Criminal Procedure: Pre-Trial: Assignment

What is the primary distinction between first- and second-degree murder?

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What is felony-murder? What is the difference between an assault and a battery?

What does the acronym RICO represent? What are the basic elements of RICO?

What are fighting words? Are they protected by the First Amendment?

What are affirmative defenses? How do affirmative defenses differ from other defenses?

What are the elements of the M’Naghten test for insanity? Irresistible impulse? Model Penal Code?

Ira stabbed his good friend, inflicting a fatal wound. At trial, a psychiatrist testified that Ira could not control his behavior, as he has a brain tumor that causes him to act violently. The doctor also testified that the condition did not impair Ira’s ability to know what he was doing or that it was wrong. Assume that the jury believes the psychiatrist’s explanation. Would Ira be convicted in a jurisdiction that uses the M’Naughten test? The irresistible impulse test? The Model Penal Code?

Jane was attacked by an unknown man. She was able to free herself and ran to a nearby house, with the man chasing close behind. She screamed and knocked at the door of the house. The occupants of the house opened the door, and she requested refuge. The occupant refused, but Jane forced her way into the house. To gain entry, Jane had to strike the occupant. Once inside, she used the telephone to contact the police, who responded within minutes. At the insistence of the occupants of the house, Jane has been charged with trespass and battery. Does she have a defense? Explain.

Chapter Outline Studying Crimes Homicide

Homicide and the Common Law Statutory Approaches to Homicide Manslaughter The Model Penal Code Approach to

Homicide Life, Death, and Homicide Suicide Corpus Delicti

Assault and Battery Aggravated Assault and Battery

Mayhem Sex Crimes

Rape Nonforcible Rape Sodomy Rape Shield Laws Incest Sex Offenses Against Children Megan’s Laws, Commitment, and

Castration Kidnapping and False Imprisonment

Kidnapping Parental Kidnapping False Imprisonment

Stalking Cyberstalking

Civil Rights and Hate Crimes Ethical Considerations: Can an Outspoken

Racist Join the Bar?

Chapter Objectives

After completing this chapter you should be able to:

• list, explain, and compare the elements of common law and contemporary crimes against the person, such as murder, rape, and assault.

• list, explain, and compare the common defenses to charges of crimes against the person, such as self-defense.

• identify and analyze contemporary legal issues concerning death and suicide.

• identify the material facts and legal issues in 1/3 of the cases you read.

CHAPTER 4

CRimEs AgAinsT THE PERson

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Chapter 4: Crimes Against the Person 97

Studying CrimeS In the next three chapters you will learn about many crimes. It would be impossible to include a discussion of all crimes. The federal government and each city and state have their own unique laws. What follows is a discussion of the major crimes recognized, in some form, in most jurisdictions. The crimes have been categorized as crimes against the person, crimes against property, and crimes against the public. Although it is common to make these distinctions, do not concern yourself with understanding why these clas- sifications have been made; they are used only for organizational purposes. In a sense, all crimes are offenses against the public in the United States. That is why the public prose- cutes crimes, and private individuals may not. Also, any offense “against property” is actu- ally injuring a person, not the property. A stolen iPod set does not long to be returned to its rightful owner. However, the rightful owner does feel wronged and desires the return of the stolen item. In a sense, the classifications are often accurate in that they describe the focus of the criminal conduct. The focus of a thief ’s act is property; hence, a crime against property. The focus of a rapist’s attack is a human; hence, a crime against a person.

All of the following crimes have been broken into parts. Each part of a crime is an element of that crime. At trial, every element of a crime must be proven beyond a reasonable doubt by the prosecution. If any element is not proven beyond a reasonable doubt, the accused must be found not guilty. The rule requires that each element be proved individually. That is, if a crime consists of six elements, and a jury is convinced that five have been proven, but cannot say that the sixth has been proven beyond a reasonable doubt, then there must be a not-guilty verdict. This is true even if the jury was solidly convinced that all the other elements were true and generally believed that the defendant committed the crime. Later you will learn more about the standard for determining guilt beyond a reasonable doubt.

Finally, you may notice that, often, if one crime has been proven, all the elements of a related lesser crime can also be proved. For example, if a defendant is convicted of murdering someone with a hammer, he has also committed a battery of the victim. In such circumstances, the lesser offense merges into the greater offense. This is the merger doctrine. Under this doctrine, both crimes may be charged; but if the defen- dant is convicted of the more serious crime, the lesser is absorbed by the greater, and the defendant is not punished for both. If acquitted of the greater charge, the defendant may be convicted of the lesser.

HomiCide Homicide is the killing of one human being by another. Not all homicides are crimes. It is possible to cause another person’s death accidentally, that is, accompanied by no mens rea. For example, if a bridge builder lost her balance and fell against a coworker, causing the coworker to fall to his death, no crime has been committed, but there has been a homicide.

Criminal homicide occurs when a person takes another’s life in a manner pro- scribed by law. The law proscribes more than intentional killings. Under the Model Penal Code, purposeful, knowing, negligent, and reckless homicides may be punished.

element

■ A basic part. For

example, some of the

elements of a cause of action for battery are an

intentional, unwanted

physical contact. Each of

these things (“intentional,”

“unwanted,” etc.) is one

“element.”

merger of offenses

■ When a person is

charged with two crimes

(based on exactly the same

acts), one of which is a

lesser included offense of

the other. The lesser crime

merges because, under the prohibition against double

jeopardy, the person may

be tried for only one crime.

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98 Part i Criminal Law

Crime StatiStiCS

There are many different ways to measure crime. Some methods, such as observation and experimentation, are impractical, or even more, immoral. The federal bureau of investigation collects crime data from police depart- ments all over the United States. These data are compiled and reported yearly under the title Uniform Crime Reports. Although a good comprehen- sive source of crime data since 1929, uCR data have some flaws. The most significant flaw concerns underreporting. Many crimes are not reported to the police. Even when a crime is reported, most police agencies report only the most serious offense committed. Hence, many crimes go unreported by individuals and police agencies. Also, because uCR data are aggregate data, no detail about the number of victims, offenders, or offenses per incident are provided. To remedy some of these problems, there is an on- going effort to redesign the ucr system. This effort, known as the National Incident-based Reporting System (NIbRS), asks local law enforcement of- ficers to move beyond aggregate data to providing information about each criminal incident.

Since 1991, colleges and universities that receive federal monies have been required to collect statistics on campus crime. The Campus Security Act requires that the collected data be made available to current and pro- spective faculty, staff, and students.

The second major system of crime data collection is the National Crime Victimization Survey, administered by the U.S. Census bureau on behalf of the U.S. Department of Justice. The NCVS is a large random survey of U.S. households. Respondents are asked whether they have been victimized by one or more of the listed violent and nonviolent crimes. The NCVS touts an impressive 95 percent response rate to its survey. The NCVS has its flaws as well. Some victims, particularly of certain crimes, are reluctant or ashamed to report the crime. Also, some people may not know that they have been victimized (e.g., embezzlement or fraud).

UCR data are often used in this text. For additional information, NCVS data should be examined. Also, most local and state law enforcement agen- cies and courts have data available that are not provided by either the uCR or NCVS, such as data on arrests and crimes not included in the UCR or NCVS systems.

Sources: The FBI’s UCR reports can be found in many locations, including http://www.fbi.gov/ucr/ucr.htm. NCVS data can be found in many locations, including http://www.ojp.usdoj.gov/bjs

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Chapter 4: Crimes Against the Person 99

The mens rea part of homicide is important. The determination of what mens rea was possessed by the defendant (actually, what mens rea can be proven by the prosecu- tion) will usually determine what crime may be punished. At common law, various forms of murder were developed. This is where we begin.

Homicide and the Common Law Initially, at common law, all murders were punished equally: the murderer was ex- ecuted.1 Over time, the value of proportional punishment developed and homicides were eventually divided into murder and manslaughter with differentiated punish- ment. Manslaughter was punished by incarceration, not death.

Murder, at common law, was defined as (1) the unlawful killing of a (2) human being with (3) malice aforethought. It was the requirement of malice aforethought that distinguished murder from manslaughter. Although malice aforethought was defined differently among the states, the following types of homicide became recognized as murder under the common law:

1. When the defendant intended to cause the death of the victim. 2. When the defendant intended to cause serious bodily harm, and death resulted.

Exhibit 4–1 CRIME CLOCK 2011

2011 CRIME CLOCK STATISTICS A Violent Crime occurred every 26.2 seconds

3.5 seconds

36.0 minutes

6.3 minutes

1.5 minutes

42.0 seconds

One Murder every

One Forcible Rape every

One Robbery every

One Aggravated Assault every

A Property Crime occurred every

14.4 seconds

5.1 seconds

44.1 seconds

One Burglary every

One Larceny-theft every

One Motor vehicle Theft every

Co py

rig ht

en ga

ge L

ea rn

in g®

Source: US FBI, Uniform Crime Reports (2012)

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100 Part i Criminal Law

3. When the defendant created an unreasonably high risk of death that caused the victim’s death, regardless of the defendant’s mens rea. This was known as “depraved-heart murder.”

4. When the doctrine of felony-murder was applicable.

All criminal homicides that did not constitute murder were treated as man- slaughter. Today, nearly every jurisdiction further divides murder into degrees, and most divide manslaughter into voluntary and involuntary. Few jurisdictions rely on the common-law definition of malice aforethought. However, many states continue to recognize felony-murder.

The Felony-Murder Doctrine Cole Allen Wilkins committed a burglary of a home that was under construction. He loaded several appliances stolen during the burglary into the bed of a pickup truck. Sixty-two miles away from the burglarized home, a stove that Wilkins’ had loaded into the truck fell onto the interstate. Wilkins left the stove on the road, and later a driver was killed when he swerved into the path of an oncoming vehicle in an attempt to avoid hitting the stove. Wilkins was charged and convicted of a crime that developed a long time ago, first-degree felony murder. You will learn more about his appeal in a moment, after you are introduced to this old crime.

At common law, one who caused an unintended death during the commission (or attempted commission) of any felony was guilty of murder. This became known as felony-murder. Under the early common law all felonies were punished by death. Generally, most of the crimes that were felonies under the common law posed a threat to human life. This threat was one justification for the harshness of the rule. However, as the common law developed, many new crimes were created, many of which did not involve serious threat to human life. For this reason the felony-murder doctrine was very harsh, as it applied to all felonies regardless of their relative dangerousness to human life. In time, courts began to limit the application of the rule to specified felonies—those perceived as posing the largest threat to human life. It was common to apply the rule to rape, mayhem, arson, kidnapping, and robbery.

For example, Grace and Eva decided to rob the First National Bank. They agreed to use whatever amount of violence is necessary to carry out the robbery. During the robbery a bank teller summoned the police by use of a silent alarm. As Grace and Eva were leaving the bank, the police shouted to them, ordering their surrender. Grace then fired a shot from her gun and fatally wounded a police officer. Using the felony-murder rule, both Grace and Eva are criminally liable for the death of the police officer, even though Eva did not fire the weapon or conspire with Grace to kill the officer.

The felony-murder rule acts to impute the required mens rea to the defendant and to create a form of vicarious liability between cofelons. The rule imputes mens rea because it applies in situations of unintended death; however, murder in the first degree is a specific-intent crime. The rationale is that one who engages in inherently dangerous crimes should be aware of the high risk to human life created by the crime. Vicarious liability is also imposed in some states; that is, all the individuals involved in the perpetration of the crime may be criminally liable for the resulting death.

felony-murder rule

■ The principle that if a

person (even accidentally)

kills another while

committing a felony, then

the killing is murder.

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Chapter 4: Crimes Against the Person 101

Today, most states have felony-murder statutes. Generally, the following require- ments must be proven to establish a felony-murder:

1. The defendant must have been engaged in the commission, or attempted commission, of a named felony, and

2. during the commission, or attempted commission, of that felony a death occurred, and

3. there is a causal connection between the crime and the death.

In most jurisdictions the legislature has specified the crimes that must be commit- ted, or attempted, for the rule to apply. A few jurisdictions have limited the application of the rule to crimes that were felonies at common law, and others have limited the rule to felonies that involve a threat to human life.

To satisfy the second requirement, it must be determined when the commission of the crime began and when it concluded. This appears to be an easy task, and it is in most cases, but in some instances it is not clear. Suppose that a robber knew that a large sum of money was being transferred between a bank and an armored car at a particular time and intended to steal the money during that transfer. Also assume that on the day of the robbery, the traffic was heavier than anticipated by the robber and, in an effort to arrive at the bank on time, the robber ran a stop sign. While passing through the intersection, the robber struck another vehicle, killing the driver. Was this death during the commis- sion, or attempted commission, of the robbery? What if a police officer were to chase an individual from the scene of a felony and get shot 15 minutes and one mile away from the scene of the crime? Is this during the commission, or attempted commission, of the felony? It is likely that no felony-murder would be found in the first example, because the death was too far removed from actual commission of the crime. The result would be different if the robber struck and killed the motorist while fleeing from the police immediately after commission of the holdup. This answers the second question. Courts have generally held that deaths that occur during the flight of a felon are “during the commission of the felony.” However, the chase must be immediate, and the rule does not apply if there is a gap between the time the crime occurred, or was attempted, and the time the chase begins. The third element can be troublesome. In many ways this require- ment is similar to the causation requirement discussed in Chapter 3 regarding actus reus. That is, the commission, or attempted commission, of the felony must be the legal cause (proximate cause) of the death. The death must be a “consequence, not coincidence” of the act; the resulting death must have been a foreseeable consequence of the act. So, if a patron of a store suffers a heart attack during a robbery, which was precipitated by the crime, the robbers are guilty of felony-murder if the patron dies. However, if a patron who is unaware of an ongoing robbery suffers a heart attack and dies, the robbers are not liable for the death. The mere fact that the death and the crime occurred simultaneously does not mean that the robbers were the legal cause of the death.

Returning to Defendant Wilkins and the stolen stove, he won reversal of his conviction in 2013 because the Supreme Court of California found the nexus between the death of the motorist and the burglary to be too distant in time and lacking in nexus.2

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102 Part i Criminal Law

In some states, the act that causes the death of the victim need not be taken by one of the perpetrators of the crime. For example, if Grace and Eva become involved in a shoot-out with the police after they rob the First National Bank, and the police acci- dentally shoot an innocent bystander, then Grace and Eva are guilty of felony-murder. This is because they began the series of events that led to the death of the bystander. However, if a police officer (or another) kills one of many felons who are jointly in- volved in the commission of the crime, it is generally held that the other felons are not guilty of felony-murder.3

Although the felony-murder rule does impose vicarious liability between cofelons, this aspect is limited. If a defendant can prove that he did not commit the act that caused the death; did not authorize, plan, or encourage the act of his cofelon; and had no reason to believe that his cohort would commit the act, he has a defense to felony-murder in some jurisdictions. Note that the rules concerning parties (principals and accomplices) to crimes may create liability independent of the felony-murder rule. (See Chapter 7 for a discussion of parties to crimes.)

