Section 4 Culpability Requirements 133 N liability but no imprisonment punishment

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1 Section 4 Culpability Requirements 133 police soon arrive. Thorence is pale and unconscious. Fungwe screams in anguish, I killed my baby! I killed my baby! Thorence is rushed to the Michigan Children s Hospital and found to have a severe case of hyperthermia. The doctors try to resuscitate him but because his jaw is locked tightly, they have difficulty intubating him. He dies soon after reaching the hospital. A Detroit Police Department spokesman later reports that the baby s body temperature was at least 108 degrees. The doctors are sure Thorence s temperature was higher than that, but the thermometer would go no higher. 1. Relying only on your own intuitions of justice, what liability and punishment, if any, does Thomas Fungwe deserve? N no liability 1 day 2 wks 2 mo 6 mo 1 yr 3 yrs 7 yrs 15 yrs 30 yrs life death liability but no imprisonment punishment 2. What liability, if any, under the then-existing statutes? 3. What liability, if any, under the Model Penal Code? THE LAW Michigan Statutes Annotated (1999) Title 28. Crimes, Part Two. Substantive Criminal Law Chapter 286a. Penal Code Chapter XLV. Homicide Section First-Degree Murder; Penalty; Definitions Sec (1) A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life: (a) Murder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing. (b) Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, or kidnapping. (c) A murder of a peace officer or a corrections officer committed while the peace officer or corrections officer is lawfully engaged in the performance

2 134 Part II Offense Requirements of any of his or her duties as a peace officer or corrections officer, knowing that the peace officer or corrections officer is a peace officer or corrections officer engaged in the performance of his or her duty as a peace officer or corrections officer. (2) As used in this section: (a) Arson means a felony violation of chapter X. (b) Corrections officer means any of the following: (i) A prison or jail guard or other prison or jail personnel. (ii) Any of the personnel of a boot camp, special alternative incarceration unit, or other minimum security correctional facility. (iii) A parole or probation officer. (c) Major controlled substance offense means any of the following: (i) A violation of section 7401(2)(a)(i) to (iii) of the public health code, MCL (ii) A violation of section 7403(2)(a)(i) to (iii) of the public health code, MCL (iii) A conspiracy to commit an offense listed in subparagraph (i) or (ii). (d) Peace officer means any of the following: (i) A police or conservation officer of this state or a political subdivision of this state. (ii) A police or conservation officer of the United States. (iii) A police or conservation officer of another state or a political subdivision of another state. Section Murder; Second Degree Sec All other kinds of murder shall be murder of the second [2nd] degree, and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same. Section Manslaughter; Penalties Sec Any person who shall commit the crime of manslaughter shall be guilty of a felony punishable by imprisonment in the state prison, not more than fifteen [15] years or by fine of not more than seven thousand five hundred [7,500] dollars, or both, at the discretion of the court. Section Negligent Homicide; Penalty Sec Any person who, by the operation of any vehicle upon any highway or upon any other property, public or private, at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years or by a fine of not more than $2,000.00, or by both such fine and imprisonment.

3 Section 4 Culpability Requirements 135 Section Negligent Homicide; Inclusion in Manslaughter; Verdict of Guilty Sec The crime of negligent homicide shall be deemed to be included within every crime of manslaughter charge to have been committed in the operation of any vehicle, and in any case where a defendant is charged with manslaughter committed in the operation of any vehicle, if the jury shall find the defendant not guilty of the crime of manslaughter, it may render a verdict of guilty of negligent homicide. Section Exposing Child with Intent to Injure or Abandon Sec Any father or mother of a child under the age of six [6] years, or any other person who shall expose such child in any street, field, house or other place, with intent to injure or wholly to abandon it, shall be guilty of a felony, punishable by imprisonment in the state prison not more than ten [10] years. Section (2). Definitions; Child Abuse Sec. 136b. (1) As used in this section: (a) Child means a person who is less than 18 years of age and is not emancipated by operation of law as provided in section 4 of MCL (b) Cruel means brutal, inhuman, sadistic, or that which torments. (c) Omission means a willful failure to provide the food, clothing, or shelter necessary for a child s welfare or the willful abandonment of a child. (d) Person means a child s parent or guardian or any other person who cares for, has custody of, or has authority over a child regardless of the length of time that a child is cared for, in the custody of, or subject to the authority of that person. (e) Physical harm means any injury to a child s physical condition. (f) Serious physical harm means any physical injury to a child that seriously impairs the child s health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut. (g) Serious mental harm means an injury to a child s mental condition or welfare that is not necessarily permanent but results in visibly demonstrable manifestations of a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. (2) A person is guilty of child abuse in the first degree if the person knowingly or intentionally causes serious physical or serious mental harm to a child. Child abuse in the first degree is a felony punishable by imprisonment for not more than 15 years.

