CRM 321 Mod 5 Lecture Notes

Transcription

1 CRM 321 Mod 5 Lecture Notes In this module we will examine the worst of the crimes that can be committed - crimes against persons. Persons crimes are distinguished from so-called victimless crimes, crimes against the state, and property crimes as they involve harm, or the potential for harm, to a specific person as the victim. While a specific person may be the victim of a burglary (a property crime), it is not a persons crime because the victim suffered no physical harm (even though they may have suffered financial harm in damaged or lost property). It is important to note that crimes against persons do not have to actually result in physical harm or injury, but they are crimes in which physical harm may occur. For example, the physical harm is obvious in the case of a murder, but if there were a kidnapping in which the victim was not physically harmed or injured, it is still considered a persons crime. Murder is generally defined as an unlawful killing with malice aforethought, which is the mens rea element. While jurisdictions use the terms interchangeably, in the strictest legal sense, murder and homicide are not the same. A homicide is the killing of a human being - murder is the unlawful killing of a human being. Many unnatural deaths fall with the term homicide but not all equal murder. For example, there are justifiable homicides, such as self-defense; excusable homicides, such as an accidental death; and there are various types of criminal homicide short of murder such as manslaughter, vehicular homicide, etc. The elements of the crime of murder are generally: the act of killing, which is the actus reus, which may also include a failure to act that results in a death; purpose or knowledge, which is the mens rea element - the specific facts may determine type of murder; causation that the death resulted directly from the act; death; and attendant circumstances (if any). The most serious type of murder is first degree murder, also known as capital murder because it carries the death penalty in many jurisdictions. Generally, there are two types of first degree murder - Premeditated murder and Felony murder, which we will discuss shortly.

2 Premeditated murder is a specific intent crime, which also requires premeditation or deliberation. Premeditation not an elaborate plan or design - it is simply a time to reflect. The actus reus is any act that results in death, and could include shooting, stabbing, drowning, poisoning, strangulation, starvation, striking, etc. The act or method is most important in determining the degree of murder because first degree murder usually requires the act of killing to be heinous, atrocious, or cruel to sustain the death penalty. Second degree murder is defined as an unlawful killing of a human being without premeditation or deliberation. Second degree murder is not a capital crime in that, by its nature, it is lacking the heinous, atrocious, or cruel aspects of a capital crime. Second degree murder is sometimes known as depraved heart murder. Felony murder is charged when any death results from the commission of a felony and is normally the same crime as first degree murder and will carry the same penalties. However, some jurisdictions may have a crime known as second degree felony murder. There is no intent required for felony murder. If during a robbery, the victim is shot by the robber - that is felony murder. Another example would be the police arrive during the robbery and the police kill one of the two robbers; the surviving robber would be charged with felony murder for the death of his accomplice. Felony murder is extended to the act of fleeing from a felony; for example, the fleeing criminal is involved in a traffic accident in which another motorist or pedestrian is killed. That death would be charged as felony murder. There have even been successful prosecutions for felony murder where the victim of felony dies of a heart attack during or after the crime. Less serious crimes that result in a death are called manslaughter. There are two types and first we will look at voluntary manslaughter, which is sometimes known as a sudden killing. Voluntary manslaughter is normally the result of some type of provocation, as opposed to someone with the intent to kill. To reduce a crime from murder to manslaughter requires what is known in the law as adequate provocation, defined as provocation calculated to inflame the passion of a reasonable person, causing them to act on passion, not reason. While

3 reasonable or understandable provocation does not excuse the crime, it provides a reason for a lesser degree of criminal homicide than murder. Reasonable provocation has four recognized circumstances: mutual combat, assault/battery, trespass (of a home with threat to life), and adultery. A killing that is the result of heat of passion may also reduce a murder to voluntary manslaughter if the passion was the cause of the killing. The elements of heat of passion are reasonable provocation with no cooling off period; the law does not define how long this period is, but applies a reasonable person test. Provocation by words is generally not recognized as a reasonable provocation in manslaughter cases. The law does still recognize provocation by intimates which is based on the old common law paramour rule ; these are the classic heat of passion cases. The old common law rule was that the killing of an adulterous spouse or paramour was justifiable homicide. The modern rule is that such cases may provide the requisite provocation to reduce murder to manslaughter. Involuntary manslaughter is a lesser crime than voluntary manslaughter. Generally, there are two types and we will first discuss criminal negligence manslaughter. These are crimes where death is the result of criminal negligence such as vehicular homicide or reckless use of firearms. The second is unlawful act manslaughter wherein a death results from any criminal act, other than a felony or crime, where harm is intended. To illustrate modern rape law, let us review the Florida Sexual Battery Statute: Florida Statute defines "sexual battery" as the unlawful: oral, anal, or vaginal penetration by, or union with, the sexual organ of another; or the anal or vaginal penetration of another by any other object.