Finally, note that in most jurisdictions that continue to recognize felony-murder, the murder is treated as first-degree murder for the purpose of sentencing. Other stat- utes provide that felony-murders that occur during named felonies are to be treated as first-degree murder and that murders during “all other felonies” are to be treated as second-degree murder. Even if the statute that creates this “all other felony” category does not expressly state that the felony must involve a danger to human life, it is com- mon for courts to impose the requirement.

In the Losey case, a defendant appealed his conviction of involuntary manslaughter and aggravated burglary. The Ohio Court of Appeals applied a statute that read, “No person shall cause the death of another as a proximate result of the offender’s com- mitting or attempting to commit a felony.” The statute named the crime involuntary manslaughter. The case is interesting from a causation perspective. Read the case and decide for yourself if the defendant should be punished for the death that occurred.

Defendant testified that he approached a house located at 616 Whitehorne Avenue shortly after 11:00 p.m. on November 25, 1983; that he knocked at the front door and, upon receiving no response, forced open the door and proceeded to attempt to remove a bicycle. His friend, who had been waiting outside, yelled that a car was slowly approaching. The defen- dant then placed the bicycle beside the front door

and departed, leaving the front door open behind him. James Harper, the owner of 616 Whitehorne Avenue, testified that he heard a noise at approxi- mately 1:00 a.m. Shortly thereafter, his mother, with whom he resided, appeared at his bedroom door inquiring about the noise. They proceeded together to the living room, whereupon they discovered the open front door and the bicycle standing near the

STATE V. LOSEY 23 Ohio App. 3d 93, 491 N.E.2d 379 (1985)

(continued)

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Chapter 4: Crimes Against the Person 103

Misdemeanor Manslaughter Similar to the felony-murder rule, one may be guilty of misdemeanor manslaughter if a death results from the commission of a misdemeanor, not a felony. Conviction of misdemeanor manslaughter results in liability for manslaughter, often involuntary manslaughter, and not murder.

Just as the felony-murder doctrine has been limited in recent years, so has the crime of misdemeanor manslaughter. This is due largely to the significant increase in the creation of nonviolent crimes by legislatures and administrative bodies. Many states require that the misdemeanor be malum in se, and crimes that are malum prohibitum cannot be a basis for misdemeanor manslaughter. Requiring that the misdemeanor have a mens rea element is another limitation; that is, strict liability crimes may not be the basis for misdemeanor manslaughter. There is a trend to reject the misdemeanor manslaughter rule (as there is with the felony-murder rule) and require that one of the four types of culpability recognized by the Model Penal Code (purposeful, knowing, negligent, or reckless) be present before imposing liability.

Statutory Approaches to Homicide Although the common law recognized only one form of murder, most states now divide murder into degrees; most often into first and second degrees. First-degree murder is the highest form of murder and is punished more severely than second- degree murder. Second-degree murder is a higher crime than manslaughter.

door. James Harper stated that he told his mother to go back to her bedroom while he went to check the rest of the house. After so checking, he returned to the living room and was calling the police when his mother appeared in the hallway looking very upset and then collapsed. He called an emergency squad, which attempted to revive Mrs. Harper for almost an hour when the squadmen pronounced her dead. Prior to the burglary, Mrs. Harper had re- turned from bingo at approximately 10:00 p.m. that evening and had gone to bed. based on these facts, the trial court found defendant guilty of aggravated burglary and involuntary manslaughter.

■ ■ ■

The doctor’s testimony established that defen- dant’s conduct was a cause of Mrs. Harper’s death in the sense that it set in motion events which

culminated in her death. However, it still must be de- termined whether defendant was legally responsible for her death—whether the death was the proximate result of his conduct. It is not necessary that the ac- cused be in a position to foresee the precise conse- quence of his conduct; only that the consequence be foreseeable in the sense that what actually trans- pired was natural and logical in that it was within the scope of the risk created by his conduct. . . .

by the same token, in this case, the causal re- lationship between defendant’s criminal conduct and Mrs. Harper’s death was not too improbable, remote, or speculative to form a basis for crimi- nal responsibility. Although the defendant did not engage in loud or violent conduct calculated to frighten or shock, his presence was nevertheless detected by Mrs. Harper. . . . [Conviction affirmed.]

STATE V. LOSEY (continued)

first-degree murder

■ The highest form of

homicide. The killing

of another person with

malice and premeditation,

cruelty, or done during the

commission of a major

felony is typically murder

in the first degree.

second-degree murder

■ Murder without

premeditation.

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104 Part i Criminal Law

First- and Second-Degree Murder For a murder to be of the first degree, the highest crime, it must be shown that the homicide was willful, deliberate, and premeditated. Generally, first-degree murder ap- plies whenever the murderer has as a goal the death of the victim. Willful, as used in first-degree murder, is a specific-intent concept. To be willful, the defendant must have specifically intended to cause the death.

Deliberate is usually defined as “a cool mind, not acting out of an immediate pas- sion, fear, or rage.” The term premeditated means “to think beforehand.” Similar to deliberate, it eliminates impulsive acts from the grasp of first-degree murder. It is com- monly said that there must be a gap in time between the decision to kill and the actual act. Of course, the length of the gap is the critical issue. Most courts hold that the gap in time must be “appreciable.” Again, this term does little to define the length of time. The fact is that courts differ greatly in how they define appreciable. There are many reported cases where a lapse of only seconds was sufficient.4 Some courts have held that all that need be shown is that the defendant had adequate time to form the intention before taking the act; the length of time is not determinative of the question.5

In State v. Snowden, the defendant appealed his conviction of first-degree murder, claiming that he lacked premeditation. As such, he should have been convicted of second-degree murder, not first-degree. Decisions such as this obscure the difference between first- and second-degree murder. Do you agree with the Idaho Court that there can be premeditation even if there is “no appreciable space of time between the intention to kill and the act of killing”? Note that the facts of this case did not require mention of the prior case where it was held that “no appreciable” time has to be shown. The fact that the autopsy evidenced that the murder occurred after the victim suffered torture would justify a murder conviction under the statute.

Defendant Snowden had been playing pool and drinking in a Boise pool room early in the eve- ning. With a companion, one Carrier, he visited a club near boise, then went to nearby Garden City. There the two men visited a number of bars, and defendant had several drinks. Their last stop was the HiHo Club.

Witnesses related that while defendant was in the HiHo Club he met and talked to Cora Lucyle Dean. The defendant himself said he hadn’t been ac- quainted with Mrs. Dean prior to that time, but he

had “seen her in a couple of the joints up town.” He danced with Mrs. Dean while at the HiHo Club. Upon departing from the tavern, the two left together.

In statements to police officers, that were admitted to evidence, defendant Snowden said af- ter they left the club Mrs. Dean wanted him to find a cab and take her back to boise, and he refused because he didn’t feel he should pay her fare. After some words, he related:

She got mad at me, so I got pretty hot and I don’t

know whether I back handed her there or not. And,

STATE V. SNOWDEN 79 Idaho 266, 313 P.2d 706 (1957)

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Chapter 4: Crimes Against the Person 105

we got calmed down and decided to walk across to

the gas station and call a cab.

They crossed the street, and began arguing again. Defendant said: “She swung and at the same time she kneed me again. I blew my top.”

Defendant said he pushed the woman over be- side a pickup truck which was standing near a busi- ness building. There he pulled his knife—a pocket knife with a two-inch blade—and cut her throat.

The body, which was found the next morning, was viciously and sadistically cut and mutilated. An autopsy surgeon testified the voice box had been cut, and that this would have prevented the victim from making any intelligible cry. There were other wounds inflicted while she was still alive—one in her neck, one in her abdomen, two in the face, and two on the back of the neck. The second neck wound severed the spinal cord and caused her death. There were other wounds all over the body, and her clothing had been cut away. The nipple of her right breast was missing. There was no evidence of sexual attack on the victim; however, some of the lacerations were around the breasts and vagina of the deceased. . . .

[M]urder is defined by statute as follows:

All murder which is perpetrated by means of poison,

or lying in wait, torture, or by any other kind of willful,

deliberate and premeditated killing, or which is com-

mitted in the perpetration of, or attempt to perpetrate

arson, rape, robbery, burglary, kidnapping, or may-

hem, is murder in the first degree. All other murders

are of the second degree.

The defendant admitted taking the life of the

deceased.

The principal argument of the defendant pertain- ing to [the charge of premeditated murder] is that the defendant did not have sufficient time to develop a desire to take the life of the deceased, but rather his action was instantaneous and a normal reaction to the physical injury which she dealt him. . . .

There need be no appreciable space of time between

the intention to kill and the act of killing. They may be

as instantaneous as successive thoughts of the mind.

It is only necessary that the act of killing be preceded

by a concurrence of will, deliberation, and premedita-

tion on the part of the slayer, and, if such is the case,

the killing is murder in the first degree.

In the present case, the trial court had no other alternative than to find the defendant guilty of will- ful, deliberate, and premeditated killing with mal- ice aforethought in view of the defendant’s acts in deliberately opening up a pocket knife, next cutting the victim’s throat, and then hacking and cutting un- til he had killed Cora Lucyle Dean. . . .

STATE V. SNOWDEN (continued)

Note that the statute mentioned in Snowden to describe first-degree murder is used by many jurisdictions. Those murders that result from poisoning, follow torture, or are traditional felony-murders are often designated first-degree murder. Following the attacks of September 11, 2001, some states amended their statutes to include deaths resulting from terrorist activity in the classification of first degree murders.6 Second- degree murder is commonly given the negative definition “all murders that are not of the first degree are of the second.” Second-degree murders differ from first in that the defendant lacked the specific intent to kill or lacked the premeditation and deliberation element of first-degree murder.

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110 Part i Criminal Law

Fourth, in some situations, defendants have claimed that, because of the low prob- ability of infecting another person, it is a factual impossibility to commit murder using AIDS. Fifth, AIDS may be characterized as a deadly weapon, and therefore, a charge of assault may be elevated to assault with a deadly weapon. Similarly, attacks leading to death may be treated as murder under the deadly weapon doctrine.

In most states, preexisting laws (e.g., murder, attempted murder, and intentional transmission of venereal disease) are relied upon to prosecute AIDS-related crimes. However, a few states have enacted statutes specifically directed at the intentional or negligent transmission of AIDS.

Manslaughter At common law, murder was an unlawful killing with malice aforethought. Manslaughter was an unlawful killing without malice aforethought. Just as was the case with murder, the common law did not divide manslaughter into degrees. Whenever the states began codifying homicides, it was common for manslaughter to be divided into degrees, commonly referred to as voluntary and involuntary, although a few jurisdictions used first- and second-degree language. Today, many jurisdictions continue to recognize two forms of manslaughter.

The important fact is that manslaughter is a lesser crime than murder; accordingly, it is punished less severely. It is a lesser crime because some fact or facts exist that make the defendant less culpable than a murderer in the eyes of the law. The most common fact that mitigates a defendant’s culpability is the absence of a state of mind that soci- ety has decided should be punished as murder. Even though society has decided that, because of such extenuating circumstances, a defendant should not be punished as a murderer, it has also decided that some punishment should be inflicted.

Provocation Provocation of the defendant by the victim can reduce a homicide from murder to man- slaughter. In jurisdictions that grade manslaughter, a provoked killing is treated as the higher manslaughter, whether that provoked killing is called first-degree or voluntary.

The theory of provocation, also known as “heat-of-passion manslaughter,” is that a defendant was operating under such an anger or passion that it was impossible for the defendant to have formed the desire to kill, which is required for both first- and second-degree murder. The defense of provocation applies to instances in which people act without thinking, and their impulsive act is the result of the victim’s behavior.

Again, an objective test is used when examining the defense of provocation. To prove provocation, it must be shown that the provoking act was so severe that a reasonable per- son may also have killed. It does not require that a reasonable person would have killed, only that a reasonable person would have been so affected by the act that homicide was possible. A few states have enumerated the acts that may function to negate intent to kill (and reduce the homicide to manslaughter) in their manslaughter statutes. Any act not included may not be used by a defendant to reduce a murder charge.

Catching one’s spouse in the act of adultery is an example of an act that is consid- ered adequate provocation to reduce any resulting homicide to manslaughter. This rule

manslaughter

■ A crime, less severe

than murder, involving the

wrongful but nonmalicious

killing of another person.

provocation

■ An act by one person

that triggers a reaction of

rage in a second person.

Provocation may reduce the severity of a crime.

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applies only to marriages and not to other romantic relationships. Generally, serious assaults (batteries) may constitute adequate provocation.

If two people are engaged in “mutual combat,” then any resulting death may be reduced from murder to voluntary manslaughter. The key to this defense is mutuality. If it can be shown that the victim did not voluntarily engage in the fight, then the de- fense of mutual combat is not applicable, and the defendant is responsible for murder.

It is widely held that words and gestures are never adequate provocation. This is true regardless of how vile or vicious a statement or gesture is to the defendant. How- ever, some recent cases have distinguished statements that are informational from those that are not. In such situations, if a statement provides information of an act, and that act would be sufficient provocation, if witnessed, then the statement may also be provocation.

In the Schnopps case, the trial judge refused to instruct the jury on the alternative of manslaughter, as opposed to murder. The trial judge followed the rule that statements are never adequate provocation. The appellate court reversed the judge, holding that the statements made by the defendant’s wife directly before he killed her may have been adequate provocation for a jury to find voluntary manslaughter and not murder.

Usually, when claiming adultery as provocation, one must actually have caught his or her spouse in the act. Also, the general rule is that words are not adequate provoca- tion. What did the court do in the Schnopps case? It appears that the court attempted to sidestep those rules, in a manner that would permit the benefit of the defense without changing the rules. It did this by holding that in adulterous situations, an admission of adultery to one’s spouse, when uttered for the first time, is as shocking as finding one’s spouse engaged in the act.

On October 13, 1979, Marilyn R. Schnopps was fatally shot by her estranged husband George A. Schnopps. A jury convicted Schnopps of murder in the first degree, and he was sentenced to the man- datory term of life imprisonment. Schnopps claims that the trial judge erred by refusing to instruct the jury on voluntary manslaughter. We agree. We re- verse and order a new trial. . . .

Schnopps testified that his wife had left him three weeks prior to the slaying. He claims that he first became aware of the problems in his 14-year mar- riage at a point about six months before the slaying.

According to the defendant, on that occasion he took his wife to a club to dance, and she spent the evening dancing with a coworker. On arriving home, the defen- dant and his wife argued over her conduct. She told him that she no longer loved him and that she wanted a divorce. Schnopps became very upset. He admitted that he took out his shotgun during the course of this argument, but he denied that he intended to use it. . . . [The defendant and his wife continued to have marital problems for the next few months.]

