Studied by 1 person
Homicide and onwards
Define murder
The unlawful killing of another person with malice aforethought
In a murder code, first degree murder is…
Premeditated (length of time) and deliberate (quality of thought)
In a murder code, second degree murder is…
Implied malice murder, reckless conduct murder, and depraved heart murder.
What is manslaughter, and what are the two kinds of manslaughter that falls under the term ‘manslaughter’?
The killing of a human being in a manner less culpable than murder. There is voluntary manslaughter and involuntary manslaughter
Voluntary manslaughter is one of the two kinds of manslaughter. What is it?
An act done in the heat of passion. It must be more than mere words.
Involuntary manslaughter is one of the two kinds of manslaughter. What is it?
A negligent act that causes death, death the occurs in the commission of a misdemeanor, or committing a lawful act in an unlawful manner that results in death.
Define felony murder, as codified by statute and in common law
Felony murder is a death that occurs during the commission of a felony, such as kidnapping, rape, or robbery.
What are the limitations of felony murder?
Inherently dangerous felony (such as shooting while driving), agency, res gestae, and merger.
Explain the Georgia Murder Statute based on common law in simple terms.
A person commits murder when, in malice aforethought, express or implied, he/she causes the death of someone else
Express malice is the deliberate intention to unlawfully take the life of someone else. Implied malice is when there is no considerable provocation but the killing is from an abandoned and malignant heart
It is murder when the murderer in the commission of a felony causes the death of another human being, regardless of malice.
It is murder of the second degree when, in the commission of cruelty to children in the second degree, he/she causes the death of someone else irrespective of malice
Explain the Georgia Voluntary Manslaughter statute in simple terms
It is ___ when he/she causes the death of another human being under circumstances that would be murder, and if he/she acts solely from the result of sudden, violent, irresistible passion from serious provocation to excite such passion. But if there is an interval between the provocation and killing, enough for the voice of reason and humanity to be heard, the killing will be punished as murder.
Punishable by imprisonment for not less than or more than 20 years.
Explain the Georgia Involuntary Manslaughter statute in simple terms
It is ___ when in the commission of an unlawful act, he/she causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. Can punished by imprisonment for nothing more or less than 10 years.
It is ___ in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm. Punishable as a misdemeanor.
What is the murder statute under the Model Penal Code
Except as provided in Section 210.3(1)(b), criminal homicide constitutes ___ when: it is committed purposely or knowingly OR it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.
Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
What is manslaughter under the Model Penal Code
Criminal homicide constitutes ___ when it is (1) committed recklessly or (2) a homicide which would otherwise be murder 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 as he believes them to be.
___ is a felony of the second degree.
What is negligent homicide, according to the Model Penal Code?
(1) Criminal homicide constitutes ____ when it is committed negligently. (2) ___ is a felony of the third degree.
Define first degree murder according to the Pennslyvania murder code
A criminal homicide constitutes murder of the ___ degree when it is committed by an intentional killing (punishable by death or life imprisonment)
Define second degree murder according to the Pennsylvania murder code
A criminal homicide constitutes murder of the ___ degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony (punishable by life imprisonment).
Define third-degree murder according to the Pennslyvania murder code
All other kinds of murder will be murder of the ___ degree. Murder of the ___ degree is a felony of the first degree (punishable by imprisonment of no more than 40 years).
What is “intentional killing” according to the Pennslyvania murder code?
Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing.
What is “perpetration of a felony” according to the Pennslyvania murder code?
The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, or kidnapping.
Define voluntary manslaughter in the Pennslyvania model penal code
General rule is that a person who kills an individual without lawful justification commits ___, if at the time of the killing he/she is acting under a sudden and intense passion resulting in serious provocation by (1) the individual killed, or (2) another whom the actor endeavors to kill, but he/she negligently or accidentally causes the death of the individual killed.
Unreasonable belief killing is justifiable. A person who intentionally or knowingly kills an individual commits ___, if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title, but his belief is unreasonable.
Define involuntary manslaughter in the Pennslyvania Model Penal Code
General rule is that a person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act, in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.
What is the definition of a “person” in Alabama state law?
The term, when referring to the victim of a criminal homicide or assault, means a human being, including an unborn child in utero at any stage of development, regardless of viability.
Define malice aforethought in common law
___ occurs when there is
The intentional killing of a human being
the intention to inflict grievous bodily injury on another
an extremely reckless disregard for the value of human life (depraved heart murder)
felony murder (the intention to commit a felony during the commission or attempted commission of which a death results)
What are some new changes made to Heat of Passion Murder (can be charged as murder or voluntary manslaughter) to the California murder statute in 2014?
