Law, Justice, and Society:
A Sociolegal Introduction
Chapter 5
Crime and Criminal Law
Crime and Criminal Law
Criminal law, a.k.a. substantive law, is the law
of crimes
Defined by statute
 prescriptions
 proscriptions
Enforced by the state
Primary purpose is to protect the public from
harm by punishing harmful acts that have
occurred and seeking to avoid harm by
forbidding conduct that may lead to it
Crime and Criminal Law
What Is Crime?
“[A]n intentional act in violation of the criminal
law committed without defense or excuse, and
penalized by the state” (Tappan 1947, 100)
1. An act in violation
2. Of a criminal law for which
3. A punishment is prescribed;
4. The person committing this action must have
intended to do so
5. And to have done so without any legally
acceptable defenses or justifications
Crime and Criminal Law
Crime as a Subset of Harmful Acts
Core offenses
All social harm
Mala in se
Not regulated by
criminal law
All crimes
Mala in se and mala prohibita
All harms
Crime and Criminal Law
Mala in se: Crimes that are considered bad in
of themselves

Part I offenses in the UCR are the major mala in se
crimes
Mala Prohibita: Crimes that are considered
crimes because we have placed restrictions on
them

Listed in Part II of the UCR along with some other less
serious mala in se offenses
Crime and Criminal Law
Sources of Criminal Law
State and federal constitutions
State and federal statutes
Common law

codified in most states mid-1800s
Federal law is growing source of criminal law
Statutes define elements (various parts) of a
crime more specifically than common law
Crime and Criminal Law
Limitations on the Criminal Law
Substantive due process: There are limits to
what conduct the law may seek to prohibit
Forbids passage of laws that infringe on the
rights of individuals


free speech
assembly
Overbreadth doctrine: Laws are
unconstitutional when they fail to narrowly
define the specific behavior to be restricted
Crime and Criminal Law
Limitations on the Criminal Law (cont.)
Void for vagueness: laws are unconstitutional
if they fail to clearly define the prohibited act
and the punishment in advance
Fair notice: letting people know what is and is
not permitted
Must not restrict due process: laws must be
enforced fairly and non-arbitrarily
Must not restrict equal protection: laws
cannot restrict the rights of members of
suspect classifications
Crime and Criminal Law
Limitations on the Criminal Law (cont.)
Cruel and unusual punishment: punishments
must be proportional to the crime
Ex post facto laws: people cannot be
penalized for behavior which was not illegal
at the time they acted; penalties cannot be
increased after the crime has been committed

ex post facto laws do apply retroactively if they
are beneficial
Bills of attainder: laws that impose
punishment without trial
Crime and Criminal Law
Elements of Criminal Offenses
Elements must be present for criminal liability
to attach
Actus reus
Mens rea
Concurrence
Causation
Harm
Make up the corpus delicti
Crime and Criminal Law
Actus Reus (Criminal Act)
The guilty act; three forms:
Voluntary bodily movements
An omission in the face of a duty to act


failure to perform a legal duty
failure to prevent serious harm when a special
relationship exists
Possession

if the person has some knowledge that their
possession is illegal
Crime and Criminal Law
Mens Rea (Criminal Intent)
Guilty mind; inferred from circumstances
surrounding the criminal act
Four levels:
1. Purposeful
2. Knowing
3. Reckless
4. Negligent
Doctrine of transferred intent
Crime and Criminal Law
Concurrence
The union of the criminal act and the criminal
intent (actus reus and mens rea)
Crime and Criminal Law
Causation
The criminal act is the act that is the cause of
the harm
2 types:
1. Factual cause: “but for” the actor’s
conduct the harm would not have occurred
2. Legal cause: consequences of an act
which are not reasonably foreseeable to the
actor (intervening causes) relieve the actor of
some degree of criminal liability
Crime and Criminal Law
Harm
The result of the act, the injury to another or
to society
Crime and Criminal Law
Liability Without Fault
Strict liability: imposes accountability without
proof of criminal intent in situations where
society deems it fair to do so
Statutory rape
Vicarious liability (only civil law) : the
imputation of accountability from one person
to another
Crime and Criminal Law
Inchoate Crimes
Crimes that occur in preparation for an
offense
Three types:



attempt
solicitation
conspiracy
Crime and Criminal Law
Parties to Crime
Doctrine of complicity—where more than one
person may be held liable for criminal activity
Requires that all criminal elements be present
Common law recognizes four parties to a
crime:
1. Principles in the first degree
2. Principles in the second degree
3. Accessories before the fact
4. Accessories after the fact
Crime and Criminal Law
Defenses to Criminal Liability
Defense is a response by the defendant
which allows them to avoid criminal liability
Alibi: defendant asserts that they did not
commit the crime
Affirmative defenses: defendant admits that
they committed the act, but deny criminal
liability
Shifts both the burden of production and
persuasion to the defense (preponderance of
the evidence)
Crime and Criminal Law
Justification Defenses
A defense in which the defendant admits they
are responsible for the act, but claims that
under the circumstances the act was not
criminal
Self-defense
Consent
Execution of public duties
Crime and Criminal Law
Self-Defense
Use of force to repel an imminent, unprovoked
attack, in which they reasonably believed that
they were about to be seriously injured
May only use as much force as is necessary
Retreat doctrine: a person must retreat rather
than use deadly force if doing so is possible
Castle doctrine: persons attacked in their home
need not retreat
Can also apply to the defense of others and
property
Crime and Criminal Law
Consent
Persons may content to suffer what otherwise
would be an objectionable injury
Consent must be voluntary, knowing, and
intelligent
Crime and Criminal Law
Execution of Public Duties
Agents of the state are permitted to use
reasonable force in the lawful execution of
their duties
Crime and Criminal Law
Excuse Defenses
One in which the defendant admits that what
they did was wrong but that under the
circumstances they are not responsible for
their improper conduct