4 136 Part II Offense Requirements (3) A person is guilty of child abuse in the second degree if any of the following apply: (a) The person s omission causes serious physical harm or serious mental harm to a child or if the person s reckless act causes serious physical harm to a child. (b) The person knowingly or intentionally commits an act likely to cause serious physical or mental harm to a child regardless of whether harm results. (c) The person knowingly or intentionally commits an act that is cruel to a child regardless of whether harm results. (4) Child abuse in the second degree is a felony punishable by imprisonment for not more than 4 years. (5) A person is guilty of child abuse in the third degree if the person knowingly or intentionally causes physical harm to a child. Child abuse in the third degree is a misdemeanor punishable by imprisonment for not more than 2 years. (6) A person is guilty of child abuse in the fourth degree if the person s omission or reckless act causes physical harm to a child. Child abuse in the fourth degree is a misdemeanor punishable by imprisonment for not more than 1 year. (7) This section does not prohibit a parent or guardian, or other person permitted by law or authorized by the parent or guardian, from taking steps to reasonably discipline a child, including the use of reasonable force. People v. Richardson 293 N.W.2d 332 (Mich. 1980) Defendant was convicted of first-degree murder, and appealed on the contention that the jury was not instructed on the definition of involuntary manslaughter, a crime for which his evidence provided support. The court held the judge s refusal to instruct on the lesser crimes to be in error, and noted that Michigan s manslaughter statute does not define that offense [involuntary manslaughter], but instead incorporates the common-law definition. People v. Ryczek 194 N.W. 609 (Mich. 1923) Defendant was convicted of involuntary manslaughter for colliding with a boy pushing his baby sister in a cart, which resulted in the baby s death. The court affirmed his conviction and applied the common law definition that involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.... [Here, the defendant] while doing a lawful act in driving his automobile,...did it in such a negligent manner

5 Section 4 Culpability Requirements 137 that it amounted to gross negligence on his part. The court found that if the defendant [had] given the most casual glance ahead of him, he would have observed the children approaching. Consequently, the jury was well within their province in finding that such conduct was gross negligence, deserving of conviction. People v. Clark 556 N.W.2d 820 (Mich. 1996) Defendant was convicted of involuntary manslaughter for the death of her four-year-old son. She was suspected of child abuse. The court adopted the common law definition of the crime, and added that [t]he kind of negligence required for manslaughter is... often described as... gross negligence, [for which] three elements must be satisfied. These elements are embodied in CJI2d that expressed the people s theory of the defendant s guilt.... These elements are: (1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another. (2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand. (3) The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. People v. Clark 431 N.W.2d 88 (Mich. App. 1988) Defendant was convicted of negligent homicide after he drove his semitrailer truck through a red light and struck an oncoming car. The court stated that the crime of negligent homicide is the killing of a person through an act of ordinary negligence, an act which is otherwise noncriminal, which becomes criminal because the victim dies. People v. Traughber 439 N.W.2d 231 (Mich. 1989) Defendant was convicted of negligent homicide for causing a fatal crash when he swerved into another lane of traffic. On appeal, the defendant challenged the jury instructions as prejudicial by requiring more than a reasonable standard of care. The court held the trial judge s instructions were correct, and stated that [t]here is no question that the applicable standard of care in negligent homicide cases is that of a reasonable person. CJI 16:5:02(1) states: For negligent homicide the prosecution must prove beyond a reasonable doubt that the defendant was guilty of ordinary negligence. This instruction goes on to explain that [o]rdinary negligence is defined as want of reasonable care; that is, failing to do what an ordinarily sensible person would have done under the conditions and circumstances then existing.... CJI 16:5:02(4). However, the court reversed the