For purposes of determining sudden quarrel or heat of passion pursuant to subsection (a), the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. Nothing in this section shall preclude the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation.
Explain the case State v. Guthrie in simple terms.
The defendant was a dishwasher. He and the other dishwasher normally got along. The other dishwasher was making fun of him. The deceased snapped a rag at the defendant which hit the defendant in the nose. The defendant became enraged, pulled out a knife, and stabbed the victim in the neck.
What was murder defined as in State v. Guthrie?
Under West Virginia law: ‘‘Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit [specified felonies] is murder of the first degree. All other murder is murder of the second degree.’’ (Emphasis added.)
What was the ruling in State v. Guthrie?
The decision of first degree murder was appealed because of the jury instruction which made it difficult to distinguish between first and second degree murder. First degree murder in West Virginia requires willful, unlawful, malicious, deliberate, and premeditated murder. The jury instruction explained that malicious, deliberate, and premeditated meant that the murder was done intentionally. The specific problem concerns the definition of “premeditated”.
This decision replaced the instruction explaining that premeditation means there is a period of prior consideration prior to the killing although no time frame can be assigned, but there must be sufficient duration for the accused to be fully conscious of what he intended.
What was the original definition of Premeditated Murder in West Virginia in State v. Guthrie?
When the West Virginia Legislature adopted the Virginia murder statute in 1868, the meaning of ‘premeditated’ as used in the statute was essentially ‘knowing’ and ‘intentional.’ Since then, courts have consistently recognized that the mental process necessary to constitute ‘willful, deliberate and premeditated’ murder can be accomplished very quickly or even in the proverbial ‘twinkling of an eye.’ * * * The achievement of a mental state contemplated in a statute such as ours can immediately precede the act of killing. Hence, what is really meant by the language ‘willful, deliberate and premeditated’ * * * is that the killing be intentional.”
What were the new instructions given to the jury in State v. Guthrie?
"The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder."
What does “willful” in the definition of first-degree murder mean (first-degree murder requires a willful, premeditated, and deliberate act)?
Willful generally means intentional. It doesn’t add much so we focus on premeditation and deliberation.
In State v. Guthrie, did Guthrie commit first or second degree murder?
First-degree murder requires a premeditated (length of time) and deliberate (quality of thought) act, while second-degree murder is either implied malice murder, reckless conduct murder, and depraved heart murder.
Implied malice is a legal term that refers to when someone knowingly engages in an act that is dangerous and shows a disregard for human life, even if they didn't intend to kill anyone. Usually occurs during a felony.
Reckless conduct murder is a crime in which the perpetrator is aware that their act (or failure to act when there is a legal duty to act, recklessness) creates a significant risk of death or grievous bodily harm in the victim but ignores the risk and continues to act (or fail to act), and a human death results.
Depraved heart murder is when someone's actions are so reckless or negligent that they show a disregard for human life, resulting in the death of another person.
Guthrie had little to no time to reconsider his violent action that followed a snap to his nose. I would argue the lack of time to premeditate his action and to think about the consequences of his action, such as deliberately stabbing his friend in the neck, means Guthrie committed a second-degree murder of reckless conduct.
By the court, Guthrie was retried and convicted of first degree murder.
Define implied malice of second degree murder
A legal term that refers to when someone knowingly engages in an act that is dangerous and shows a disregard for human life, even if they didn't intend to kill anyone. It usually occurs during a felony.
Define reckless conduct of second degree murder
A crime in which the perpetrator is aware that their act (or failure to act when there is a legal duty to act, recklessness) creates a significant risk of death or grievous bodily harm in the victim but ignores the risk and continues to act (or fail to act), resulting in a human death.
Define depraved heart murder of second degree murder
When someone’s actions are so reckless or negligent that they show a disregard for human life, resulting in the death of another person.
Explain People v. Morrin
Morrin was convicted of first-degree murder. He testified he killed the victim Abell in self-defense after Abell threatened him with a knife and demanded sex. They had fought, and Morrin had managed to escape and strike Abell with a pair of tongs, which killed Abell. There were no witnesses and Morrin’s account was the only testimony. Morrin claimed self-defense but the jury rejected the claim. The case had to account for Morrin’s mental state, the nature of the altercation, and the lack of evidence around premeditation or deliberation.
