retaining the resistance element:
1. There are so few really dangerous rapes that we ought to encourage people to resist
2. Resistance will deter people from rape
3. Problems with her argument:
a. Resistance can turn a bad rape into a really dangerous rape
b. Makes women responsible for resistance (puts burden on victim)
d. Phase 4: Nonconsent
i. Most jurisdictions have reached this point
ii. Under this view, force is not considered at all.
iii. State only has to prove that the sex was not consented to
1. To see if there is consent, focus on the victim’s behavior from D’s eyes—would it
have reasonably appeared to a reasonable D that she was consenting?
iv. Prof. Dripps says we spend too much time arguing about consent when we should be looking
1. Sexually motivated assault—purposely or knowingly putting victim in fear of
violence for purpose of causing sexual submission
2. Sexual expropriation—sexual act over verbal protest of victim without purposely or
knowingly putting her in fear of physical injury
v. Prof. West says this a bad argument because there is violence in all rape and depriving
someone of sexual autonomy is just as bad as threatening to kill someone.
vi. Smith: D forced himself on victim after their date and she eventually gave in. Court ruled that
consent depended on how her manifestation of such consent was reasonably construed and
upheld the conviction because her ultimate lack of resistance was clearly not consent.
1. D should have known she was not consenting—negligence
e. Phase 5: Lack of an affirmative expression of consent
i. Few jurisdictions have gone this far
ii. State only has to prove that there is no explicit expression of consent
1. Doesn’t necessarily mean that they have to be written or spoken
2. Consent can be manifested through behavior
iii. Failure to say “yes” means “no”
iv. State Ex Rel. M.T.S: D went into girl’s bedroom and when she woke up he was having sex
with her. Court upheld conviction because she failed to say yes.
Mens rea requirement
a. Most courts leave this out of their discussion of rape
i. D usually denies the actus reus
ii. Some cases have raised the mens rea issue
b. Traditionally, the requirement of force showed that D had the requisite mens rea
i. If he knew she didn’t want to have sex, he must have had the mens rea for rape
ii. If D jumped to a defense of lack of mens rea, he was conceding the actus reus
1. D first says she consented, but in the alternative that he believed she was consenting
and should have a defense
a. In England, House of Lords has said that the mens rea for rape is intent to
have unconsented sex
b. Some courts have held that purpose or knowledge (or at least recklessness) is
required with regard to nonconsent
c. Other courts have implicitly held that there is no mens rea requirement
c. Public policy debate
i. Prof. Estrich says courts should require a mens rea and allow reasonable mistake so that if it’s
off the chart (below negligence), he has a defense
1. It will benefit victims because it will take the focus off the victim and will allow juries
who would be unwilling to convict D who did not act recklessly or knowingly with
regard to nonconsent but who did act negligently
2. The current system focuses too much on the victim and intentional D are acquitted
because victim was feigning consent and he knew she was.
ii. Prof. Henderson, disagreeing with Estrich, says that explicitly requiring mens rea with regard
to nonconsent will open the door to looking at victim’s history and behavior—focus on victim
1. D could argue that he thought she consented because they had a previous sexual
relationship, she behaved a certain way, etc.
2. Reasonable mistake will only get us into the issue of what is “reasonable” to men and
women (might be different things)—and that it will likely end up being the male
version which favors D and not the victim
d. Fischer: D and victim had sexual history involving “rough sex.” Court said he could not have a
mistake of fact defense with regard to her consent because the legislature had not given him one.
a. A chameleon crime in that it always takes on the “color” of whatever substantive crime it is attached
to—attempt in the abstract means nothing
i. An inchoate/unfinished or undeveloped crime where the ultimate harm has not occurred
1. Hypo: Man standing outside Brooks hall with a lit match and a note on his shirt saying
he is going to set the building on fire
ii. No single crime of attempt—always attached to another crime
b. Reasons for punishing attempt
i. People who are trying to commit a crime have shown themselves to be dangerous
ii. Preemptively stops people from committing the ultimate crime
1. If not, we would have to wait until the commission of the full crime was complete
before punishing
iii. Wouldn’t be fair to let someone go just because they happened to fail to commit the full crime
1. Shooting at someone and missing is just as bad of an act as if the bullet hits them
c. Why punish less than for the ultimate crime? (MPC says to punish it the same)
i. Person who killed is really worse than the one who didn’t commit the crime
1. Tells us that results count
ii. Should be extra punishment for the completion of the crime
iii. If we punish too much the jury won’t convict when they think it is unfair
iv. To provide an incentive for the criminal to turn back before committing the crime
1. If it is punished at the same level, there is no reason to turn back
d. Two kinds of attempt
i. Screw-up: Shoot and miss
ii. Actus interruptus: Shooter is tackled before he shoots (getting caught while trying)
e. GA statute §16-4-1: A person commits the offense of criminal attempt when, with the intent to commit
a specific crime, he performs any act which constitutes a substantial step toward the commission of
that crime.
Mens rea
a. Majority view is that attempt requires intent (purpose) to commit the acts that constitute the crime
i. D must intend to commit the act he committed and intend to commit the substantive crime
ii. Why require a higher level mens rea?