6 138 Part II Offense Requirements conviction because the defendant had reacted to an emergency situation in a manner that was not contrary to that of a reasonably prudent man under similar circumstances. THE CASE OF RAYMOND LENNARD GARNETT Raymond Lennard Garnett is a twenty-year old man living in Silver Spring, Maryland, a Washington, D.C., suburb. Garnett is average height ( ) and weight, but is legally mentally retarded, with an I.Q. of 52. (The Supreme Court recently held that an I.Q. of 70 or lower qualifies as mentally retarded.) Garnett reads at about a third-grade level and his math skills put him on a fifthgrade level. He attended special education classes, but recently left school for a short time when the other students teased him so mercilessly that he became too scared to return to class. He was home-schooled for a time but eventually returned to public school. He cannot complete many of the required tasks, because he does not understand the vocational assignments. He is often confused and sometimes gets lost. He does not pass any of the state s graduation tests and so receives only a certificate of attendance rather than a diploma. He presently interacts with others and processes things much as an eleven- or twelve-year old would. In November of 1990, Garnett s friend introduces him to Erica Frazier. They both tell Garnett that Erica is sixteen years old, a fact later confirmed by her friends. In reality, Erica is only thirteen. Garnett is surprised that she is interested in talking to him. He likes her and enjoys talking with someone who does not make fun of him. Erica and Garnett talk on the phone off and on over the next several months. On the evening of February 28, 1991, Garnett is stranded. He needs a ride home and notices that Erica s house is nearby. He approaches her house on Liberty Heights Lane at about 9 p.m. Erica opens her bedroom window and invites him in. She tells him to get a ladder and to climb up to her window so as not to disturb her parents. He enters her room and the two sit and talk for a while. One thing leads to another and they eventually end up having consensual sex. Afterwards, Garnett and Erica lie for hours talking. Finally, at 4:30 a.m., Garnett leaves. Figure 16 Frazier s house (with tree) (Catherine McAlpine)

7 Section 4 Culpability Requirements 139 Eight and a half months after their encounter, on November 19, 1991, Erica gives birth to a baby girl at Shady Grove Adventist Hospital. Her mother, Brenda Freeman, had not been aware of the pregnancy. Erica explains that Garnett had visited once and that it was her only sexual experience. The next day, Ms. Freeman contacts the Youth Division of the police to report the rape of her daughter. Garnett is subsequently arrested for statutory rape after being determined to be the biological father. 1. Relying only on your own intuitions of justice, what liability and punishment, if any, does Raymond Lennard Garnett deserve? N no liability 1 day 2 wks 2 mo 6 mo 1 yr 3 yrs 7 yrs 15 yrs 30 yrs life death liability but no imprisonment punishment 2. What liability, if any, under the then-existing statutes? 3. What liability, if any, under the Model Penal Code? THE LAW Annotated Code of Maryland (1990) Section 461. Definitions Article 27. Crimes and Punishments I. Sexual Offenses (a) In general. In this subheading, the following words have the meanings indicated. (b) Mentally defective. Mentally defective means (1) a victim who suffers from mental retardation, or (2) a victim who suffers from a mental disorder, either of which temporarily or permanently renders the victim substantially incapable of appraising the nature of his or her conduct, or resisting the act of vaginal intercourse, a sexual act, or sexual contact, or of communicating unwillingness to submit to the act of vaginal intercourse, a sexual act, or sexual contact. (c) Mentally incapacitated. Mentally incapacitated means a victim who, due to the influence of a drug, narcotic or intoxicating substance, or due to any act committed upon the victim without the victim s consent or awareness, is rendered substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse, a sexual act, or sexual contact. (d) Physically helpless. Physically helpless means (1) a victim who is unconscious; or (2) a victim who does not consent to an act of vaginal intercourse,