The court ruled that Michigan adheres to a more meaningful standard. To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate actions should be long enough to afford a reasonable man time to subject the nature of his response to a ‘‘second look.’’“
Define premeditation and deliberation further. Can one premeditate without deliberation? Can one deliberate without premeditation?
You can focus on a person, so you think about killing them over and over without considering the quality or considering choices. It does not seem possible to consider several choices or the quality of your actions without thinking about the person or situation. So - you can premeditate without deliberating, but not deliberate without premeditating.
What is premeditation?
Premeditated homicide is the intentional killing of a person after the killer has given the act some thought and planning: Premeditated homicide is when a person intends to kill another person and has considered the decision before committing the act (time factor)
Distinction from second-degree murder: The act of thinking about the decision to kill, even if it's for a short time, raises the murder from second-degree to first-degree murder.
What is deliberation?
Deliberation is the quality of thought that goes into a murder. This is how much planning that goes into the execution of the murder, from transportation, weapon, place, and such. An urge to stab a friend may have a short premeditation interval but have no deliberation while spending time thinking about how to stab a friend and planning how to stab said friend has both premeditation and deliberation.
A suspect has a right to jury instruction if he/she is guilty of lesser but no greater offense. What is a lesser included offense?
A second degree murder, compared to the first degree murder. Larceny is lesser than robbery. Simple assault is lesser than assault with intent to murder, rape, or rob.
Explain Midgett v. State
Ronnie Midgett Sr was beating his 8-year-old son over some time. He would often beat the son when he was drunk. The son was also underdeveloped and malnourished. The medical examiner found numerous injuries: Both current, and ones that had healed. The cause of death was blunt force trauma consistent with an adult fist hitting the victim causing intra-abdominal hemorrhage.
What was the question asked to rule in Midgett v. State?
The question is if there is evidence of first-degree murder including premeditation and deliberation.
What was the majority opinion in Midgett v. State?
The majority opinion was that there was no evidence of premeditation or deliberation. “The evidence in this case supports only the conclusion that the appellant intended not to kill his son but to further abuse him, or that his intent if it was to kill the child, was developed in a drunken, heated rage, while disciplining the child. Neither of those supports a finding of premeditation and deliberation”.
add rest of homicide slides
add rest of homicide slides starting with sexual assault next
What are the three sex offenses in common law?
Rape
Statutory Rape
Sodomy
What is the actus reus for rape?
It either means
Forcibly
By means of certain forms of deception
While the female is asleep or unconscious
Upon a female incompetent to give consent (drugged, mentally disabled, too young)
What is the difference between force and consent in the actus reus of rape?
A person may passively acquiesce to an act. There can be instances when one party thinks there is consent, but the other party does not. There is also the question of whether no means no. Consent can be withdrawn.
What is the Goergia Law for rape?
A person commits the offense of rape when he has carnal knowledge of:
A female, forcibly and against her will
A female who is less than ten years of age
What is carnal knowledge in Georgia Law?
Carnal knowledge occurs when there is any penetration of the female sex organ by the male sex organ. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape. When a person has carnal knowledge of a female, who is less than ten years of age, the person has penetrated the female sex organ by a male sex organ, and the female is younger than ten years.
What is the mens rea of rape?
Rape is usually considered general intent so there doesn’t need to be a specific intent to commit rape. Intent normally is not an issue. Mistake of fact in some states is a defense that the suspect thought the victim consented.
Summarize the elements of rape in Georgia
Carnal knowledge (penetration of male>female sex organ), force, lack of consent.
Explain State v. Alston, 1984
The Defendant and the victim Ms. Brown had been in a consensual sexual relationship. During the six-month relationship, the couple had conflicts at times. Ms. Brown sometimes enjoyed the sexual relations, but she often had sex with the Defendant merely to accommodate him. At times their consensual sexual relations involved violence. Finally, Ms. Brown left the Defendant to live with her mother, but she did not tell the Defendant she wanted to break off the relationship because she was afraid he would be angry. One month later, the Defendant approached Ms. Brown where she attended school. The Defendant and Ms. Brown walked and talked for some time, during which he made certain threats about fixing Ms. Brown’s face so that her mother could see he was not playing. Finally, the Defendant took Ms. Brown to a friend's house. After a while, the Defendant asked Ms. Brown if she was “ready.” Ms. Brown replied that she wasn’t going to have sex with him. The Defendant began kissing Brown and undressing her. He told her to lie down on a bed. She complied, and the Defendant pushed her legs apart and had sexual intercourse with her. Ms. Brown did not try to push him away. The Defendant and Ms. Brown had sexual intercourse on one more occasion after the alleged rape, which appears to have begun as nonconsensual, but ended up being consensual.