On the day of the killing, Schnopps had asked his wife to come to their home and talk over their

COMMONWEALTH V. SCHNOPPS 383 Mass. 178, 417 N.E.2d 1213 (1981)

(continued)

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marital difficulties. Schnopps told his wife that he wanted his children at home, and that he wanted the family to remain intact. Schnopps cried during the conversation and begged his wife to let the chil- dren live with him and to keep their family together. His wife replied, “No, I am going to court, you are going to give me all the furniture, you are going to get the Hell out of here, and you won’t have noth- ing.” Then, pointing to her crotch, she said, “You will never touch this again, because I have got something bigger and better for it.”

On hearing those words, Schnopps claims that his mind went blank, and that he went “berserk.” He went to a cabinet and got out a pistol he had bought the day before, and he shot his wife and himself. . . . [Schnopps lived and his wife died.]

Schnopps argues that “[t]he existence of suf- ficient provocation is not foreclosed absolutely because a defendant learns of a fact from oral state- ments rather than from personal observation,” and that a sudden admission of adultery is equivalent to a discovery of the act itself, and is sufficient evi- dence of provocation.

Schnopps asserts that his wife’s statements constituted a “peculiarly immediate and intense of- fense to a spouse’s sensitivities.” He concedes that the words at issue are indicative of past as well as

present adultery. Schnopps claims, however, that his wife’s admission of adultery was made for the first time on the day of the killing and hence the evidence of provocation was sufficient to trigger jury consideration of voluntary manslaughter as a possible verdict.

The Commonwealth quarrels with the defen- dant’s claim, asserting that the defendant knew of his wife’s infidelity for some months, and hence the killing did not follow immediately upon the provo- cation. Therefore, the Commonwealth concludes, a manslaughter instruction would have been im- proper. The flaw in the Commonwealth’s argument is that conflicting testimony and inferences from the evidence are to be resolved by the trier of fact, not the judge.

Withdrawal of the issue of voluntary man- slaughter in this case denied the jury the oppor- tunity to pass on the defendant’s credibility in the critical aspects of his testimony. The portion of Schnopps’ testimony concerning provocation cre- ated a factual dispute between Schnopps and the Commonwealth. It was for the jury, not the judge, to resolve the factual issues raised by Schnopps’ claim of provocation.

Reversed and remanded for new trial on the manslaughter issue.

COMMONWEALTH V. SCHNOPPS (continued)

Finally, the defense will not be available if there was a sufficient “cooling-off ” period. That is, if the time between the provocation and the homicide was long enough for a defendant to regain self-control, then the homicide will be treated as murder and not manslaughter.

Imperfect Self-Defense and Defense of Others If Aryana harms Ita while defending herself from Ita’s attack, Aryana is said to have acted in self-defense. Self-defense, when valid, normally works to negate criminal li- ability entirely. So, if Aryana kills Ita to avoid serious bodily harm or death, she has

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committed an excused homicide. What happens if Aryana was incorrect in her belief that her life was endangered by Ita? This is known as an imperfect self-defense and does not negate culpability entirely. It may, however, reduce liability. Thus, Aryana may be liable only for voluntary manslaughter and not murder. For Aryana to be successful in her claim, she must prove that she had a good-faith belief that her life was in danger and that the killing appeared to be necessary to protect herself.

A person may also have an imperfect self-defense when an excessive amount of force is used as protection. So, if Aryana was correct in her belief that she needed to use force for her protection, but used excessive force, she receives the benefit of reduced liability. Again, there must be a reasonable, although incorrect, belief that the amount of force used was necessary.

The concept of self-defense is extended to the defense of others. So, if Aryana kills Ita while defending Thea and Haris from apparent imminent harm, Aryana is no more liable than if she were defending herself. Just as with an imperfect self-defense, if individuals have a mistaken, but reasonable, belief that another is in danger, and they kill as a result of that belief, they are responsible for voluntary manslaughter rather than murder. Also, if one uses deadly force when a lesser amount of force would have been sufficient to stay the attack, liability is limited to manslaughter, provided that the belief that deadly force was necessary was reasonable under the circumstances.

Involuntary Manslaughter The lowest form of criminal homicide in most jurisdictions is involuntary manslaugh- ter, sometimes named second-degree manslaughter. In most instances involuntary manslaughter is a form of negligent or reckless manslaughter.

You have already learned the misdemeanor manslaughter rule. In jurisdictions that recognize the rule, the person who commits the misdemeanor that results in an unin- tended death is responsible for the lowest form of criminal homicide.

Involuntary manslaughter also refers to negligent homicide, vehicular homicide, and similar statutes that punish for unintended, accidental deaths. The classic vehicular homicide is when a motorist runs a red light, strikes another car, and causes the death of the driver or passenger of that automobile. Some states, such as Illinois, make ve- hicular homicide a separate crime from involuntary manslaughter and impose a lesser punishment for vehicular homicide.10

Be aware that many states now have specific statutes dealing with deaths caused by intoxicated drivers. Often the punishment is greater if the death is the result of a drunk or otherwise impaired driver.

The term negligent has a different meaning in criminal law than in civil law. In tort law, any unreasonable act that causes an injury creates tort liability. In criminal law, more must be shown. The risk taken by the defendant must be high and pose a threat of death or serious bodily injury to the victim. In addition, some jurisdictions require that the defendant be aware of the risk before liability can be imposed. Of course, knowledge can be inferred from the defendant’s actions. Some jurisdictions do not require knowledge of the risk (scienter).

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The Model Penal Code Approach to Homicide The Model Penal Code states, “A person is guilty of criminal homicide if he purposely, knowingly, recklessly, or negligently causes the death of another human being.”11 The Code then classifies all criminal homicides as murder, manslaughter, or negligent homicide. This is done by taking the four mens rea elements (purposeful, knowing, reckless, and negligent) and setting them into one of the classifications. There is some overlap; for example, under some conditions a reckless homicide is murder, and under other conditions it is manslaughter. Let us look at the specifics of the Code.

It is unsurprising that, all purposeful and knowing homicides are murder under the Model Penal Code. Additionally, a reckless homicide is murder when committed “under circumstances manifesting extreme indifference to the value of human life.” The Code then incorporates a “felony-murder” type rule, by stating that recklessness and indifference to human life are presumed if the accused was engaged in the commission or attempted commission of robbery, rape, arson, burglary, kidnapping, or felonious escape. So, if the accused are involved in one of those crimes, and a death results, they may be charged with murder under the Code. Note that the Code creates only a pre- sumption of recklessness and indifference, which may be overcome at trial. Murder is the highest form of homicide, and the Code declares it to be a felony of the first degree.

Manslaughters are felonies of the second degree under the Code. All reckless ho- micides, except those previously described, are manslaughters. As at common law, the Code contains a provision that reduces heat-of-passion murders to manslaughter. Specifically, the Code states that a homicide, which would normally be murder, is manslaughter when it is

committed under the influence of extreme mental or emotional disturbance for which there is 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 he believes them to be.

Last, negligent homicides are entitled just that. They are felonies of the third degree.

Life, Death, and Homicide The actus reus of murder and manslaughter is the taking of a human life. Determining when life begins and ends can be a problem in criminal law, especially when dealing with fetuses.

At common law it was not a crime to destroy a fetus, unless it was “born alive.” To be born alive, the fetus must leave its mother’s body and exhibit some ability to live independently. Some courts have required that the umbilical cord be cut and that the fetus show its independence thereafter before it was considered a human life. Breathing and crying are both proof of the viability of the child.

Today, many states have enacted feticide statutes that focus on the viability of the fetus. Once it can be shown that the fetus is viable—that is, could live indepen- dently if it were born—then anyone who causes its death has committed feticide. Of course, this does not apply to abortion. Since the United States Supreme Court

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decision in Roe v. Wade, 410 U.S. 113 (1973), a woman possesses a limited right to abort a fetus she carries. Thus, states may not prohibit abortions that are protected under that decision. The primary purpose of feticide statutes is to punish individu- als who kill fetuses without the mother’s approval, as occurred in the Keeler case (see Chapter 2).

At the other end of the life continuum is death. Medical advances have made the determination of when death occurs more complex than it was only years ago. For a long time, people were considered dead when they ceased breathing and no longer had a heartbeat. Today, artificial means can be used to sustain both heart action and respira- tion. That being so, should one be free of criminal homicide in cases where the victim is being kept “alive” by artificial means and there is no reasonable hope of recovery? Should a physician be charged with murder for “pulling the plug” on a patient who has irreversible brain damage and is in a coma? Using the respiration and heart-function test, it would be criminal homicide to end such a treatment. However, many states now use brain death, rather than respiration and heartbeat, to determine when life has ended. In states that employ a brain death definition, it must be shown that there is a total cessation of brain function before legal death exists. The importance of defining death is illustrated by the Fierro case.

The facts necessary for a resolution of this matter on appeal are as follows between 8 and 9 o’clock on the evening of 18 August 1977, Victor Corella was given a ride by Ray Montez and his wife Sandra as they were attempting to locate some marijuana. In the vicinity of 12th Street and Pima, Ray Montez heard his name called from another car. He stopped his car, walked over to the other car and saw that the passenger who had called his name was the defendant Fierro. Defendant told Ray Montez that his brother in the “M,” or “Mexican Mafia,” had in- structed the defendant to kill Corella. Ray Montez told defendant to do it outside the car because he and his wife “did not want to see anything.”

Montez returned to his car. Defendant followed and began talking with Corella. Corella got out of

the car. Montez started to drive away when defen- dant began shooting Corella. Corella was shot once in the chest and four times in the head. Following the shooting, Corella’s body was taken to the emer- gency room at Maricopa County Hospital. His blood pressure was very low due to secondary bleeding from the gunshot wound to the chest area. Surgery was performed in an effort to control the bleeding. He was then taken to the surgical intensive care unit, where a follow-up examination and evaluation revealed that he had suffered brain death. Corella was maintained on support systems for the next three days while follow-up studies were completed which confirmed the occurrence of brain death. The supportive measures were terminated and he was pronounced dead on 22 August 1977. . . .

STATE V. DAVID FIERRO 124 Ariz. 182, 603 P.2d 74 (1979)

(continued)

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Cause Of Death

At the trial, Dr. Hugh McGill, a surgical resident at the Maricopa County Hospital, testified that:

After surgery he was taken to the intensive-care unit.

He was evaluated by a neurosurgeon who felt there

was nothing we could do for his brain, he had brain

death. He remained somewhat stable over the next

two or three days. We had follow-up studies that con-

firmed our impression of brain death and because of

that supportive measures were terminated and he

was pronounced dead, I believe, on the 22nd. . . .

Defendant initially argues that the termination of support systems by attendant doctors three days after Corella suffered “brain death” was the cause of Corella’s death [and as such, he could not be re- sponsible for Corella’s death]. . . .

by the phrase “unchanged by human action” in Drury, we meant human action that changes or breaks the chain of natural events and of itself causes the death of the victim. In the instant case, the removal of life support systems did not change nor alter the natural progression of the victim’s physical condition from the gunshot wounds in the

head to his resulting death. There was no change “by human action.” . . .

In the instant case, the body of the victim was breathing, though not spontaneously, and blood was pulsating through his body before the life support mechanisms were withdrawn. because there was an absence of cardiac and circulatory arrest, under the common-law rule, he would not have been legally dead. Under the Harvard Medical School test and Pro- posal of the National Conference of Commissioners on Uniform State Laws, he was, in fact, dead before the life supports were withdrawn as he had become “brain” or “neurologically” dead prior to that time.

We believe that while the common-law defi- nition of death is still sufficient to establish death, the [brain death test] is also a valid test for death in Arizona. In the instant case, expert testimony was received, which showed that the victim suffered irreversible “brain death” before the life supports had been withdrawn. In effect, the doctors were just passively stepping aside to let the natural course of events lead from brain death to common-law death. In either case, the victim was legally dead for the purpose of the statute. . . .

STATE V. DAVID FIERRO (continued)

Suicide Successful suicide was a crime under the common law of England. The property owned by the one who committed suicide was forfeited to (taken by) the Crown. In early American common law, attempted suicide was a crime, usually punished as a misde- meanor. Today suicide is not treated as a crime. However, it is possible to restrain and examine individuals who have attempted to commit suicide under civil psychiatric commitment laws.

It continues to be criminal to encourage or aid another to commit suicide. In most situations such a commission is treated as murder. Assisting suicide may be treated as murder, or, as in Michigan, it may be a separate crime that is punished less severely.

The most well-known suicide cases involve Dr. Jack Kevorkian of Michigan. Dr. Kevorkian, a physician, assisted 20 terminally ill persons in committing suicide between 1990 and 1994, earning him the nickname Dr. Death.

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Dr. Kevorkian’s license to practice medicine was suspended in 1991 for his behav- ior, and criminal charges have been filed against him on several occasions. The first three cases were dismissed because the statute under which he was charged was held unconstitutional.

The Michigan legislature enacted a law in February 1993 that provided for as much as 4 years’ imprisonment and a $2,000 fine for providing the physical means by which another attempts or commits suicide or participates in a physical act by which another attempts or commits suicide. The person charged must have had knowledge that the other person intended to commit suicide.12

In 1999 Dr. Kevorkian allowed the news program 60 Minutes to nationally broad- cast his act of assisting Thomas Youk to die. However, Dr. Kevorkian went further than he had in previous cases. Rather than providing a machine to the patient that could assist in death, Dr. Kevorkian administered a lethal injection to Mr. Youk. He then challenged Michigan prosecutors to charge him again. They did, and Dr. Kevorkian was convicted of murder and sentenced to 10 to 25 years in prison. He was paroled in 2007 after serving 8 years in prison and died 4 years later.

While Dr. Kevorkian may have gone too far in committing euthanasia, his first three acquittals suggest that there is public support for physician-assisted suicide. In 1997 Oregon enacted the Death With Dignity Act. This law, which decriminalizes physician-assisted suicide under certain circumstances, is the first law of its type in U.S. history.13 Whether other states will follow Oregon’s lead remains to be seen. It will take individual state action to pave the way for physician-assisted suicide, however, since the Supreme Court handed down Washington v. Glucksberg (1997).14 In Glucksberg the Court found that terminally ill patients do not possess a privacy or due process right in having physicians assist them in committing suicide. Accordingly, state action is required to recognize the right.

Corpus Delicti Corpus delicti is a Latin phrase that translates as “the body of a crime.” Prosecutors have the burden of proving the corpus delicti of crimes at trial. Every crime has a corpus delicti. It refers to the substance of the crime. For example, in murder cases the cor- pus delicti is the death of a victim and the act that caused the death. In arson, the corpus delicti is a burned structure and the cause of the fire.