duress
intoxication
age
insanity
Crime and Criminal Law
Duress
Situations involving the threat of serious,
imminent harm to oneself, where the act is
less serious than the threatened harm
Those forced to commit a crime in such
circumstances do not act voluntarily


eliminates actus reus
eliminates mens rea
Crime and Criminal Law
Intoxication
Voluntary and Involuntary
Voluntary never leads to acquittal; may only
mitigate
Involuntary may work as a defense as the
person is not responsible for their actions
Crime and Criminal Law
Age
Persons below a certain age lack the
capability to form mens rea
Crime and Criminal Law
Insanity
Impairs mens rea
Mental illness and legal insanity are not the
same
M’Naghten rule—right wrong rule
Durham test—product test
Irresistible mpulse test
Substantial capacity test
GBMI- from Insanity Defense Reform Act of
1984
Crime and Criminal Law
Procedural Defenses
It is claimed that the defendant’s due process
rights were violated
Double jeopardy, denial of speedy trial, use of
illegally seized evidence
Entrapment in one of two scenarios (Sherman v.
U.S. 1958)
1. The crime is the result of the “creative
activity” of law enforcement
2. The prosecutor cannot prove beyond a
reasonable doubt that the defendant was
“independently predisposed” to commit the crime
Crime and Criminal Law
Categories of Crime
Crimes
Crimes
Crimes
Crimes
against
against
against
against
the person
property
society
morality
Crime and Criminal Law
Homicide and Manslaughter
Homicide means the killing of another human
being



what is a human being?
When is someone alive or dead?
What types of homicide deserve punishment?
3 forms of criminal homicide:



murder
manslaughter
negligent homicide
Crime and Criminal Law
Murder
Common law: the killing of another person with
malice aforethought
Model Penal Code: murder is a killing which
occurs 1) purposefully, 2) knowingly, or 3)
recklessly
First-degree murder: deliberate and premeditated
Second-degree murder: any killings that are
intentional but not premeditated or planned
Crime and Criminal Law
Manslaughter
Voluntary

an intentional killing which occurs
 under a mistaken belief that self-defense is needed
 or in response to adequate persuasion while in the
sudden heat of passion
Involuntary

an unintentional killing occurs as a result of a reckless
act
Crime and Criminal Law
Negligent Homicide
An unintentional killing in which the defendant
should have known that they were creating a
substantial risk of death by their conduct
Such conduct deviated from the ordinary level of
care owed to others
Crime and Criminal Law
Felony Murder
An individual is held liable for an unintended
killing which occurs during the commission of a
dangerous felony
No requirement of intent to either kill or inflict
serious harm
Crime and Criminal Law
Assaultive Offenses
Direct harm to a person inflicted by the actor
include:




assault and battery
robbery
sexual offenses
child sexual abuse
Crime and Criminal Law
Assault and Battery
Common law:


assault: an attempt or a threat to inflict immediate
harm
battery: an unjustified, offensive physical contact
Modern assault and battery:

assault and battery have been merged as “assault”
Aggravated assault: serious injury or assault with
an item
Account for 62.5 percent of all UCR Part I violent
crimes
Crime and Criminal Law
Sexual Offenses
Rape


common law: carnal knowledge by a man of a woman
who is not his wife, forcibly and without her consent
modern day: eliminated marital rape exception,
neutralized gender specificity, relaxed resistance
requirements, and created rape shield laws during
criminal court
Child sexual abuse
Death penalty cannot be used in rape cases,
except in some states where capital punishment
for raping children is allowed
Crime and Criminal Law
Arson
“Any willful or malicious burning or attempting to
burn, with or without intent to defraud, a
dwelling house, public building, motor vehicle or
aircraft, personal property of another, etc.” (FBI
2005, 61).
First degree: burning of an occupied structure
Second degree: burning of an unoccupied
structure
Third degree: burning of personal property
Crime and Criminal Law
Crimes Against Property
Burglary
Trespass
Theft
Crime and Criminal Law
Burglary
“[T]he unlawful entry of a structure to commit a
felony or theft” (FBI 2005, 45)
Seventeenth century: the breaking and entering
of the dwelling of another at night with the
intention of committing a felony inside the
dwelling
Today: burglary can occur during the day
Not entry alone -- must be unlawful entry
accompanied by intent to commit another crime
inside
Crime and Criminal Law
Theft Offenses
Crimes against property (theft) are more
common than crimes against the person
88.3 percent of crimes reported to the police
were property crimes (2005 UCR)
Crime and Criminal Law
Larceny/Theft
“The unlawful taking, leading, or riding away of
the possession or constructive possession of
another” (FBI 2005, 49).
Larceny is graded depending on method of
taking and the value of the property taken
Grand theft vs. petty theft (felony and
misdemeanor)
Crime and Criminal Law
Robbery
“The taking or attempted taking of anything of
value from the care, custody, or control of a
person or persons by force or threat of force or
violence and/or putting the victim in fear” (FBI
2005, 31).
Often classified as a violent crime
Extortion: a taking of property accomplished by
the threat of future harm to person, property, or
reputation
Crime and Criminal Law
Crimes Against Public Order and Morality
Crimes against public order are those in which
the injury is to the peace and order of society



disorderly conduct
unlawful assembly
vagrancy
Crimes against morality are those in which the
moral health of society is injured



adultery
prostitution
obscenity