What was the defendant’s appeal in State v. Alston?
Defendant appealed whether the evidence was sufficient to convict him of kidnapping and second-degree rape. The court in this case concluded the evidence was not sufficient to uphold a conviction for rape.
“Although Brown’s general fear of the defendant may have been justified by his conduct on prior occasions, absent evidence that the defendant used force or threats to overcome the will of the victim to resist the sexual intercourse alleged to have been rape, such general fear was not sufficient to show that the defendant used the force required to support a conviction for rape…”
In State v. Alston, why did the court say the crime of rape did not occur?
The state did not offer substantial evidence of the element of force….In the present case there was no substantial evidence of either actual or constructive force ...the record is devoid of evidence that Brown was in any way intimidated into having sexual intercourse with the defendant by that threat or any other act of the defendant on June 15.
The court finds there is sufficient evidence that the sex was against the victim’s will, but it finds insufficient evidence that the sex was forced. The court finds that there were acts of force and threats of force, but the court considers them unrelated to the act of sexual intercourse. The court seems to suggest that the victim must resist the act of sexual intercourse for it to be rape.
Was this a “consensual” relationship, according to the definition of consensus given in common law?
According to common law, a person may passively acquiesce to an act. There can be instances when one party thinks there is consent, but the other party does not. There is also the question of whether no means no. Consent can be withdrawn.
Therefore, Ms. Brown was not in a consensual relationship with the defendant at the time of the rape (or intercourse, as argued by the defendant) on June 15th. The consent was already withdrawn when Ms. Brown passively acquiesced to the act under threat.
In a continuing sexual relationship, how can the government show that the sexal intercourse in question was non-consensual? Is this good public policy? Can a person just say no?
This question will have to define whether consent under threat/duress can be considered consent. As a person can withdraw consent during an act, the government will have to take the word of the victim, the victim’s actions, and show the victim’s lack of consent to the specific act charged only by evidence of statements or actions by the victim which were clearly communicated to the defendant and which expressly and unequivocally indicated the victim’s withdrawal of any prior consent and lack of consent to the particular act of intercourse.
What is constructive force?
Modern statutes typically provide that nonconsensual intercourse obtained by threat of force constitutes forcible rape. At the time of Alston, the North Carolina rape statute did not include such a term, but the state’s court interpreted it to prohibit “constructive force,” ie. threat of force.
What if, on June 14, the suspect said he would kill the defendant if she did not have sex with him the next time he saw her? What if the next time he sees her, he is pleasant? If he did not repeat that threat on June 15 should it still be rape?
The rule is that if an act of sexual intercourse is by both force and against the victim’s will, it constitutes rape even if the victim gave consent to the defendant for previous acts of sexual intercourse.
What is Judge Estrich’s opinion in State v. Alston?
“I am not at all sure how the judges who decided Alston would explain the victim’s simultaneous refusal to consent and failure to resist. For myself, it is not at all difficult to understand that a woman who had been repeatedly beaten, who had been a passive victim of both violence and sex during the ‘‘consensual’’ relationship, who had sought to escape from the man, who is confronted and threatened by him, who summons the courage to tell him their relationship is over only to be answered by his assertion of a ‘‘right’’ to sex—a woman in such a position would not fight. She wouldn’t fight; she might cry.”
What is the Model Penal Code’s definition of force?
I) Physical force or restraint means a physical act or physical restraint that inflicts more than negligible physical harm, pain, or discomfort or that significantly restricts a person's ability to move freely. More than negligible physical harm includes but is not limited to a burn, black eye, or bloody nose, and more than negligible pain or discomfort includes but is not limited to the pain or discomfort resulting from a kick, punch, or slap on the face.
(ii) Aggravated physical force or restraint means a physical act or physical restraint that inflicts or is capable of inflicting death, serious bodily injury, or extreme physical pain, or that confines another for a substantial period in a place of isolation other than under color of law.
What is the Model Penal Code’s statute for Sexual Assault by Aggravated Physical Force or Restraint? (MPC 213.1)
An actor is guilty of Sexual Assault by Aggravated Physical Force or Restraint when:
The actor causes another person to submit to or perform an act of sexual penetration or oral sex
The act is without effective consent because:
The actor uses or explicitly or implicitly threatens to use aggravated physical force or restraint against anyone; and
The actor's use of or threat to use aggravated physical force or restraint causes the other person to submit to or perform the act of sexual penetration or oral sex; and
The actor acts knowingly with respect to the conduct, attendant circumstances, and results specified in paragraphs (a) and (b).