A confession of an accused is never enough to prove corpus delicti. There must be either direct proof or evidence supporting a confession.

In murder cases the corpus delicti can usually be proved by an examination of the victim’s corpse. After an autopsy a physician is usually prepared to testify that the al- leged act either did, or could have, caused the death. In some instances, the body of a victim cannot be located. Such “no body” cases make the job of the prosecution harder. Even so, if evidence—such as blood stains and discovered personal effects—establishes that the person is dead, then murder may be proven. Of course, the prosecution must also show that the defendant caused the death. So, if a defendant confesses to a mur- der, or makes other incriminating statements, and no other evidence is found, then no

corpus delicti

■ (Latin) “The body of

the crime.” The material

substance upon which a

crime has been committed;

for example, a dead body

(in the crime of murder) or

a house burned down

(in the crime of arson).

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corpus delicti exists, and the defendant cannot be convicted. However, if blood match- ing the victim’s is discovered where the defendant stated the murder occurred, then a murder conviction can be sustained.

aSSault and Battery Assault and battery are two different crimes, although they commonly occur together. As with homicide, all states have made assaults and batteries criminal by statute.

A battery is an intentional touching of another that is either offensive or harmful. The mens rea element varies among the states; however, most now provide for both in- tentional and negligent battery. Of course, negligence in criminal law involves a greater risk than in civil law. To be negligent in criminal law, there must be a disregard of a high risk of injury to another; in tort law, one need only show a disregard of an ordinary risk. The Model Penal Code provides for purposeful, knowing, and reckless batteries. In addition, if one uses a deadly weapon, negligence may give rise to a battery charge. Otherwise, negligence may not provide the basis for a battery conviction.

The actus reus of battery is a touching. An individual need not touch someone with his or her actual person to commit a battery. Objects that are held are considered extensions of the body. If Sherry strikes Doug with an iron, she has battered him even though her person never came into contact with his. Likewise, items thrown at another are extensions of the person who took the act of propelling them into the air. If Doug were to injure Sherry with a knife he threw at her, then he has battered her.

A touching must be either offensive or harmful to be a battery. Of course, any re- sulting physical injury is proof of harm. The problem arises when one touches another in a manner found offensive to the person being touched, but there is no apparent physical injury. For example, a man who touches a woman’s breast without her consent has committed a battery because the touching is offensive. If a person touches another in an angry manner, a battery has been committed, even though the touching was not intended to injure the party and in fact does no harm.

There are two varieties of assault. First, when a person puts another in fear or apprehension of an imminent battery, an assault has been committed. For example, if Gary attempts to strike Terry, but Terry evades the swing by ducking, Gary has com- mitted an assault. The rule does not require that the victim actually experience a physical blow; apprehension of an impending battery is sufficient. Apprehension is simply an expectation of an unwanted event. Also, the threat must be imminent to rise to the level of an assault. A threat that one will be battered in the future is not sufficient. So, if Terry told Gary that he was “going to kick the shit out of him in one hour,” there is no assault.

Because an apprehension by the victim is required, there is no assault under this theory if the victim was not aware of the assault. For example, if X swings his arm at Y intending to scare Y, but Y has her back turned and does not see X’s behavior, then there is no assault. This is not true of batteries. If X strikes Y, a battery has been com- mitted, regardless of whether Y saw the punch coming.

assault

■ An intentional threat,

show of force, or movement

that could reasonably make

a person feel in danger of

physical attack or harmful

physical contact. It can be a

crime or tort.

battery

■ An intentional,

unconsented to, physical

contact by one person (or

an object controlled by

that person) with another

person. It can be a crime

or a tort.

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The second type of assault is an attempted battery. This definition remedies the problem just discussed. Any unsuccessful battery is an assault, regardless of the victim’s knowledge of the act. Of course, it must be determined that the act in question would have been a battery if it had been completed.

To prove battery, it must be shown that a contact was made. Making contact is not necessary to prove an assault. However, it is possible to have both an assault and a battery. If John sees Henry swing the baseball bat that strikes John, there has been an assault and battery. However, due to the doctrine of merger, the defendant will be punished only for the higher crime of battery.

Aggravated Assault and Battery Under special circumstances, an assault or battery can be classified as aggravated. If aggravated, a higher penalty is imposed. The process of defining such crimes as more serious than simple assaults and batteries varies. Statutes may call such crimes aggra- vated assault or battery; or they may refer to specific crimes under a special name, such as assault with intent to kill; or they may simply use the facts at the sentencing stage to enhance (increase) the sentence; or they may refer to such crimes as a higher assault, such as felony assault rather than misdemeanor assault. In any event, the following facts commonly aggravate an assault or battery.

The assault is aggravated if the assault or battery is committed while the actor is engaged in committing another crime. So, if a man batters a woman while possessing the specific intent to rape her, he has committed an aggravated battery. This is true regardless of whether the rape was completed. If a defendant is stopped before he has committed the rape, but after he has assaulted or battered the victim, there has been an aggravated battery. Hence the crime may be titled “assault with intent to commit rape” or “assault with intent to murder.”

It is also common to make assault and battery committed on persons of some special status more serious. Law enforcement officers or other public officials often fall into this category. Of course, the crime must relate to the performance or status of the officer to be aggravated. For example, if an off-duty police officer is struck by an angry

Crime in tHe united StateS

In 2011, there were 751,131 aggravated assaults in the United States; that is, 241 aggravated assaults per 100,000 people. between 2002 and 2011, re- ported aggravated assaults declined more than 22 percent.

Source: Uniform Crime Reports, U.S. Department of Justice, Federal Bureau of Investigation, 2012.

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neighbor over a boundary dispute, the battery is not aggravated. Examples of other protected classes of individuals are minors and the mentally disabled.

The extent of injury to the victim may also lead to an increased charge. Usually a battery may be aggravated if the harm rises to the level of “serious bodily injury.” Some statutes specifically state that certain injuries aggravate the crime of battery, such as the loss of an eye. Mayhem, a related crime, is discussed next.

mayHem Mayhem, originally a common-law crime, is the crime of intentionally dismembering or disfiguring a person. The crime has an interesting origin. In England, all men were to be available to fight for the king. It was a serious crime to injure a man in such a manner as to make him unable to fight. Early punishments for mayhem were incarceration, death, and the imposition of the same injury that had been inflicted on the victim. Originally, only dismemberment that could prevent a man from fighting for the king was punished as mayhem. As such, cutting off a man’s leg or arm was punishable, whereas cutting off an ear was not. Of course, causing a disfigurement was not mayhem.

Today, both disfigurement and dismemberment fall under mayhem statutes. Many jurisdictions specifically state what injuries must be sustained for a charge of mayhem. Causing another to lose an eye, ear, or limb are examples, as is castration.

Some states no longer have mayhem statutes. They have chosen to treat such crimes as aggravated batteries.

Sex CrimeS This section deals with crimes that involve sex. Keep in mind that crimes such as assault and battery may be sexually motivated. For example, if a man touches a woman’s breast, he has committed a battery (provided that the touching was unwelcome).

The term “sex crimes” actually encompasses a variety of sexually motivated crimes. Rape, sodomy, incest, and sexually motivated batteries and murders are included. Ob- scenity, prostitution, abortion, distribution of child pornography, and public nudity are examples of other sex-related offenses.

Although certain offenses are universally prohibited, other offenses vary among the states. For example, rape is criminal in all states, but prostitution is not.

Rape At common law, the elements of rape were (1) sexual intercourse with (2) a woman, not the man’s wife (3) committed without the victim’s consent and by using force. Many problems were encountered with this definition. First, the common-law defi- nition required that the rapist be a man. Hence, women and male minors could not be convicted of rape. Also, the marital rape exception provided that men could not be convicted of raping their wives. Similarly, a man could not be charged with battering

rape

■ The crime of imposing

sexual intercourse by

force or otherwise without

legally valid consent.

mayhem

■ The crime of violently,

maliciously, and

intentionally giving

someone a serious

permanent wound. In

some states, a type of

aggravated assault. Once,

the crime of permanently

wounding another (as

by dismemberment) to

deprive the person of

fighting ability.

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his wife if the battery was inflicted in an effort to force sex. This exception was founded upon the theory that when women married they consented to sex with their husbands upon demand. Additionally, many courts wrote that to permit a woman to charge her husband with such a crime would lead to destruction of the family unit. Finally, the last requirement, with force and without consent, led many courts to require victims to resist the attack to the utmost and to continue to resist during the rape.

States have changed the common-law definition of rape to remedy these problems. First, most states have worded their statutes to permit minors and women to be charged with rape. While there are few cases of women actually raping men, or other women, there are several cases where women have been convicted as principals to the crime.15 The Model Penal Code is gender neutral regarding all sex crimes except rape.16

The marital rape exception has been abolished in most states. A few states have re- tained the rule in modified form; Ohio, for example, provides immunity to a husband except when he is separated from his wife.17

Finally, the last requirement has changed significantly. A person need not resist to the extent required under the common law. What is required now is proof that the victim did resist. However, a victim need not risk life or serious bodily injury in an attempt to prevent the rape. So, if a woman simply tells a man on a date, “I don’t want

reCidiViSm By Sexual oFFenderS

Special legislation dealing with sexual predators can be found as early as 1930. In recent years, states have enacted laws requiring treatment after re- lease from prison, monitoring after release, castration as part of sentences, and civil commitment of offenders after release. One reason sexual offend- ers receive so much attention is the apparent inability to treat and reform them. The recidivism rate of sexual offenders is much higher than that of those who commit other crimes. One study found that rapists and child molesters reported that they had committed five or more sexual offenses for which they had not been arrested. As many as 50 percent of all sexual offenders will reoffend after being released from prison. Within three years of release, 7.7 percent of rapists commit another rape. Nearly one-third of rapists commit some form of violent crime within three years of release.

Contrary to a prevailing myth, a sex offender’s likelihood of reoffending does not diminish with age. Some experts believe what is critical is iden- tifying potential sex offenders at an early age. Research has shown that the level of violence committed by sex offenders increases as their acts go undiscovered.

Source: Steven I. Friedland, “On Treatment, Punishment, and the Civil Commitment of Sex Offenders,” 70 U. Colo. L. Rev. 73 (1999).

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CHAPTER 5 Chapter Outline Arson Burglary Theft Crimes

Introduction to Theft Crimes Larceny Embezzlement False Pretenses Receiving Stolen Property Robbery Extortion Consolidated Theft Statutes Identity Theft The Model Penal Code Consolidation Destruction of Property Computer Theft Crimes

Ethical Considerations: The Ineffective Assistance of Counsel

Chapter Objectives

After completing this chapter you should be able to:

• list the elements of historic and contemporary crimes involving property and habitation, such as arson, burglary, and larceny.

• identify the crimes of arson, burglary, and larceny in given fact scenarios.

• describe how computers and the Internet have given rise to new ways to commit old crimes and how the law is changing to deal with these developments.

• identify the material facts and legal issues in one-third of the cases you read, and describe the court’s analyses and conclusions in the cases.

CRimEs AgAinsT PRoPERTy And HAbiTATion

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Arson Michael Marin, former Wall Street trader, Yale University School of Law graduate, and believed-to-be a millionaire, called the Phoenix, Arizona emergency line on July 5, 2009, to report that his estate mansion was ablaze. He reported having escaped the fire by wearing scuba gear to avoid the inhalation of smoke, and scaling down a rope ladder from the second floor. Later it was discovered that Marin was broke and unable to pay his bills. Police also discovered, thanks in part to a well-trained canine, that the fire was set intentionally. Marin was charged with arson and convicted in 2012. Moments after the verdict was read, Marin was seen on a court television monitor taking a drink from a sports bottle. He collapsed and died. Subsequent test- ing revealed that he ingested the poison cyanide. Oddly, the day Marin set fire to his home is the day of the greatest number of arsons in U.S. history, according to one source.1

Arson is a crime against property. In addition, it is a crime against habitation. Crimes against habitation developed because of the importance of peoples’ homes. In England and the United States, the concept that a “man’s home is his castle” has great influence. A home is not merely property but, rather, a refuge from the rest of the world. As such, special common-law crimes developed that sought to protect this important sanctuary. Arson and burglary are such crimes.

At common law, arson was defined very narrowly. It was the (1) malicious (2) burning of a (3) dwelling house of (4) another. This definition was so narrowly construed that owners could burn their own property with an intent to defraud their insurers and not be guilty of arson, because they did not burn the dwelling of another.2 In addition, the structure burned had to be a dwelling, which was defined as a structure inhabited by people. This definition did include outhouses and the area directly around the home (curtilage), as long as the area was used frequently by people. However, the burning of businesses and other structures was not arson.

To be a burning, the dwelling must actually sustain some damage, although slight damage was sufficient. If the structure is simply charred by the fire, there is a burning. However, if the structure is only smoke-damaged or discolored by the heat of a fire that never touched the building, there is no arson. Finally, causing a dwelling to explode is not arson, unless some of the dwelling is left standing after the explosion and is then burned by a fire caused by the explosion.

At common law, malice was the mens rea of arson. As was true of murder at com- mon law, malice meant evil intent. However, an intentional or extremely reckless burn- ing would suffice.

Today, the definition of arson has been broadened by statute in most, if not all, states. It is now common to prosecute owners of property for burning their own build- ings, if the purpose was to defraud an insurer or to cause another injury. Be aware that the fraud may constitute a separate offense: defrauding an insurance carrier. Also, the structure burned need not be a dwelling under most statutes, though most statutes ag- gravate the crime if a dwelling is burned. Although the common law did not recognize explosions as a burning, the Model Penal Code and most statutes do.3

arson

■ The malicious and

unlawful burning of a

building.

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Chapter 5: Crimes Against Property and Habitation 145

The mens rea for arson under the Model Penal Code is purposeful and reckless. If a person starts a fire or causes an explosion with the purpose of destroying the building or defrauding an insurer, a felony of the second degree has been committed. It is a felony of the third degree to purposely start a fire or cause an explosion and thereby recklessly endanger a person or structure.4 Note that under the Model Penal Code the fire need not touch the structure, as was required by the common law. Setting the fire is enough to satisfy the burning requirement.

Arson is often graded. The burning of dwellings is usually the highest form of the crime. The burning of uninhabited structures is usually the next highest form of arson, and arson of personal property, if treated as arson, is the lowest.

BurglAry The (1) breaking and entering (2) of another’s dwelling (3) at night (4) for the purpose of committing a felony once inside, was burglary at common law. A burglary, or entry of a dwelling, may be for the purpose of theft, rape, murder, or another felony. For that reason, burglary is a crime against habitation, as well as against property and person.

CrIME In THE unITED sTATEs

In 2011, a total of 52,333 arsons were reported. There were 18 offenses per 100,000 residents in that year.