8 140 Part II Offense Requirements a sexual act, or sexual contact, and is physically unable to resist an act of vaginal intercourse, a sexual act, or sexual contact or communicate unwillingness to submit to an act of vaginal intercourse, a sexual act, or sexual contact. (e) Sexual act. Sexual act means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Emission of semen is not required. Penetration, however slight, is evidence of anal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person s body if the penetration can be reasonably construed as being for the purposes of sexual arousal or gratification or for abuse of either party and if the penetration is not for accepted medical purposes. (f) Sexual contact. Sexual contact, as used in 464B and 464C, means the intentional touching of any part of the victim s or actor s anal or genital areas or other intimate parts for the purposes of sexual arousal or gratification or for abuse of either party and includes the penetration, however slight, by any part of a person s body, other than the penis, mouth, or tongue, into the genital or anal opening of another person s body if that penetration can be reasonably construed as being for the purposes of sexual arousal or gratification or for abuse of either party. It does not include acts commonly expressive of familial or friendly affection, or acts for accepted medical purposes. (g) Vaginal intercourse. Vaginal intercourse has its ordinary meaning of genital copulation. Penetration, however slight, is evidence of vaginal intercourse. Emission of semen is not required. Section 461A. Admissibility of Evidence in Rape Cases (a) Evidence relating to victim s chastity. Evidence relating to a victim s reputation for chastity and opinion evidence relating to a victim s chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or second degree. Evidence of specific instances of the victim s prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is: (1) Evidence of the victim s past sexual conduct with the defendant; or (2) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or (3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or (4) Evidence offered for the purpose of impeachment when the prosecutor puts the victim s prior sexual conduct in issue. (b) In camera hearing. Any evidence described in subsection (a) of this section may not be referred to in any statements to a jury nor introduced at trial without the court holding a prior in camera hearing to determine the admissibility of the evidence. If new information is discovered during the course of the trial that may make the evidence described in subsection (a) admissible, the court may order an in camera hearing to determine the admissibility of the proposed evidence under subsection (a).

9 Section 4 Culpability Requirements 141 Section 461B. Instructions In any criminal prosecution for rape, attempted rape, assault with intent to commit a rape, assault with intent to commit a sexual offense, or any other sexual offense, the jury may not be instructed: (1) To examine with caution the testimony of the prosecuting witness, solely because of the nature of the charge; (2) That the charge is easily made or difficult to disprove, solely because of the nature of the charge; or (3) As to any other similar instruction, solely because of the nature of the charge. Section 462. First Degree Rape (a) What constitutes. A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person and: (1) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or (2) Inflicts suffocation, strangulation, disfigurement, or serious physical injury upon the other person or upon anyone else in the course of committing the offense; or (3) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnaping; or (4) The person commits the offense aided and abetted by one or more other persons; or (5) The person commits the offense in connection with the breaking and entering of a dwelling house. (b) Penalty. Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for no more than the period of his natural life. Section 463. Second Degree Rape (a) What constitutes. A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person: (1) By force or threat of force against the will and without the consent of the other person; or (2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless; or

10 142 Part II Offense Requirements (3) Who is under 14 years of age and the person performing the act is at least four years older than the victim. (b) Penalty. Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years. Section 464. First Degree Sexual Offense (a) What constitutes. A person is guilty of a sexual offense in the first degree if the person engages in a sexual act: (1) With another person by force or threat of force against the will and without the consent of the other person, and: (i) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or (ii) Inflicts suffocation, strangulation, disfigurement, or serious physical injury upon the other person or upon anyone else in the course of committing the offense; or (iii) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnaping; or (iv) The person commits the offense aided and abetted by one or more other persons; or (v) The person commits the offense in connection with the breaking and entering of a dwelling house. (b) Penalty. Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for no more than the period of his natural life. Section 464A. Second Degree Sexual Offense (a) What constitutes. A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person: (1) By force or threat of force against the will and without the consent of the other person; or (2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless; or (3) Under 14 years of age and the person performing the sexual act is four or more years older than the victim. (b) Penalty. Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years.