What can the Model Penal Code’s section 213.1 of Sexual Assault by Aggravated Physical Force or Restraint change in State v. Alston?
This section requires Alston to knowingly cause Cottie to submit to the sexual penetration and that he knew that the act was without effective consent because of his threat to use aggravated physical force. This is a higher level of mens rea than was required for rape under the 1962 provisions. Section 213.2 only requires proof of recklessness.
MPC Sexual Assault by Physical Force or Restraint is?
An actor is guilty of sexual assault by physical force or restraint when:
The actor causes another person to submit to or perform an act of sexual penetration or oral sex; and
The act is without effective consent because:
The actor uses or explicitly or implicitly threatens to use physical force or restraint against anyone; and
The actor's use or threat to use physical force or restraint causes the other person to submit to or perform the act of sexual penetration or oral sex; and
The actor is reckless with respect to the conduct, attendant circumstances, and results specified in paragraphs (a) and (b)
Explain Rusk v. State
Victim went to a class reunion and then bar hopping with a friend. At the last bar, she spoke with a male. When she left, he requested a ride home. She pulled up to his apartment and left the car running. He requested that she come inside and she declined. She said she was separated and didn’t want to cause further problems. She began to be scared. He took the keys out of the car and opened her door. She went inside with him. He went to the bathroom and she did not leave. He sat on the bed and she sat in a chair. She took her clothes off and his clothes off because he asked her to. He pulled her onto the bed. She kept telling him no. She asked if she did what he wanted if he would not kill her. She began to cry. He put his hands on her throat and started to lightly choke her. She performed oral sex and they had sexual intercourse.
What was the Majority opinion in Rusk v. State, when Rusk appealed the charge of second-degree rape?
Force is an essential element of rape. The suspect must use either force or the threat of force. There was no resistance on the part of the victim. While the suspect may have had the keys, she could have escaped on the street or when he went to the bathroom. “The way he looked” does not satisfy the fear required for rape.
The state argues that the accused started to lightly choke her and her being in a strange part of town late at night was sufficient to overcome the will of the 21-year-old. We find the evidence legally insufficient to warrant a conclusion that the appellant’s words or actions created in the mind of the victim a reasonable fear that if she resisted, he would have harmed her. At footnote 1 on pp. 447, the majority discusses what happened after intercourse. The victim says she sat in her car and wondered what would have happened if she did not do what he wanted her to do. The majority said if she had to wonder, then there was not force.
What was the Dissenting opinion for Rusk v. State, when Rusk appealed the charge of second-degree rape?
The majority substituted their interpretation of the facts for that of the judge and jury. The law states that a person is guilty of second-degree rape if he 1) engages in vaginal intercourse with another person, 2) by force or threat of force, 3) against the will, and 4) without the consent of the other person. The only question is if there was force or threat of force.
Courts often confuse lack of consent and force. These are two separate elements under the law. This causes courts to focus on the resistance of the victim rather than the acts of the assailant. While this may seem illogical, it is the state of Maryland law until changed. The question is how much resistance must the victim offer to show force (and how much physical harm must she risk).
How does the dissent argue for the matter of consent under threat, in comparison to robbery?
The court would not have objected if the charge had been a robbery and the appellant had taken her keys. The most common type of resistance in rape cases is verbal, rape victims who resisted were more likely to be injured than the ones who did not. There is no accusation that the jury was not instructed properly as to the law, but the majority of the court without the ability to see and hear the witnesses has simply concluded that in their judgement, Pat’s fear was not a reasonable one, or that there was no fear at all.
What are the conclusions to be drawn from Rusk v. State?
The question asked by the dissent was how much resistance is needed to constitute force, or threat of force. A conviction for rape requires evidence of resistance by the victim that was overcome by force or prevented by reasonable fear of imminent bodily harm. “The look of his eyes” or the threat of being stranded were not considered force, or threat of force, as no resistance was made.
Is there force or threat of force in Rusk v. State?
According to the Model Penal Code, Force is physical force or restraint or aggravated physical force or restraint (which includes penetration without effective consent). Whether the taking of the car keys and the choking, according to Ms. Pat, can be considered aggravated physical force is debatable because Rusk did not knowingly rape Pat, if his testimony is to be believed. Pat’s perception of the events and Rusk’s perception of the events differ.
Explain Commonwealth v. Berkowitz.