Source: Crime in the United States, U.S. Department of Justice, Federal Bureau of Investigation, 2012.

CrIME In THE unITED sTATEs

In 2011 there was a total of slightly fewer than 2.2 million burglaries and attempted forcible entries to structures in the United States. Of all the prop- erty crimes in 2011 in the United States, 24% were burglaries. Unlike many crimes, burglary is on the rise, the 2009 rate being 1.7% higher than the 2002 rate. Of all burglaries, 75% percent are of residences. Most residential burglaries occur during the day, while most nonresidential burglaries occur at night.

Source: Crime in the United States, U.S. Department of Justice, Federal Bureau of Investigation, 2012.

burglary

■ Unlawfully entering

the house of another

person with the intention

of committing a felony

(usually theft).

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The first element, the actus reus, a breaking, can be satisfied by either an actual break-in or by a constructive breaking. If one enters a dwelling by simply passing through an open door or window (a trespass), there is no breaking. Generally, there has to be some act by the defendant to change the condition of the house so as to gain entry. For example, opening an unlocked door or window is a breaking, while pass- ing through an open door or window is not a breaking. Of course, picking a lock and breaking a window or door are breakings.

A burglar may also gain entry by a constructive breaking. A constructive breaking occurs when one uses fraud or force to gain entry. So, if a burglar poses as a telephone repair worker to gain entry, then the breaking element has been satisfied. The same is true if the owner consents to the burglar’s entry under threat or the use of force.

Once the breaking occurs, there must be an entry of the home. The burglar does not need to fully enter the structure; an entry occurs if any part of the burglar’s body enters the house. So, the individual who breaks a window and reaches in to grab an item has entered the house.

Modern statutes have eliminated the breaking requirement, although most still require some form of “unlawful entry.” Because trespasses, frauds, and breakings are unlawful, they satisfy modern statutory requirements.

The second element required is that the breaking and entry be of another person’s dwelling. As with arson, at common law the structure had to be a dwelling. The person who lives in the dwelling does not have to be the owner, only an occupant. As such, rental property is included. Interestingly, at least one court has held that churches are dwellings, regardless of whether a person actually resides in the church, premised on the theory that churches are God’s dwellings.5 The dwelling had to belong to another person, so one could not burglarize one’s own property. No jurisdiction continues to require that the structure be a dwelling. Most statutes now refer to all buildings or other structures.6 However, if the structure burglarized is a dwelling, most states punish the crime more severely than if it was another type of building.

Exhibit 5–1

Actual breaking through the door

Entry through a closed unlocked door is considered

a breaking

Entry through an open door is not a breaking

Gaining entry by threatening or

coercing occupant to open door is a

constructive breaking

Gaining entry through fraud

is a constructive breaking

Co py

rig ht

en ga

ge L

ea rn

in g®

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The third element was that the burglary occur at night. Although this is no longer an element of burglary, many states do aggravate the crime if it happens at night.

The fourth element is that the person entering must have as a purpose the com- mission of a felony once inside. This is the mens rea of the crime. If the person’s intent is only to commit a misdemeanor, there is no burglary. If Jay’s intent is to murder Mark, there is a burglary. It is not a burglary if Jay’s intent is to punch Mark in the nose.

Of course, many breakings and enterings with an intent to commit a burglaries are not completed. A burglar may be caught by surprise by someone who was not known to be inside and flee from the property. It also happens that burglars are caught in the act by occupants who return to the building. In any event, what is important is that the intended felony need not be completed. All that needs to be proven is that the accused entered with an intent to commit a felony. As is always true, proving a person’s subjec- tive mental state is nearly impossible. Thus, juries are permitted to infer intent from the actions of the defendant. A jury did just that in the Lockett case.

Some statutes now provide that intent to commit any crime is sufficient, whether misdemeanor or felony. However, many continue to require an intent to commit either felony or any theft.

Gerry Lockett was charged with residential burglary, convicted after a jury trial, and sentenced to 8 years imprisonment. . . .

At about 3:00 a.m. on November 27, 1987, Allan Cannon entered his apartment, which he shared with his sister. Cannon noticed a broken window in his sister’s bedroom. He then saw a man, whom he did not know, standing about six feet away from him in the apartment hallway. The only light came from the bathroom off the hallway. The man said to Cannon, “I know your sister.” Cannon fled the apart- ment to call the police from the nearby El station. Outside his apartment, Cannon saw the man run- ning down an alley. Cannon described the man to police as a dark black man with curly hair, about 5’5″ weighing about 200 pounds.

Cannon returned to his apartment and noticed that his bicycle had been placed on his bed, and that his sister’s baby clothes, which had been packed

in bags, had been thrown all over. Although the apartment was in a general state of disarray, which Cannon admitted was not uncommon, nothing had been taken. . . .

Lockett also argues, without merit, that the evidence could not support an inference of his intent to commit a theft. But when Cannon entered his apartment, he found a broken window and later noticed a rock and broken glass on the floor, indicating that the window had been broken from outside. Cannon also discovered contents of the apartment had been rearranged and thrown about. Even assuming that Lockett was, as he said, an acquaintance of Cannon’s sister, and that the Cannons, as defense counsel implied, were less than diligent housekeepers, Lockett’s presence, without permission, in the dark, empty apartment, at 3 a.m., supported the jury’s inference of intent to commit a theft.

STATE OF ILLINOIS V. GERRY LOCKETT 196 Ill. App. 3d 981, 554 N.E.2d 566 (1990)

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148 Part i Criminal Law

In summary, most jurisdictions have changed burglary in such a way that the following elements are common: (1) an unlawful entry (2) of any structure or building (3) for the purpose of committing a felony or stealing from the premises (4) once inside.

As mentioned, burglary may be graded and higher penalties imposed if the act occurred at night; involved a dwelling or was perpetrated at a dwelling that was actually inhabited at the time of the crime; or was committed by a burglar with a weapon. See Exhibit 5–1 for a summary illustration of burglary.

THEfT CrIMEs Introduction to Theft Crimes There are many types of theft. It is theft to take a pack of gum from a grocery store and not pay for it; for a lawyer to take a client’s trust fund and spend it on personal items; for a bank officer to use a computer to make a paper transfer of funds from a patron’s account to the officer’s with an intent to later withdraw the money and abscond; and to hold a gun on a person and demand that property and money be surrendered. How- ever, they are all fundamentally different crimes.

Some thefts are more violative of the person, such as robbery, and others are more violative of a trust relationship, such as an attorney absconding with a client’s money. The crimes also differ in the methods by which they are committed. A robbery involves an unlawful taking. Embezzlement, however, involves a lawful taking with a subse- quent unlawful conversion.

Larceny was the first theft crime. It was created by judges as part of the common law. The elements of larceny were very narrow and did not cover most thefts. Larceny began as one crime, but developed into many different crimes. This was not a fluid, orderly development, for two reasons. First, when larceny was first created, well over 600 years ago, the purpose of making it criminal was more to prevent breaches of the peace (fights over possession of property) than to protect ownership of property. Larceny did not prohibit fraudulent takings of another’s property. The theory was that an embezzlement or other theft by trick was less likely to result in an altercation (breach of the peace) between the owner and the thief, because the owner would not be aware of the theft until after it was completed. Using this theory, many courts were reluctant to expand the scope of larceny. Second, at early common law, larceny was punishable by death. For this reason, some judges were reluctant to expand its reach.7

Eventually, two other theft crimes were created, embezzlement and false pretenses. Despite the creation of these crimes, many theft acts continued to go unpunished because they fell into the cracks that separated the elements of the three common-law theft crimes. Some courts attempted to remedy this problem by broadening the definitions of the three crimes. However, computers, electronic banking, and other technological advances have led to new methods of stealing money and property, posing problems not anticipated by the judges who created the common-law theft crimes. Some states have changed their definitions of larceny, false pretenses, and embezzlement to be more contemporary. Other states have simply abandoned the common-law crimes and have enacted consolidated theft statutes. The common-law theft crimes, modern consolidated theft statutes, and the Model Penal Code approach to theft are discussed here.

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Larceny At common law the elements of larceny were (1) the trespassory taking (2) and carrying away (asportation) (3) of personal property (4) of another (5) with an intent to permanently deprive the owner of possession. The actus reus of larceny was the t aking and carrying away of personal property of another. The mens rea was the intent to permanently deprive the owner of possession.

To have had a common-law larceny, there must have been a “taking” of property. A taking alone would not have sufficed; the taking must have been unlawful or trespas- sory. That is, the property must be taken by the defendant without the owner’s consent. This element is concerned only with the method that the defendant used in acquiring possession. For example, if Mandy takes Sean’s wallet from his hand, she has commit- ted a taking. However, if Sean were to give Mandy his wallet with the understanding that she is to return it at a specified time, there is no unlawful taking when she does not return it; she lawfully acquired possession of the wallet. Taking property from another without that person’s consent was a trespass under the common law, but failing to return property was not.

In an effort to protect employers (masters) from theft by their employees (servants), the theory of constructive possession was created. This theory held that when an employee received actual possession of the employer’s property as part of the job, the employer maintained “constructive possession” while the employee had custody of the property. If this theory had not been developed, employees would have been free to steal property entrusted to them, as larceny required a trespassory taking. Of course, if an employee took property that was not under his or her care, there was a trespassory taking.

larceny

■ Stealing of any kind.

Some types of larceny are

specific crimes, such as

larceny by trick or grand larceny.

CrIME In THE unITED sTATEs

The United States Department of Justice includes the following as larceny for the purpose of the Uniform Crime Reporting Program: shoplifting, pocket-picking, purse-snatching, thefts from automobiles, thefts of motor vehicles, and all other thefts of personal property that occur without the use of force. The program shows that there were 6.2 million reported larcenies in the United States in 2011. This represents 1,977 thefts per 100,000 people, a decrease of 19 percent from 2002. Of all property crimes, 68% were thefts. The average loss for a victim was $987 with over $6 billion dollars in total loss to all victims of larceny. Motor vehicle parts are the most common items stolen. In addition, over 715,000 automobiles were stolen in 2011, or 230 per 100,000 people, a 43% decline since 2002.

Source: Crime in the United States, United States Department of Justice, Federal Bureau of Investigation, 2012.

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150 Part i Criminal Law

Interestingly, the theory of constructive possession was never extended to other relationships. This led to the creation of a new crime—embezzlement.

Once the taking has been effected, the defendant must carry away the property. This carrying away is called asportation. Generally, any asportation, even slight move- ment, will satisfy this requirement. The term asportation is deceiving, as not all prop- erty has to be “carried away” to satisfy this requirement. Riding a horse away will satisfy the requirement, as will driving another’s automobile. Most states have done away with the asportation requirement by statute.

Third, the item stolen must be personal property. Land and items attached to land (e.g., houses) are considered real property. Theft of such property was not larceny. All other property is personal property. Objects that are movable property are personal property. In the early years of larceny, there was a further requirement that the item sto- len be tangible personal property. Tangible personal property includes most items, such as automobiles, books, electronic equipment, and the like. Documents, such as stocks, bonds, and promissory notes, which represent ownership of something, are considered intangible property. It was not larceny to steal intangible personal property. Under modern statutes, most states have broadened theft to include all types of property.

The fourth element is that the personal property taken and carried away must be owned by another. One cannot steal from oneself. However, the rule was extended to prohibit prosecution of a partner for taking partnership assets and joint tenants from taking each other’s things; also, because husband and wife were one person under the common law, it was not possible for spouses to steal from one another.

Finally, the mens rea element: It is required that the defendant intend to perma- nently deprive the owner of possession of the property. In short, to be a thief one must have an intent to steal. If Jack takes Eddie’s lawn mower, intending to return the mower when he has completed his mowing, he has not committed larceny, as he did not pos- sess an intent to permanently deprive Eddie of his possession of the mower. Also, the accused must intend to deprive an owner (or possessor) of property to be guilty of larceny. If an accused had a good-faith belief that he had lawful right to the property, the requisite mens rea did not exist, and there was no larceny.

Although proving “an intent to permanently deprive the owner of possession” is the common method of proving the mens rea of larceny, it is not the only method. Courts have held that if the property is held so long that it causes the owner to lose a significant portion of its value, a larceny has occurred. Some cases have held that if the property is taken with an intent to subject the property to substantial risk, there is a larceny. Of course, the intent must exist at the time of taking. To illustrate this last method, imagine a thief who steals a plane intending to use it in a daredevil show. In such a case the thief is subjecting the property to a substantial risk, and even though the intent was to return the plane when the show was over, there is a larceny.

Embezzlement The definition of larceny left a large gap that permitted people in some circumstances to steal from others. That gap was caused by requiring a trespassory taking of the prop- erty. For various reasons, people entrust money and property to others. The intent is

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not to transfer ownership (title), only possession. A depositor of a bank gives possession of money to the bank; a client may give an attorney money to hold in a trust account; a stockbroker may keep an account with a client-investor’s money in it. In all of these situations, the money is taken lawfully; there is no trespassory taking. So, what happens if the person entrusted with the money converts (steals) it after taking lawful possession? At the early common law, it was not a crime. However, the thief could have been sued for recovery of the stolen money.

This theory was carried to an extreme in a case in which a bank teller converted money handed to him by a depositor to himself, by placing the money in his own pocket. It was held that there was no larceny, because the teller acquired the money lawfully. The court also determined that there was no larceny under the theory of con- structive possession, because the employer (bank) never had possession of the money. If the teller had put the money in the drawer and then taken it, the bank would have had constructive possession, and he would have committed larceny. The result was that the teller was guilty of no crime.8 Unsatisfied with this situation, the English Parliament created a new crime: embezzlement.

The elements of embezzlement are (1) conversion (2) of personal property (3) of another (4) by one who has acquired lawful possession (5) with an intent to defraud the owner.

To prove embezzlement, the prosecution must first show that an act of conversion occurred. Conversion is the unauthorized control over property with an intent to permanently deprive the owner of its possession or which substantially interferes with the rights of the owner.

As was the case with larceny, only tangible personal property was included. Today, nearly all forms of personal property may be embezzled. Also, the property had to be- long to another. One could not embezzle one’s own property.

The element that distinguished embezzlement from larceny was the taking re- quirement. Whereas larceny required a trespassory taking, embezzlement required lawful acquisition. Accountants, lawyers, bailees, executors of estates, and trustees are examples of those who can commit embezzlement.

To satisfy the mens rea requirement of embezzlement, it must be shown that the defendant possessed an “intent to defraud.” Mere negligent conversion of another’s property is not embezzlement. Because the mens rea requirement is so high, bona fide claims of mistake of fact and law are valid defenses. If an accountant makes an account- ing error and converts a client’s money, there is no embezzlement. This is a mistake of fact. If a friend you loaned money to keeps the money with the mistaken belief that he is allowed to in order to offset damage you caused to his property last year (when the law requires that he sue you for the damage), there is no embezzlement. This is a mistake of law and negates the intent required, as does a mistake of fact.