11 Section 4 Culpability Requirements 143 Section 464B. Third Degree Sexual Offense (a) What constitutes. A person is guilty of a sexual offense in the third degree if the person engages in sexual contact: (1) With another person against the will and without the consent of the other person, and: (i) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or (ii) Inflicts suffocation, strangulation, disfigurement or serious physical injury upon the other person or upon anyone else in the course of committing that offense; or (iii) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnaping; or (iv) Commits the offense aided and abetted by one or more other persons; or (2) With another person who is mentally defective, mentally incapacitated, or physically helpless, and the person knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless; or (3) With another person who is under 14 years of age and the person performing the sexual contact is four or more years older than the victim. (b) Penalty. Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 10 years. Section 464C. Fourth Degree Sexual Offense (a) What constitutes. A person is guilty of a sexual offense in the fourth degree if the person engages: (1) In sexual contact with another person against the will and without the consent of the other person; or (2) In a sexual act with another person who is 14 or 15 years of age and the person performing the sexual act is four or more years older than the other person; or (3) In vaginal intercourse with another person who is 14 or 15 years of age and the person performing the act is four or more years older than the other person. (b) Penalty. Any person violating the provisions of this section is guilty of a misdemeanor and upon conviction is subject to imprisonment for a period of not more than one year, or a fine of not more than $1,000, or both fine and imprisonment.

12 144 Part II Offense Requirements Eggleston v. State 241 A.2d 433, 434 (Md. Ct. Spec. App. 1968) Defendant was charged with statutory rape. On appeal, he argued that the statute s language describing the crime as feloniously committed meant that a specific intent was required. However, the court rejected his argument, and held that the state s statutory rape provision did not permit a mens rea requirement and the term feloniously was merely a description used to classify the offense. The court applied the generally accepted state of the law as set out in Wharton s Criminal Law, [which] fail[ed] to vindicate appellant s proposition: It is no defense that the defendant did not know that the female was under the statutory age of consent. It is immaterial that the defendant in good faith believed that the female was above the prohibited age; that his belief, though erroneous, was reasonable; or that the defendant had been misled by the appearance or statements of the female. The defendant acts at his peril that the female may in fact be under the age of consent. The fact that the defendant cannot assert as a defense his bona fide belief in the victim s age does not make unconstitutional the statutes under consideration. Michael M. v. Superior Court of Sonoma County 450 U.S. 464, 465 (1981) The defendant was convicted of statutory rape under the California Penal Code He appealed his conviction on the grounds that the statute violated the Equal Protection Clause of the Fourteenth Amendment by defining unlawful sexual intercourse as an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years. Thus, the statute made men alone criminally liable. However, the Court overturned the California Supreme Court s ruling and upheld the statute as not being invidious, and instead found it realistically reflect[ed] the fact that the sexes are not similarly situated in certain circumstances. The Court recognized the state s interest in making the crime of statutory rape a strict liability offense, and held that California s interest of preventing teenage pregnancy to be a valid interest. Model Penal Code (Official Draft 1962) Section General Definitions In this Code, unless a different meaning plainly is required:... (9) element of an offense means (i) such conduct or (ii) such attendant circumstances or (iii) such a result of conduct as (a) is included in the description of the forbidden conduct in the definition of the offense; or (b) establishes the required kind of culpability; or (c) negatives an excuse or justification for such conduct; or (d) negatives a defense under the statute of limitations; or (e) establishes jurisdiction or venue;