This case involves two college students. The victim went to a room of a friend, but he was not there. She stayed in the room and talked to her friend’s roommate, who got on the floor with the victim and pushed her back and straddled her. The victim said she needed to leave, but the defendant locked the door, put the victim on his bed, removed her clothes, and penetrated her. She did not make physical resistance, although she did say “no”.
Prior to this contact, the victim and suspect spoke several times. Victim asked suspect of his penis size, stopped by his room several times, and asked him about his penis on a different occasion. The defendant recalls the victim returning his kisses and moaning passionately while saying no. The jury convicted the suspect of rape.
What was the decision for Commonwealth v. Berkowitz?
The Commonwealth contends the victim did not consent and any force used to complete the act of intercourse constitutes forcible compulsion. The degree of force for rape is relative and depends on the facts and particular circumstances of each case and will be determined by the totality of the circumstances. The victim’s testimony as to the physical aspects of the encounter cannot serve as a basis to prove forcible compulsion. There is no evidence that the victim could not have removed herself from the victim’s bed and walked out of the room without risk of harm or danger.
While the victim may have said no throughout the encounter, it is only relevant to prove that the intercourse was against the victim’s will. It is not enough to show forcible compulsion. If the legislature intended to define rape as non-consensual intercourse, it could have done so, but it did not. Rape is sexual intercourse by forcible compulsion. We conclude that the evidence adduced by the Commonwealth was insufficient to convict the appellant of rape.
What evidence in Commonwealth v. Berkowitz shows that there was force used that led to a conviction?
Force is physical force or restraint where the actor acts recklessly and aggravated physical force or restraint where the actor acts knowingly, and uses threat.
In this case, the victim said no repeatedly, the suspect pushed her onto the ground and straddled her using his weight, locked the door, placed the victim on the bed, and removed her clothes. These are clear signs of physical force or restraint, where the victim was immobilized several times by the suspect.
How would you argue there was no force in this case and that the defendant should be acquitted?
The victim asked the suspect about his penis on at least one occasion and possibly more. The victim may have asked the suspect to show her his penis. The victim initiated the contact with the suspect by going into his room and waking him up. The victim had come to his room previously. The victim was familiar with the room, the building, and the surroundings. The victim knew the door could be opened from the inside so she was not locked in. The victim never said she was in fear for her safety.
What is considered “resistance” in Maryland? (Hazel v. State)
“Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety.”
Note that this law is still rooted in the common law tradition that a female must resist to the utmost, although the amount of resistance is not specified.
How was “force” defined in State v. Brooks?
Brooks accessed his ex-wife’s e-mail account. He made copies of communications she had with a married co-worker indicating she was having an affair with him. Brooks threatened to give copies of the e-mails to her employer and the co-worker’s wife if she did not have sexual intercourse with him.
In Kansas, force was defined as rape for “force or fear”, so Brooks was convicted.
What is the Model Penal Code’s Sexual Assault by Extortion (213.4)?
An actor is guilty of Sexual Assault by Extortion when:
The actor causes another person to submit to or perform an act of sexual penetration or oral sex
The act is without the effective consent because the actor explicitly or implicitly threatened:
to accuse that person or anyone else of a criminal offense or of a failure to comply with immigration regulations
to take or withhold action as an official, or cause an official to take or withhold action, whether or not the purported official has actual authority to do so
to take any action or cause any consequence that would cause submission to or performance of the act of sexual penetration or oral sex by someone or ordinary resolution in that person’s situation under all the circumstances
the actor’s threat causes the other person to submit to or perform the act of sexual penetration or oral sex
When there is a power difference/dynamic between two people, this type of law could make cases of sexual harassment criminal. You can think of high profile people (teachers, presidents, coaches, government officials such as police, etc) that could fall within this law.
Could the male have been mistaken about her consent? How would you apply mistake of fact to Commonwealth v. Berkowitz?
A Mistake of Fact can be a defense if: “the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or the law provides that the state of mind established by such ignorance or mistake constitutes a defense.” A defendant’s erroneous belief as to a fact may negate a required mental state and he could be found not guilty.
An honest, and reasonable mistake can negate mens rea (intentionally, knowingly, recklessly, negligently) in general intent crimes. If the law was written as a specific intent crime, the belief would only have to be in good faith regardless of whether it was reasonable. In any case, the question is whether the mistake of fact can negate mens rea.
What are the two important facts to know in a juvenile case?
Because the person is a juvenile, the court does not list the person's name, but instead uses initials.
Juveniles are not found guilty of a crime. There may be different terms, but you will see something like the juvenile was declared delinquent. In juvenile terms, this means the juvenile was found guilty.