Embezzlement is prohibited in all states. Some states have retained the name embezzlement; others have named it theft and included it in a consolidated theft stat- ute. Embezzlement, which occurs in interstate commerce, federally insured banks, and lending institutions, or involves officers and agents of the federal government, is also made criminal by the statutes of the United States.9 Statute 18 U.S.C. § 641 is

embezzlement

■ The fraudulent and

secret taking of money or

property by a person who

has been trusted with it.

This usually applies to an

employee’s taking money

and covering it up by

faking business records or

account books.

conversion

■ Any act that deprives an

owner of property without

that owner’s permission

and without just cause.

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152 Part i Criminal Law

the embezzlement of public monies, property, and records statute. Violation of that provision, if the property embezzled has a value of $100 or greater, results in a fine of up to $10,000 and 10 years in prison. The remainder of that statute deals with embezzlement of nonpublic property that occurs in interstate commerce or by federal officials. The penalties vary for each provision.

False Pretenses At common law, it was not larcenous to use lies (false representations) to gain ownership of property. For example, if Brogan were to sell Sean a ring containing glass, while representing to Sean that the ring contained a diamond, it was not larceny under the early common law, even though Brogan knew that the ring contained glass. The early judges believed strongly in the concept of caveat emptor, which translates as “let the buyer beware.”

As it had done with embezzlement, Parliament decided to make such acts criminal. It did so by creating the crime of false pretenses. The elements of false pretenses are (1) a false representation of (2) a material present or past fact (3) made with knowledge that the fact is false (4) and with an intent to defraud the victim (5) thereby causing the victim to pass title to property to the actor.

To prove the first element, it must be shown that the actor made a false representa- tion. This representation may be made orally or by writing, or may be implied by one’s actions. The law does not require that people disclose all relevant information during a business transaction—caveat emptor still exists in that regard. The law does, however, require that any affirmative statements (or implications from actions) be true. So, if a buyer fails to ask if property has a lien against it, there is no false pretense if the seller does not inform the buyer of such. The opposite is true if the buyer inquires about existing liens and encumbrances and is told there are none.

The false representation must be important to the transaction. If the statement is important, the law says that it is material. Generally, a representation is material if it would have had an impact on the victim’s decisionmaking had the victim known the truth at the time the transaction took place. For example, if Connie represents to Pam that the lighter in a used car she is selling works, when it does not, she has not com- mitted false pretenses. However, if she states to Pam that the automobile recently had its engine replaced, that would be material and she would be liable for false pretenses if she knew that the statement was untrue.

The fact conveyed by the actor must not only be material, but it must also concern a present fact or past fact. In this context, present refers to the time of the transaction. Statements of expected facts, promises, predictions, and expectations cannot be the basis of false pretenses. So, if Aaron buys an automobile from Kathy and promises to pay her in 6 months, it is no crime if he fails to pay because he loses his source of income during that period. To permit breaches of such promises to be criminal would be the same as having a debtor’s prison, which is not recognized in the United States. The same is not true if Aaron made the promise but had no intent of paying the debt. Some states treat this as false pretenses under the theory that his state of mind at the

false pretenses

■ A lie told to cheat

another person out of his

or her money or property.

It is a crime in most

states, though the precise

definition varies.

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time of the sale was fraudulent. Some states do not treat his action as criminal and place the burden on Kathy to seek her own remedy in a civil cause of action. It is also neces- sary that the representation be one of fact. Accordingly, opinions are not included. Of course, the line between fact and opinion is often unclear.

It must also be proved that the defendant knew the statement was false. An unin- tentional misrepresentation is not sufficient to establish this element in most jurisdic- tions, although most jurisdictions will find knowledge if the lower mens rea standard, recklessness, is proved.

The defendant must have the additional mens rea of “intent to defraud.” As with other theft crimes, if persons have a bona fide belief that a particular property belongs to them, there is a defense. In addition to intending to defraud the victim, it must also be shown that the victim was defrauded. Hence, if the victim was aware of the falsity of the statement and entered into the bargain anyway, there has been no crime.

Finally, the misrepresentation must be the cause of the victim passing title to prop- erty to the defendant. Title is ownership. Transferring possession to the defendant is not adequate. However, causing one to transfer possession of property by use of fraud was a type of larceny, known as larceny by trick. Just as with larceny and embezzlement, only tangible personal property was included within the grasp of the prohibition at early common law. Today, false pretenses usually includes all property that is subject to the protection of larceny—in most instances, this includes all personal property.

Fraudulent Checks Related to the crime of false pretenses is the crime of acquiring property or money by writing a check (draft) from an account that has insufficient funds to cover the draft. The act appears to fall into the category of false pretenses. Some theorize that a check is a promise of future payment, and, accordingly, the check does not meet the “represen- tation of present or past fact” requirement of false pretenses. Courts have rejected that theory and held that at the time one drafts a check, a representation is made that there are adequate funds in the account to pay the amount drafted.

Today, most states have bad-check statutes. Conviction of these laws, for the most part, results in a less serious punishment than conviction on false pretenses.10 Three common material elements are found in bad-check statutes. First, the mens rea may be proven by showing either an intent to defraud the payee or knowledge that there were insufficient funds in the account. Second, the check must be taken in exchange for something of value; third, there must have been insufficient funds in the account.

Mail Fraud Another crime related to false pretenses is mail fraud.11 Mail fraud is a crime against the United States, because the mail system is run by a federal agency. Using the U.S. mail system with an intent to defraud another of money or property is mail fraud. The intended victim need not be defrauded; the act of sending such mails with the intent to defraud is itself criminal.

Mail fraud has become increasingly important in recent years, because it often is the foundation of a RICO count.

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154 Part i Criminal Law

Racketeer Influenced and Corrupt Organizations Act Another federal statute that deals with fraud is the Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO.12 The United States Congress enacted RICO in the early 1970s in an attempt to curb organized crime.

Judicial interpretation of RICO has led to much controversy in recent years. Some people contend that the effect of court opinions has been to extend the prohibition of RICO beyond Congress’s original intent. Today, all businesses, not just traditional organized crime, are subject to RICO.

To establish a RICO violation, the United States must prove that the (1) defendant received money or income (2) from a pattern of racketeering activity and (3) invested that money in an enterprise (business), (4) which is in interstate commerce or affects interstate commerce.

The second element is the key to proving a RICO violation. The term pattern means “two or more acts,” referred to as the predicate acts. Those acts must fall into the definition of a “racketeering activity.” The statute provides a list of state and federal crimes that are considered to be racketeering. Murder, kidnapping, extortion, and drug sales and transportation are examples of the state crimes included in the list. Mail fraud, wire fraud, “white slave traffic” or the transport of women across state boundaries for immoral purposes, securities fraud, and bribery are a few examples of the federal crimes included. Mail fraud is often the basis of a RICO violation, because the mails are often used by such enterprises.

For example, the Supreme Court announced in a 1994 decision that RICO could apply to a coalition of antiabortion groups that were alleged to have conspired, through a pattern of racketeering, to shut down abortion clinics.13 In that case, extortion, including alleged threats of assault, was used to satisfy this element.

Violation of RICO can result in serious criminal penalties. In addition, victims of such activity may sue civilly and receive treble damages, costs, and attorney fees. RICO also provides for forfeiture of property in criminal proceedings. Forfeiture is the taking of property and money of a defendant by the government. Many crimes have forfeiture provisions. A forfeiture is not the same as a fine. Forfeitures and fines are both levied as punishment, but the focus of a fine is generally to hurt a defendant’s pocketbook. Forfeitures are specifically aimed at getting the property or money connected to the crime for which the individual was convicted. So, in a RICO situation, a convicted party could stand to lose the enterprise itself, as well as all profits from that activity.

However, many aspects of civil RICO are identical to criminal RICO. One such aspect is the pattern requirement. Whether the case is civil or criminal, a pat- tern of racketeering must be proven. The United States Supreme Court addressed the pattern question because the various appellate courts of the United States were divided on how to define that phrase. In H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989), the Supreme Court defined a pattern as more than one predicate act that are related to one another and the facts pose a threat of continued racketeering activity. H.J. is also a good illustration of how “legitimate businesses” are subject to RICO.

racketeer influenced and corrupt organizations act

■ (19 U.S.C. 1961). A

broadly applied 1970

federal law that creates

certain “racketeering

offenses” that include

participation in various

criminal schemes and

conspiracies, and that

allows government seizure

of property acquired in

violation of the act.

forfeiture

■ A deprivation of money,

property, or rights, without

compensation, as a

consequence of a default or

the commission of a crime.

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Forgery Another crime related to fraud is forgery. Forgery is the (1) making of (2) false documents (or the alteration of existing documents making them false) (3) and passing the document (4) to another (5) with an intent to defraud.

The purpose of forgery statutes is both to prevent fraud and to preserve the value of written instruments. These functions are important because if forgery were to be- come common, people would no longer trust commercial documents, such as checks and contracts. The effect that would have on commerce is obvious.

The actus reus of forgery is the making of the document. That involves the actual writing and drafting of the document, as well as passing the document (uttering) to a potential victim. The mens rea of forgery is knowledge of the falsity of the document and an intent to defraud.

In many jurisdictions, forgery and uttering are separate crimes. In those states one must only make the false instrument and possess an intent to defraud. The defendant need not present the document (utter) to the victim. That act, when accompanied with an intent to defraud, is the crime of uttering.

Receiving Stolen Property Not only is it a crime to steal another’s property, but it is also a crime to receive property that one knows is stolen, if the intent is to keep that property. In essence, one who buys or receives as a gift property that is known to be stolen is an accessory (after the fact) to the theft. Although the law applies to anyone who violates its prohibitions, the primary focus of law enforcement is fences, people who purchase stolen property with the intent of reselling the property for a profit. They act as the retailers of stolen property, with the thieves acting as suppliers.

The elements of receiving stolen property are (1) receiving property (2) that has been stolen (3) with knowledge of its stolen character (4) with an intent to deprive the owner of the property.

Receipt of the property may be shown by showing either actual possession or con- structive possession of the property. Constructive possession occurs any time the de- fendant has control over the property, even though the defendant does not have actual possession. For example, if one makes arrangements for stolen property to be delivered to one’s home, there is receipt once the property is in the house, even if the defendant was not present when the property was delivered. Receiving includes not only pur- chases of stolen property but also other transfers, such as gifts.

The property in question must have been stolen. In this context, stolen property includes that property acquired from larcenies, robberies, embezzlement, extortion, false pretenses, and similar crimes.

The final two elements deal with the mens rea of the crime of receiving stolen property. It is necessary that the defendant knew of the property’s stolen character at the time of acquiring the property. Actual knowledge that the property was stolen is required. However, if it can be proven that the defendant had a subjective belief that the goods were stolen, but lacked absolute proof of that fact, the crime has still been

forgery

■ Making a fake document

(or altering a real one) with

intent to commit a fraud.

receiving stolen property

■ The criminal offense

of getting or concealing

property known to be

stolen by another.

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156 Part i Criminal Law

committed. The fact that a reasonable person would have known that the property was stolen is not enough to convict for receiving stolen property. If persons receive property under a bona fide belief that they have claim to the property, they are not guilty of receiving stolen property, even though that belief was unfounded.

The last element requires that the receiver of the property intends to deprive the owner of the property. Of course, if a defendant intends to keep the property, then this requirement is met. The language of the crime is broader, however, and includes any intent to deprive the owner of the use, ownership, or possession of the property. Thus, if one receives the property intending to destroy it or to give it as a gift, this element has been satisfied.

Not only do the states prohibit receiving stolen property, but the federal govern- ment also makes it a crime to receive stolen property that has traveled in interstate com- merce or to receive stolen property while on lands controlled by the United States.14

Robbery The material elements of robbery are (1) a trespassory taking (2) and carrying away (asportation) (3) of personal property (4) from another’s person or presence (5) using either force or threat (6) with an intent to steal the property.

Robbery is actually a type of assault mixed with a type of larceny. Because of the immediate danger created by the crime of robbery, it is punished more severely than either larceny or simple assault. Robbery was a crime under the common law and is a statutory crime in all states today.

The elements of trespassory taking—asportation, intent to steal, and that the prop- erty belongs to another—are the same as for larceny. However, robbery also requires that the property be taken from the victim’s person or presence. So property taken from another’s hands, off another’s body, or from another’s clothing is taken from the person. Property that is taken from another’s presence, but not from the person, also qualifies. For example, if a bank robber orders a teller to stand back while the thief empties the cash drawer, there has been a robbery. The states differ in their definitions of “from another’s presence,” but it is generally held that property is in a victim’s presence any time the victim is in control of the property. This is true in the bank robbery example, as the teller was exercising control over the cash drawer at the time of the robbery.

It is also necessary that the crime be committed with the use of force or threat. This element is the feature that most distinguishes robbery from larceny. As far as force is con- cerned, if any force is used beyond what is necessary to simply take the property, there is robbery. For example, it is larceny, not robbery, if a pickpocket steals a wallet free of the owner’s knowledge. Only the force necessary to take the wallet was used. It is robbery, however, if the victim catches the pickpocket, and an altercation ensues over possession of the wallet. The same result is true when dealing with purse snatchers. If the snatcher makes a clean grab and gets away without an altercation, it is larceny from the person. If the victim grabs the bag and fights to keep it, then it is robbery. A threat of force may also satisfy this requirement. So, if the robber states to the victim, “Give me your wallet or I’ll blow your head off,” there is a robbery, even though there was no physical contact.

robbery

■ The illegal taking of

property from the person

of another by using force

or threat of force.

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Chapter 5: Crimes Against Property and Habitation 157

In most jurisdictions, the threatened harm must be immediate; threats of future harm are not adequate. It is also possible that the threat will be to someone else, such as a family member. The thief who holds a man’s wife and threatens to harm her if the man does not give up his money is not free from the charge of robbery just because the person giving up the money is not the one threatened.

The mens rea of robbery is the specific intent to take the property and deprive the owner of it. As with the other theft crimes, a good-faith, but incorrect, claim of right to the property is a defense. In Richardson v. United States, 403 F.2d 574 (D.C. Cir. 1968), a defendant’s claim of right to money was a gambling debt. The trial court did not permit the illegal debt to be used as a defense, but the appellate court reversed. It stated in its opinion that:

The government’s position seems to be that no instruction on a claim of right is necessary unless the defendant had a legally enforceable right to the property he took. But specific intent depends upon a state of mind, not upon a legal fact. If the jury finds that the defendant believed himself entitled to the money, it cannot properly find that he had the requisite specific intent for robbery.