1. Makes up for a low actus reus requirement
2. Want to make sure that D is a dangerous person since he is for all intensive purposes
iii. No such thing as attempted result crime
1. Cannot attempt involuntary manslaughter or reckless homicide because you don’t
intend that someone die in those instances
2. Lyerla: D fired at pickup truck and killed one passenger, but was convicted of
attempted second degree murder for other two. Court reversed attempt conviction
because you cannot intend to act recklessly. (Can’t intend that someone dies—the
result element of the crime—with a reckless state of mind)
iv. Can attempt reckless behavior crimes
1. Can attempt to recklessly drive
v. MPC gloss says D doesn’t have to intend with regard to circumstance elements, only what the
crime required.
b. Minority view is that attempt doesn’t require purpose, but rather only requires that D acted voluntarily
i. Says that the majority view creates a gap where if you act in any way less than intentionally
and come close to causing harm, your acts are not punishable.
ii. MPC tries to fill this gap with reckless endangerment.
c. MPC 5.01: “A person is guilty of an attempt to commit a crime if, acting with the kind of
culpability otherwise required for commission of the crime, he:
i. Purposely engages in conduct that would constitute the crime if the attendant
circumstances were as he believes them to be; or
ii. When causing a particular result is an element of the crime, does or omits to do anything
with the purpose of causing or with the belief that it will cause such result without
further conduct on his part; or
iii. Purposely does or omits to do anything which, under the circumstances as he believes
them to be, is an act or omission constituting a substantial step in a course of conduct
planned to culminate in his commission of the crime.”
Actus reus
a. Four approaches to tell where to draw the line between preparation and attempt:
i. Proximity: focuses on the nearness of what has been done toward the ultimate crime—if it is
close enough, sufficient for actus reus (want to be sure there was a dangerous act before we try
to stop it)
1. The last proximate act
a. D must have committed the last act necessary to commit the ultimate crime
b. Most pro-D approach
c. Excludes all the crimes of actus interruptus
d. Example: Point the gun and pull the trigger, but didn’t kill
i. NOT:
1. Giving 8 of 9 doses of poison
2. Pointing the gun
2. Physical proximity
a. D must have been physically close to the ultimate crime
b. Example: Trying to find the bank manager that had money, but never actually
found him—no physical proximity
3. Dangerous proximity
a. Combines an analysis of how dangerous the crime is and how close D came to
committing it
4. Indispensable element
a. In most crimes there is something that can be identified as indispensable to
the commission of the ultimate crime
b. Example: When committing loan fraud, having the form filled out
ii. Probable desistance:
1. D has reached the point at which it is unlikely he will return
2. Premise behind this approach is that people return all the time and the actus reus is
supposed to separate the dangerous people from the not-so dangerous people
3. Focuses on what has been done rather than what remains to be done
4. Finds the dangerous person before physical proximity or the last act
5. Critics say this approach is artificial and imprecise
iii. Equivocality (res ipsa loquitur or the thing speaks for itself)
1. An unequivocal act has been committed
2. Not going to find an actus reus of attempt without it being very obvious to anybody of
what was going on
3. A bright-test by definition
4. Focuses on what has been done
5. Assures an evil intent
6. Criticisms:
a. Acts rarely speak from themselves short of the last act
b. If we wait for the last act, we’ve waited too long
c. It may look like attempt, but is really something innocent
i. Brooks hall hypo: lighting a match is not illegal
iv. MPC approach 5.01(1)
1. “Purposely engages in conduct that would constitute the crime if the attendant
circumstances were as he believes them to be…”
a. Sounds like he has already done the crime—looks like last act approach
2. “When causing a particular result is an element of the crime, does or omits to do
anything with the purpose of causing or with the belief that it will cause such
result without further conduct on his part”
a. Talks about result element—looks like last act approach
3. “Purposely does or omits to do anything which, under the circumstances as he
believes them to be, is an act or omission constituting a substantial step in a
course of conduct planned to culminate in his commission of the crime.”
a. Substantial step involves conduct that is strongly corroborative of the actor’s
criminal purpose
b. Can fit in with the idea of the actus interruptus
c. Pro-state kind of test
i. Doesn’t sound like you necessarily mean you have to get to the last
ii. Doesn’t require physical proximity, dangerousness, etc. but just a
substantial step
d. Can argue D-oriented aspect
i. Under prior test, state had to prove proximate act, an act which spoke
for itself, or an act beyond the point of probable return
ii. Under this test, state has to prove a substantial step and that it is
strongly corroborative
1. Strongly corroborative, but not substantial—tell everyone
you’re going to kill the dean
2. Substantial step, but not corroborative—walk into dean’s
office twirling a loaded gun
b. Defenses to attempt
i. Abandonment
1. After the actus reus of attempt has been committed, D abandons his attempt
a. Split authority on whether this is allowed as a defense—most don’t allow it
2. Must be complete and voluntary
a. D cannot get abandonment defense if he did it because he realized he was
about to get or screwed up
3. Arguments for allowing it as a defense
a. Gives D an incentive to turn back
b. Attempt is about purpose and D turning back casts doubt on his intent to
begin with—many states doubt this
ii. Impossibility
1. If D has committed some mistake by which it is impossible for him to commit the
crime, some states allow a defense
2. Generally, legal impossibility is a defense but factual impossibility is not
a. Distinction between the two is unclear
b. MPC and Kurtz would solve the problem by looking at whether D intended to
commit acts we consider to be criminal
i. IF D buys a coat he thinks it stolen, whether it was actually a legally
classified as a “stolen good” should not matter because he intended to
buy stolen goods.
3. Three special situations: (Kurtz only likes the third)
a. Inherent impossibility
i. D’s attempt to kill someone with voodoo
1. From D’s perspective, he committed the last act necessary for
the ultimate crime.
2. MPC would allow conviction for attempted murder, but since
the conduct is unlikely to result in a criminal act it will not be
b. Neutral act
i. D shoots stuffed deer out-of-season
1. State could say he’s attempting to hunt, but D could argue
he’s doing target practice
2. MPC would allow conviction if his intent was to commit a
crime, but it’s hard to determine that under these facts
c. Fictional crime
i. D thinks it is a crime to commit mopery and does so
1. No DA will take this to court because it isn’t a crime to mope
2. Ignorance of the law is no defense (for everyone)