Explain the case M.T.S., New Jersey, 1992.
There are two very different versions of events. The female says she woke up and M.T.S. was having sex with her. M.T.S. said she invited him to visit her in the middle of the night, that they began kissing, that they began to have sex and she told him to stop which he did.
What is the main question asked in M.T.S., New Jersey, 1992
How much force is necessary, in what is meant by force?
The statute in New Jersey says sexual assault is…
An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any of the following circumstances
The actor uses physical force or coercion, but the victim does not sustain severe personal injury
“The New Jersey Code of Criminal Justice, N.J.S.A. 2C:14–2c(1), defines “sexual assault” as the commission “of sexual penetration” “with another person” with the use of “physical force or coercion.”
How was the sexual assault statute interpreted in M.T.S., New Jersey, 1992?
“We conclude, therefore, that any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of “physical force” is satisfied under N.J.S.A. 2C:14–2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.”
In short, in order to convict someone under the sexual assault statute by defining how much force is necessary to constitute force, the state must provide beyond a reasonable doubt that there was sexual penetration, that it was accomplished, and that the two were done wtihout permission from the victim. If there is evidence to suggest the defendant believes there was permission, the state must demonstrate either that the defendant did not actually believe the permission was given or that the belief was unreasonable under all circumstances.
Give an example of what would constitute forcible rape under M.T.S., New Jersey, 1992.
If a person were to say, "I'm going to have intercourse with you at the count of ten unless you say no" and then proceeds to count while the partner is passive and says nothing, the defendant would be guilty of forcible rape under M.T.S. Permission must be specifically for the act of intercourse. Consent to kissing, petting, or other acts is not consent for intercourse. Consent can be shown by actions and words are not required.
What is “consent” in the Model Penal Code (213.0)?
Consent for the purposes of Article 213 means a person’s willingness to engage in a specific act of sexual penetration, oral sex, or sexual contact.
Consent may be express or it may be inferred from behavior, both action and inaction, in the context of all the circumstances.
Neither verbal nor physical resistance is required to establish that consent is lacking, but their absence may be considered, in the context of all the circumstances, in determining the issue of consent.
Suppose that a wealthy corporate executive and unemployed single mother begin dating and she eventually moves into his home in a sexual relationship. After a while, he tells her that he is no longer happy with their sexual relationship and, if she is not willing to have sexual relations with him more often in the future, he will kick her and her young children out of his house. As a result, she has intercourse with him more often. Is this “freely given” permission, or does the economic-power differential render this rape?
The author of this article suggests that the difference between freely-given and coerced-permission could depend on whether the “threat” is lawful. In this case, the threat is lawful, but the point is that defining freely given consent may be difficult. The note goes on to discuss women who have sex with their boyfriend for fear of being dumped.
How can civil action (civil suit) also be a remedy for rape?
The standard in civil cases is preonderance of the evidence rather than proof beyond a reasonable doubt. It requires a lesser standard of proof and sometimes, monetary sanctions may be better for the victim.
Describe Boro v. Superior Court.
The suspect called the defendant and told her he was a doctor. He said she contracted a dangerous disease from the use of public toilets. He said that she could have an expensive surgery or pay a lesser sum and have an anonymous donor inject her during sexual intercourse. She consented to the intercourse fearing that her life was in danger.
What was the court’s decision in Boro v. Superior Court?
The court conluded that if the fraud was to the nature of the act, he would be guilty of rape. The example given was of a doctor who performed a pelvic exam. He began by inserting an instrument and then inserted his penis while the woman was present from seeing what was occuring. The court concluded that, as the law was written, if a suspect convinces a person to have sexual intercourse where the woman consents, it is not rape.
What is Fraud in factum, that can be applied to Boro v. Superior Court?
Fraud in factum (the duties, costs, etc) vs fraud in the inducement (fraud of what will take place). In this case, she consented to the act vs the doctor where the victim did not consent to the act
If the victim believed her life was in danger, in Boro v. Superior Court, why is this not a threat of rape?
The court viewed it as a forecast of her death and not a threat that the suspect would harm the victim.
Define fraud in the sense of rape.
The case Boro v. Superior Court draws the line in that fraud is used, but the victim consents to the act of intercourse. If the victim is mistaken about facts used to convince the victim to have intercourse, it may not be rape because the victim consented to the act. If the fraud is to consent to some other act (i.e. just the exam and not intercourse), it may be rape.