Robbery is a crime pursuant to state law, and the United States has also prohibited certain robberies. Robbery of a federally insured bank is an example.15

Robbery is usually, if not always, graded. Robbery is graded higher if it results in serious injury to the victim or is committed using a deadly weapon.

Extortion Extortion is more commonly known as blackmail. Extortion is similar to robbery because both acts involve stealing money under threat. However, the threat in a robbery must be of immediate harm. Extortion involves a threat of future harm. At common law, extortion applied only against public officers. Today, extortion is much broader. The elements of extortion are (1) the taking or acquisition of property (2) of another (3) using a threat (4) with an intent to steal the property. In a few jurisdictions, the

extortion

■ To compel, force, or

coerce; for example, to get

a confession by depriving

a person of food and water.

To get something by illegal

threats of harm to person,

property, or reputation. The

process is called extortion.

CrIME In THE unITED sTATEs

Robbery is defined as the “taking or attempting to take anything of value from the care, custody, or control of a person or persons by force or threat of force or violence and/or by putting the victim in fear.” During 2011, there 354,396 robberies were reported under this definition. The number of robberies decreased 21% from 2007.

Source: Uniform Crime Reports, U.S. Department of Justice, Federal Bureau of Investigation, 2012.

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158 Part i Criminal Law

extortionist must actually receive the property, whereas others require only that the threat be made.

A threat of future physical harm satisfies the threat element, as do threats to injure another’s reputation, business, financial status, or family relationship. As in the case of robbery, the threat may be directed at one person and the demand for property made on another. For example, if a thief states to John, “Give me $100,000 or I will kill your wife,” he is an extortionist, even though he has not threatened John.

The threatened conduct itself need not be illegal to be extortion. For example, if Stacy tells Lisa that she is going to inform the authorities of Lisa’s involvement in illegal drug trade unless Lisa pays her $10,000, she is an extortionist, even though informing the police of the activity is not only legal but is encouraged by society.

The federal government has made it a crime for federal officers to extort the pub- lic, to be involved in an extortion that interferes with interstate commerce, and to extort another by threatening to expose a violation of federal law.

The Dioguardi case deals with extortion in the labor relations area. In most situa- tions it is proper for unions and employees to threaten to picket an employer. In this case the threats were not part of usual labor–management relations; they were made with the purpose of extorting corporate money. Accordingly, the threats were found to be extortion, not protected labor activity.

The Appellate Division has reversed defendants’ convictions for extortion and conspiracy to commit extortion, dismissed the indictment, and discharged them from custody. In addition to the conspiracy count, the indictment charged defendants with ex- torting $4,700 from the officers of two corporations. Said corporations were nonunion, conducted a wholesale stationery and office supply business in Manhattan, did an annual business of several million dollars, and their stock was wholly owned by a fam- ily named Kerin. Anthony Kerin, Sr., president and “boss” of the Kerin companies, made all the impor- tant corporate decisions. The other two corporate of- ficers were his son Kerin, Jr., and one Jack Shumann.

Defendant McNamara, the alleged “front man” in the extortive scheme, was an official of Team- ster’s Local 295 and 808, as well as a member of the Teamster’s Joint Council. Defendant Dioguardi,

the immediate beneficiary of the payments and the alleged power behind the scene, was sole officer of Equitable Research Associates, Inc.—a publishing house, according to its certificate of incorporation, a public relations concern, according to its bank ac- count and the Yellow Pages of the telephone direc- tory, a labor statistics concern, according to its office secretary and sole employee, and a firm of labor consultants, according to its business card. . . .

[During late 1955 and early 1956 various unions were attempting to unionize Kerin’s business. The two primary unions involved in this attempt were both locals of the Teamsters. Eventually, one union began picketing the business while the other was on the premises handing out literature.]

The appearance of the picket line—which truck drivers from two companies refused to cross— thoroughly alarmed the Kerin officers, since they

PEOPLE V. DIOGUARDI 8 N.Y.2d 260, 203 N.Y.S.2d 870 (1960)

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Chapter 5: Crimes Against Property and Habitation 159

PEOPLE V. DIOGUARDI (continued)

were in an “extremely competitive business,” and a cessation of incoming or outgoing truck deliveries for as short a period as two weeks would effectively force them out of business.

■ ■ ■

McNamara assured Kerin, Sr. that his troubles could be ended, and would be, if he did three things: (1) “joined up” with McNamara’s local 295, (2) paid $3,500 to Equitable to defray the “out-of-pocket” expenses incurred by the various unions that had sought to organize the companies, and (3) retained Equitable as labor consultant at $100 per month for each company for the period of the collective bargaining contract. . . . McNamara repeatedly as- sured Kerin, Sr. that the picketing would stop im- mediately and the companies would be guaranteed labor peace if his program were accepted.

Kerin, Sr., stated that he was not adverse to having his employees organized by local 295, if it was a good honest union, and that he could “accept

the idea of a hundred dollars a month as a retainer fee for labor counsel and advise.” He protested against the proposed payment of $3,500, however, as an “extraordinary charge” that sounded “like a holdup,” to which McNamara replied: “It may seem that way to you, Mr. Kerin, but that is the amount of money that these unions that have sought to organize you . . . have expended, and if we are going to avoid further trouble and further difficul- ties, it is my suggestion that you pay that to the Equitable Associates.”

■ ■ ■

Upon the proof in this record, a jury could prop- erly conclude that defendants were guilty of extor- tion—cleverly conceived and subtly executed, but extortion nonetheless. The essence of the crime is obtaining property by a wrongful use of fear, induced by a threat to do an unlawful injury. It is well-settled law in this State that fear of economic loss or harm satisfies the ingredient of fear necessary to the crime.

Consolidated Theft Statutes The distinctions among the three common-law crimes of theft, larceny, embezzle- ment, and false pretenses are often hard to draw. This fact, matched with the belief that there is no substantive difference between stealing by fraud or by quick use of the hands, has led many jurisdictions to do away with the common-law crimes of larceny, false pretenses, and embezzlement and to replace them with a single crime named theft. Exactly what crimes are included in such statutes differs, but larceny, false pretenses, and embezzlement are always included. Many jurisdictions also add one or more of the following: fraudulent checks, receiving stolen property, and extortion.

These statutes often use the language of the common law in defining theft. For example, Florida’s statute reads:

A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit therefrom or Appropriate the property to his own use or to the use of any person not entitled thereto.16

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160 Part i Criminal Law

This statute includes the three common-law theft crimes. The primary change of consolidated theft statutes is that prosecutors no longer need to charge which specific crime has occurred. At trial, if the jury decides that a defendant has committed a lar- ceny and not an embezzlement, they can convict. At common law, if the defendant was charged with embezzlement, not larceny, the jury would be forced to acquit if they determined that the defendant committed larceny rather than embezzlement.

Robbery is usually not included in consolidated theft statutes because of its signifi- cant threat of harm. Consolidation usually includes only misappropriations of property that do not pose serious risks to life.

Of course, those crimes that are included in consolidation statutes are not always punished equally. Grading of such offenses based on the amount of property appropri- ated, the nature of the theft, and the type of property stolen is common.

Identity Theft It is possible to steal a person’s identity as well as a person’s property. The advent of the computer has made identity theft more common. Identity theft occurs whenever an individual uses a victim’s name, social security number, e-mail address, or other iden- tifying items in an effort to represent himself or herself as the victim. The mens rea of most identity theft statutes is an intention either to gain something of value through the deceit or to commit any other crime. This is the text of the Washington identity theft statute:

RCW 9.35.020 Identity theft.

(1) No person may knowingly obtain, possess, use, or transfer a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.

(2) (a) Violation of this section when the accused or an accomplice uses the victim’s means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value in excess of one thousand five hundred dollars in value shall constitute identity theft in the first degree. Identity theft in the first degree is a class B felony.

(b) Violation of this section when the accused or an accomplice uses the victim’s means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree. Identity theft in the second degree is a class C felony.

(3) A person who violates this section is liable for civil damages of five hundred dol- lars or actual damages, whichever is greater, including costs to repair the victim’s credit record, and reasonable attorneys’ fees as determined by the court.

(4) In a proceeding under this section, the crime will be considered to have been committed in any locality where the person whose means of identification or

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174

CHAPTER 6 Chapter Outline Defining a “Crime Against the Public” Crimes Against Public Morality

Prostitution and Solicitation Deviate Sexual Conduct Marriage, Contraception, and Abortion Indecent Exposure and Lewdness Obscenity Regulating the Internet

Crimes Against the Public Order

Riot and Unlawful Assembly Disturbing the Peace Incitement/Advocacy of Unlawful

Conduct Threats Vagrancy and Panhandling Crimes Involving Firearms Drug and Alcohol Crimes

Crimes Against the Administration of Government

Perjury Bribery Tax Crimes Obstruction of Justice Contempt

Crimes Against Sovereignty and Security

Treason Sedition and Espionage Terrorism

Crimes Against the Environment

Clean Water Act Clean Air Act Comprehensive Environmental

Response, Compensation, and Liability Act

Resource Conservation and Recovery Act

Occupational Safety and Health Act Toxic Substances Control Act Federal Insecticide, Fungicide, and

Rodenticide Act Emergency Planning and Community

Right-to-Know Act Endangered Species Act Marine Mammal Protection Act

Ethical Considerations: The Special Obligations of Prosecutors

CRimEs AgAinsT THE PubliC

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Chapter 6: Crimes Against the Public 175

Chapter Objectives

After completing this chapter, you should be able to

• describe historic and contemporary crimes against the public, including crimes against the public order, against the administration of government, against public morality, and against the environment.

• critically examine and discuss the laws of terrorism, especially those laws enacted in response to the September 11, 2001, attacks on the United States.

Defining a “Crime against the PubliC” Chapters 4 and 5 were concerned with crimes that victimize individuals or entities, such as corporations and other business organizations. This chapter examines crimes that do not have individual victims. These are crimes involving the public welfare, social order, and society’s morals. Many, if not most, of these crimes are malum prohi- bitum in nature, not malum in se.

Historically religion has played a role in the “criminalization” of “victimless” crimes. Of course, religious groups do not dictate such policy—this would violate the First Amendment’s Establishment Clause. Religion does, however, influence the moral values of the members of a society. In the United States this influence is pre- dominantly Christian. This is the reason that some acts that directly harm no one are prohibited.

Some critics call for an end to “victimless crimes.” Despite this opposition, many victimless crimes exist and are likely to continue to be prohibited. However, in a de- mocracy such as the United States, it is important to avoid an unwarranted infringe- ment of civil liberties. The more a law is premised upon a moral judgement, the greater the scrutiny of, and reasons justifying, such laws should be.

Some of the crimes discussed here bear directly upon the administration of govern- ment and justice and less upon moral determinations. For example, contempt of court is a crime against the public, and the premise of its prohibition is the theory that if society punishes offenders, others will comply with court orders, and the administra- tion of justice will be enhanced. Prostitution is an example of a crime that is prohibited more for moral reasons than any other.

The crimes included in this chapter have been divided into five subsections: crimes against public morality; crimes against the public order; crimes against the administra- tion of government; crimes against sovereignty and security; and crimes against the environment.

• explain the tension between national security and freedom and how the war on terror confounds the historic distinction between the law of war and criminal law

• explain what role that morality has, and what you believe it should play, in penal law.

• identify the material facts and legal issues in one-third of the cases you read and describe the court’s analyses and conclusions in the cases.

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176 Part i Criminal Law

Crimes against PubliC morality Prostitution and Solicitation Often said to be the oldest profession, prostitution is prohibited in every state except Nevada, where each county is given the authority to determine whether it should be permitted.

Prostitution is defined as (1) providing (2) sexual services (3) in exchange for compensation. In a few states, only intercourse is included in the definition of sexual services. In most states, however, sexual services include sodomy, fellatio, cunnilingus, and the touching of another’s genitals. The Model Penal Code includes homosexual and other deviate sexual conduct in its definition of sexual activity.1

The service must be provided in exchange for compensation. The person who is sexually promiscuous, but unpaid, goes unpunished. Compensation normally means money, but it can come in any form. Thus, the prostitute who accepts legal services from a lawyer in exchange for sexual services has received compensation. Where prosti- tution is illegal, it is common for prostitutes to use businesses, such as massage parlors and escort services, as fronts.

Solicitation is a related crime. Any person who engages in selling sex, buying sex, or attempting to buy sex is guilty of solicitation. Note that a prostitute may be guilty of both solicitation and prostitution, if the prostitute makes the first contact with the buyer. There need not be the actual sale of sex for solicitation—only an attempt to sell sexual services. The clients of prostitutes, when prosecuted, are charged with solicitation.

The Model Penal Code states that “[a] person commits a violation if he hires a prostitute to engage in sexual activity with him, or if he enters or remains in a house of prostitution for the purpose of engaging in sexual activity.”2

Those who promote prostitution (pimps) are usually punished more severely than prostitutes and customers. The Model Penal Code makes knowingly promoting pros- titution a felony of the third degree if a child under 16 years of age is prostituted; the defendant’s wife, child, or other ward is prostituted; the defendant forces or encourages another to engage in prostitution; or the defendant owns, controls, or manages a house of prostitution. In all other cases promotion is a misdemeanor.

Nearly all sex-for-hire cases fall under state jurisdiction. However, the federal govern- ment may be involved in prosecution when a prostitute is transported in interstate com- merce, or any other person is transported in interstate commerce for an immoral purpose.3

Deviate Sexual Conduct Rape and related crimes were discussed in Chapter 4. That chapter focused on sexual behavior that results in harm to a victim. This discussion is different, as there is usually no victim other than society as a whole. Deviate sexual conduct has many definitions, but most states include fellatio, cunnilingus, anal sex, and all homosexual activity within the grasp of their deviate sexual statutes. Therefore, consenting adults, married or not, may be prosecuted for participating in such sexual activity under many older statutes.

The foundation of the prohibition of sodomy and related acts is morality. Adherents of many religions, including Christianity, believe that all sex other than vaginal intercourse

prostitution

■ A person offering her

(in most states, his or her)

body for sexual purposes

in exchange for money.

A crime in most states.

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Chapter 6: Crimes Against the Public 177

Justice Kennedy delivered the opinion of the Court. Liberty protects the person from unwarranted

government intrusions into a dwelling or other pri- vate places. In our tradition the State is not omni- present in the home. And there are other spheres of

our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The

LAWRENCE V. TEXAS 539 U.S. 558 (2003)

between a man and woman is deviate. The reality is that many, if not most, people engage in sex that satisfies the definition of deviate sex. For this reason, many people argue that such acts are normal and should not be prohibited. Others argue that it does not matter if the behavior is normal or deviate—that sex between two consenting adults is private and involves no victims and, as such, is of no concern of the government. Regardless such laws continue to exist. Further, they have survived constitutional challenges in many instances.