Where is the line between fraud and rape? Consider the following scenarios:
A man tells a woman he loves her when he does not because he knows she will not have intercourse otherwise
A man tells a woman he is single when he is married
A woman claims to be wealthy when she is not
Harvey Weinstein promising a movie role that never materializes
If a woman did something (i.e. enter a home) believing it would be a movie casting interview, but ended up having intercourse instead, it can be considered rape.
How do states take into account the victim’s ability to consent while intoxicated?
Many states differentiate between voluntary intoxication on the part of the victim and surreptitious intoxication (where the suspect induces intoxication unknown to the victim). The Model Penal Code 213.3(1) Sexual Assault of an Incapacitated Person describes rape while intoxicated.
How do Mistake of Fact apply to rape cases? Can the suspect be mistaken about consent and how should that be taken into account?
If a person is mistaken about a fact (see State v. Berkowitz), this mistake can negate Mens Rea. Rape cases are often he said / she said cases.
The suspect can be mistaken about consent, for example, a message consenting to intercourse on a dating app by a third party may lead to an unfortunate accident where the suspect rapes the defendant by a mistake of fact as the third party used the defendant’s picture/name (i.e. a friend engaged in sexual conversation on behalf her friend to set up a date for her).
Explain Commonwealth v. Lopez.
Victim and suspect walked in the woods near the foster home of the victim. The victim was afraid of getting in trouble for brining a boy to the home, so they walked deeper into the woods. The victim said the suspect forced her onto a concrete slab where she was forcibly raped. The suspect said that the victim was a willing participant and became upset when he declined to join her at a party that evening. The doctor noted significant bruising to the victim's knees, excessive force and trauma to the vaginal area, a lot of swelling in her external vaginal area, her hymen had been torn and was still oozing. The doctor noted that in his experience it was fairly rare to see that much swelling and trauma.
In Commonwealth v. Lopez, the suspect said the victim initiated the sexual encounter and was a more than willing participant, and was upset when the suspect said he was not willing to see the victim at a later date. Could the suspect be mistaken about consent?
It is hard to say there can be a mistake of fact when the victim resisted against the intercourse to the degree she suffered visible and serious wounds.
Explain the two views on consent understood by Mistake of Fact.
In one perspective, a honest and reasonable mistake of fact can negate mens rea.
In another, a general intent crime of rape does not require the defendant to be aware of the lack of consent, there just has to be lack of consent. As long as there is forcible intercourse, it does not matter if the defendant thought the victim consented.
How is culpability shown in criminal law, according to Commonwealth v. Lopez?
A fundamental tenet of criminal law is that culpability requires a showing that the prohibited conduct (actus reus) was committed with the concomitant mental state (mens rea) prescribed for the offense. The mistake of fact “defense” is available where the mistake negates the existence of a mental state (mens rea) essential to a material element of the offense.
What is the common law definition of rape?
At common law, rape was defined as “the carnal knowledge of a woman forcibly and against her will.” Since 1642, rape has been proscribed by statute in this Commonwealth. While there have been several revisions to this statute, the definition and the required elements of the crime have remained essentially unchanged since its original enactment. The current rape statute * * * provides in pertinent part:
“Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for not more than twenty years.”
This statute follows the common-law definition of rape, and requires the Commonwealth to prove beyond a reasonable doubt that the defendant committed (1) sexual intercourse (2) by force or threat of force and against the will of the victim.
How does Commonwealth v. Lopez define the second element of rape in common law?
As to the first element, there has been very little disagreement. Sexual intercourse is defined as penetration of the victim, regardless of degree. The second element has proven to be more complicated. We have construed the element, “by force and against her will,” as truly encompassing two separate elements each of which must independently be satisfied. Therefore, the Commonwealth must demonstrate beyond a reasonable doubt that the defendant committed sexual intercourse (1) by means of physical force, nonphysical, constructive force, or threats of bodily harm, either explicit or implicit; and (2) at the time of penetration, there was no consent.
What did the court say in Commonwealth v. Lopez about mistake of fact?
Although the Commonwealth must prove lack of consent, the “elements necessary for rape do not require that the defendant intend the intercourse be without consent” (referring to general intent).
A mistake of fact as to consent, therefore, has very little application to our rape statute. Because [the rape statute] does not require proof of a defendant’s knowledge of the victim’s lack of consent or intent to engage in nonconsensual intercourse as a material element of the offense, a mistake as to that consent cannot, therefore, negate a mental state required for commission of the prohibited conduct. Any perception (reasonable, honest, or otherwise) of the defendant as to the victim’s consent is consequently not relevant to a rape prosecution.
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