Despite continued prohibition of sodomy, and related acts, in many states, the laws are seldom enforced. One reason is that law enforcement officials have shown a reluctance to enforce such laws, often because crimes perceived as more serious are time-demanding and leave little manpower and resources to enforce victimless crimes. In addition, there simply is the problem of discovering violations. Most sexual conduct occurs privately, and thus the police rarely discover violations independently. Of course, those who participate in prohibited sexual conduct are not likely to report their sex partners’ acts to law enforce- ment. But it is possible for officers to discover violations, and several cases where it has happened have resulted in arrests, convictions, and appellate review.

In 1982, a local police officer discovered Michael Hardwick engaged in consensual oral sex with another man in Hardwick’s bedroom. The officer was in the house to serve a warrant on Hardwick. The officer arrested both men for violating Georgia’s sodomy statute. Although the prosecutor declined to file charges, Hardwick sued the Georgia attorney general, seeking an order of the court enjoining enforcement of the sodomy law. The case made its way to the Supreme Court of the United States, where the law was upheld. Hardwick’s theory was that the right to privacy, found implicit in the Fourteenth Amendment’s due process guarantee, shielded private consensual sexual conduct from governmental regulation. The Court rejected this argument, holding that the nation’s long moral history of revulsion and prohibition of same-sex sodomy outweighed Hardwick’s privacy concerns. The decision of the Court was 5–4. Justice Powell voted with the majority, and after his retirement he stated that he regretted his vote in the case. This is not the end of the story, however. In 1998, the Georgia Supreme Court found the statute to be violative of the privacy protections in the Georgia Constitution.4 Then, the United State Supreme Court revisited the issue in Lawrence v. Texas.

(continued)

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178 Part i Criminal Law

LAWRENCE V. TEXAS (continued)

instant case involves liberty of the person both in its spatial and more transcendent dimensions.

The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons dis- turbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Law- rence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace.

The complaints described their crime as “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: “A person commits an offense if he engages in devi- ate sexual intercourse with another individual of the same sex.” The statute defines “[d]eviate sexual inter- course” as follows:

“(A) any contact between any part of the genitals of one

person and the mouth or anus of another person; or

“(B) the penetration of the genitals or the anus of an-

other person with an object.” § 21.01(1).

The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They chal- lenged the statute as a violation of the Equal Protec- tion Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. . . . [The defendant lost on appeal. The appellate court relied on Bowers v. Hardwick in ana- lyzing the federal issue.]

The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental

right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws in- volved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual be- havior, and in the most private of places, the home. The statutes do seek to control a personal relation- ship that, whether or not entitled to formal recogni- tion in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the mean- ing of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one el- ement in a personal bond that is more enduring. The liberty protected by the Constitution allows homo- sexual persons the right to make this choice.

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: “Proscriptions against that conduct have an- cient roots.” In academic writings, and in many of

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the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. We need not enter this debate in the attempt to reach a definitive his- torical judgement, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.

At the outset it should be noted that there is no longstanding history in this country of laws di- rected at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibi- tions of sodomy derived from the English criminal laws passed in the first instance by the Reforma- tion Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting “mankind” in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as crimi- nalizing certain relations between men and women and between men and men. See, e.g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47–50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes § 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late nineteenth century. See, e.g., J. Katz, The In- vention of Heterosexuality 10 (1995); J. D’Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (“The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions”). Thus early American sodomy laws were not directed

at homosexuals as such but instead sought to pro- hibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual con- duct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.

Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecu- tions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, su- pra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.

To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, be- cause the partner was considered an accomplice. A partner’s testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e.g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal

LAWRENCE V. TEXAS (continued)

(continued)

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LAWRENCE V. TEXAS (continued)

Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of ho- mosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.

The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been peri- ods in which there was public criticism of homosexu- als as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing “ancient roots,” Bowers, 478 U.S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880–1995 are not always clear in the details, but a significant number involved conduct in a public place. It was not until the 1970s that any State singled out same-sex relations for criminal prosecu- tion, and only nine States have done so. . . . Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated. . . .

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral.

The condemnation has been shaped by religious beliefs, conceptions of right and acceptable be- havior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethi- cal and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the ma- jority may use the power of the State to enforce these views on the whole society through op- eration of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code. . . .

In our own constitutional system the deficien- cies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct refer- enced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homo- sexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosex- ual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. . . .

Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional pro- tection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the re- spect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

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“These matters, involving the most intimate and personal choices a person may make in a life- time, choices central to personal dignity and au- tonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of hu- man life. Beliefs about these matters could not de- fine the attributes of personhood were they formed under compulsion of the State.”

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

The second post-Bowers case of principal relevance is Romer v. Evans, 517 U.S. 620 (1996). There the Court struck down class-based legis- lation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were ho- mosexuals, lesbians, or bisexual either by “ori- entation, conduct, practices or relationships . . . and deprived them of protection under state an- tidiscrimination laws. We concluded that the pro- vision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose. . . .

The foundations of Bowers have sustained seri- ous erosion from our recent decisions in Casey and Romer. When our precedent has been thus weak- ened, criticism from other sources is of greater sig- nificance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its his- torical assumptions. . . The courts of five different States have declined to follow it in interpreting pro- visions in their own state constitutions parallel to the Due Process Clause. . . .

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. . . . Other nations, too, have taken action consistent with an affirmation of the protected right of ho- mosexual adults to engage in intimate, consen- sual conduct.

The doctrine of stare decisis is essential to the respect accorded to the judgements of the Court and to the stability of the law. It is not, however, an inexorable command. . . .

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct with- out intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. . . .

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Marriage, Contraception, and Abortion Marriage is a state-coopted institution. States regulate marriage in a number of ways. All states specify how many people may marry, two in each union, who may marry (no close relatives), who has the authority to perform the marriage ceremony, when couples may marry (some states require a waiting period and/or blood tests), and the payment of a fee for the issuance of a license. Additionally, states and the federal government have built marriage into their tax schemes. There are limits, however, to the regulation of mar- riage. For example, for many years states prohibited and criminalized marriages between people of different races. As you will read in Chapter 9, the Supreme Court invalidated these laws as violating one’s right to liberty, as protected by due process. Similarly, crimi- nal prohibitions of the use of contraceptives and early term abortions were invalidated.

Due process and equal protection are evolving values and rights. Although a fed- eralism and not a deviate sexual conduct case, the Supreme Court’s 2013 decision United States v. Windsor, which invalidated a provision of the Defense of Marriage Act, contains sweeping equal protection and due process language that can be interpreted as foreshadowing a decision securing a right to same sex marriage in the near future. These topics are discussed more fully in Chapter 9.

Indecent Exposure and Lewdness Indecent exposure, or the exposure of one’s “private parts” in public, was a common-law misdemeanor. Today, the crime is usually criminalized by state statute or local ordinance.

Most indecent exposure laws require (1) an intentional exposure (2) of one’s pri- vate parts (3) in a public place. In some jurisdictions, it is required that the exposure be done in an “offensive manner.”

In 1991, the United States Supreme Court examined a public nudity statute in the context of nude barroom dancing. In Barnes v. Glen Theater, Inc.,5 the Court upheld an Indiana statute that required dancers to wear pasties and G-strings. Although the court found that nude dancing was expressive conduct, it determined that states may require the dancers to cover their genitals. The court did say that erotic performances were protected by the First Amendment, provided the dancers wear a scant amount of clothing. The Court upheld the law because it determined that the state’s objective was not to regulate expression, but to regulate for order and morality. Further, the Court held that the interference with expression was minimal.

The Model Penal Code prohibits public indecency. The Code goes further with a provision proscribing all lewd acts that the defendant knows are likely to be observed by others who would be “affronted or alarmed” by the acts.6

Obscenity

Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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This is the First Amendment to the U.S. Constitution. Most, if not all, states have a similar provision in their constitutions. The italicized portion represents the only protection of speech in the Constitution. Because it is brief and broad, it is depen- dent upon a great amount of interpretation to give it meaning. Also, because of its brevity and broadness, courts often interpret it differently. Even the Supreme Court has changed its interpretation of the clause, in particular areas, on several occasions. Freedom of speech encompasses far more than will be examined in this chapter. What will be discussed here is the extent of governmental power to regulate conduct that it deems to be indecent. Specifically, this section addresses sexually explicit materials, including films, books, and erotic dancing. It is well established that the term speech, as used in the First Amendment, means more than spoken utterances. It includes all forms of expression.

Both the federal and state governments regulate conduct, speech, books, movies, and other forms of expression that are believed to be “obscene.” State governments are the most involved with regulating obscenity, due to general police power (the power to regulate for the health, welfare, and safety of citizens). However, the federal gov- ernment is also involved; for example, it has criminalized sending obscene materials through the mail.7

Not all indecencies may be criminalized. Simply because something strikes one person as indecent does not mean that it should be prohibited. People have differing values, and to allow governments to prohibit all conduct (or other things) that is found offensive by some member of society would be to allow our government to criminalize all aspects of life. In addition, people perceive things differently. For example, in 1990 the Cincinnati Arts Center was charged with obscenity for displaying photographs taken by a respected artist, Robert Mapplethorpe. Included in the photos were depic- tions of nude children. The prosecutor contended that the pictures were obscene. A jury did not agree. The Arts Center and its director were acquitted, and many of the jurors commented that the testimony of art experts convinced them that the pictures had serious artistic value and were not obscene.8

It is important that the First Amendment be flexible and tolerant of new ideas and methods of expression. Simply because the majority of citizens would not see value in a form of expression does not mean it has no value. If the opposite were true, then expression aimed at particular minority groups could be censored. This is not to say that there is no limit on the freedom of expression. When considering sexually oriented expression, that line is drawn when the expression becomes obscene.9

Obscenity has proven to be an elusive concept for the Supreme Court. Through a series of decisions, from 1957 to the present, the Court has attempted to define obscenity. The famous quotation from Justice Potter Stewart -“I shall not today attempt further to define [obscenity]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”—Jacobellis v. Ohio,10 is a testament to the difficulty in defining such a concept. It also reflects what many people believe—that they may not be able to define obscenity, but they recognize it when they see it.

In Roth v. United States,11 it was held that because it lacks redeeming social impor- tance, obscenity is not protected by the First Amendment. The Court then established

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a test for determining whether something was obscene, and, as such, not protected by the First Amendment. That test was “whether to the average person, applying contem- porary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” In addition, the material had to be “utterly without re- deeming social value.” Simply because “literature is dismally unpleasant, uncouth, and tawdry is not enough to make it ‘obscene.’”12

In 1973 the Supreme Court reexamined the Roth obscenity test in Miller v. California.13 In Miller the Court rejected the requirement that the material be “utterly without redeeming social value” and lowered the standard to lacking “serious literary, artistic, political, or scien- tific value.” The test under Miller has three parts:

1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest and

2. the work must depict or describe, in a patently offensive manner, sexual conduct specifically defined by the applicable state law, and

3. the work, when taken as a whole, must lack serious literary, artistic, political, or scientific value.

The Miller test makes it easier for states to regulate sexual materials. An “average person” has been equated with a reasonable person, as used in tort law.14 The material must appeal to “prurient interest.” Materials that have a tendency to excite a lustful, “shameful or morbid interest in nudity, sex or excretion” meet the prurient interest ele- ment.15 Material that provokes normal, healthy, sexual desires is not obscene because it does not appeal to prurient interest.16

The Court gave examples in Miller of “patently offensive” materials that included depictions or descriptions of “ultimate sex acts, normal or perverted, actual or simu- lated . . . of masturbation, excretory functions, and lewd exhibition of the genitals.”

One area where the states have substantially more power to regulate obscenity is when minors are involved. The Court has held that all child pornography is unprotected because of the special need to protect children from exploitation.17 Similarly, governments may prohibit the distribution and sale of erotic materials to minors, even if such materials are not obscene.18 Also, in Osborne v. Ohio,19 the Supreme Court held that a person may be convicted for possession of child pornography in the home. This is an exception to the general rule that a person may possess obscene material in the home.

As mentioned in Miller, governments may control the time, place, and manner of expression. Accordingly, certain restrictions may be valid that deal with expression in cer- tain places, such as establishments that sell alcohol. (Chapter 8 addresses constitutional defenses to criminal accusations and discusses other time, place, and manner issues.)

One place where the authority of the government to regulate sexually explicit ma- terials is lessened is in homes. In many respects, the law reflects the attitude that a “man’s home is his castle” and deserves special protection. Thus, the United States Supreme Court struck down the conviction of a man for possession of obscene materi- als in his home.20 However, as previously mentioned, a person is not privileged to pos- sess child pornography in the home.

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The Model Penal Code makes it a misdemeanor to knowingly or recklessly do any of the following:21

1. Sell, deliver, or provide (or offer to do one of the three) any obscene writing, picture, record, or other obscene representation.

2. Present or perform in an obscene play, dance, or other performance. 3. Publish or exhibit obscene materials. 4. Possess obscene materials for commercial purposes. 5. Sell or otherwise commercially distribute materials represented as obscene.

The Code presumes that anyone who distributes obscene materials in the course of business has done so knowingly or recklessly.

Material is considered obscene under the Code if “considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest, in nudity, sex, or excretion, and if in addition it goes substantially beyond customary lim- its of candor in describing or representing such matter.” Note that the Code’s definition is similar to the Supreme Court’s definition. The Code does add the requirement that the material go beyond “customary limits of candor.” The Code makes it an affirmative defense that the obscene material was possessed for governmental, scientific, educa- tional, or other justified causes. It also is not a crime for a person to give such materials to personal associates in noncommercial situations. The Code focuses on punishing commercial dissemination of obscene material.

Obscenity is a complex area of law. Many different criminal prohibitions exist throughout the states and federal government that focus on the sale, distribution, and possession of sexually oriented materials, performance of erotic dance, and public nu- dity. So long as minors are not involved, the activity is protected unless it is obscene. To determine whether pornography is obscene (hardcore), one must apply the three-part Miller test. The states are free to regulate if children are involved, either as participants in the erotic materials (or performance) or as buyers of erotic materials, even if the material is not obscene.

In 2010, the Supreme Court invalidated a federal statute that regulated films that depicted animal cruelty on First Amendment grounds.

[The federal statute in question] establishes a crimi- nal penalty of up to five years in prison for anyone who knowingly “creates, sells, or possesses a de- piction of animal cruelty,” if done “for commercial

gain” in interstate or foreign commerce. A depiction of “animal cruelty” is defined as one “in which a liv- ing animal is intentionally maimed, mutilated, tor- tured, wounded, or killed,” if that conduct violates

UNITED STATES V. STEVENS (559 U.S. 460 (2010)

(continued)

Criminal Procedure: Pre-Trial: Assignment

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