4 Different jurisdictions use different terminology for sex crimes, which may include sexual assault, sexual battery, rape, etc. As with the Florida law, most jurisdictions have elements that include unwanted sexual contact combined with force, (or threat of force, coercion, being unable to resist, etc.) for the crime of rape. In rape cases, while the most common scenario is a male perpetrator and a female victim, the perpetrator can be male or female, and victims can be male or female. And obviously there can be male on male and female on female rapes as well. Sex by force, or rape, is not a sexual act, but is a crime of violence. The old rule required proof of force and utmost resistance by the victim; in other words, victims had to prove they did not consent. Most jurisdictions have dropped any resistance requirement and apply the reasonable resistance rule which is an objective (or reasonable person) standard. In rape cases, the actus reus is the threat of force; actual force is not required. For a successful prosecution, the evidence must prove two types of fear - subjective fear (by the victim) and objective fear (threat by a weapon, verbal threats, etc.). There are, however, exceptions to the rule and physical force is not required in all cases. The exceptions include cases where the victim was intoxicated, had a mental deficiency, was physically incapacitated (drugged, unconscious, in a coma, paralyzed, etc.), consent was obtained through deception, or the victim was not of lawful age to consent. For the mens rea element, rape is a general intent crime in many jurisdictions, requiring only that the defendant intended to commit the act itself. Other jurisdictions may recognize specific intent, criminal negligence, recklessness, and strict liability to satisfy the criminal intent element.

5 As previously noted, someone who is not of lawful age cannot give consent to engage in sexual activity and those cases are known as statutory rape. It is generally defined as sex with a minor and force is not required as an element of the crime. Reasonable mistake of age is recognized as a defense in some jurisdictions. The law also recognizes other bodily injury crimes. One of the most common is the crime of battery, defined as an unlawful or harmful, non-consensual touching of a person. No actual harm or injury is required for the crime of battery. An attempted battery may result in the crime of assault if it is perceived by the victim. By law, an assault is an attempted or threatened battery, usually coupled with the ability to imminently carry out the threat. Therefore, threats of future harm, or conditional threats, do not constitute the crime of assault. There can be an assault and a battery in the same incident if all of the elements of each crime are present. An example would be making threats to the victim in person, followed by carrying out those threats and physically touching or harming the victim. Domestic violence crimes are really separate crimes; the domestic relationship of the suspect and victim can be an added element that serves to enhance certain crimes if committed upon certain persons assault, battery, stalking, rape. A conviction of a domestic violence misdemeanor crime may result in the loss of the defendant s Constitutional right to own or possess firearms under a federal law known as the Lautenberg Amendment. Unlike other disqualifications for firearm ownership under federal law, which usually comes from a felony conviction, there is no exception for a Lautenberg conviction. Stalking crimes are only a recent criminal offense with most laws coming into effect since the 1990s. Generally, stalking is the intentional imposition of fear in another by following, tormenting, or harassing the victim. The actus reus element such as following, tormenting, or

6 harassing - normally requires more than one incident to be considered the crime of stalking. Many jurisdictions requires these acts to be done repeatedly or constitute a course of conduct to be considered a crime. It is also sometimes required that there be the commission of certain other crimes i.e. threats. Stalking will sometimes criminalize otherwise lawful conduct such as calling on the phone, sending mail/packages, following a person. For the mens rea element, stalking is a specific intent crime and the result is the instilling fear in the victim. More recently, laws have been enacted to combat cyberstalking, which is the crime of stalking (instilling fear) by using the internet ( , social media), or some other electronic means (cell phone, pager). Generally there are two types of personal restraint crimes - kidnapping and false imprisonment. The common law elements of kidnapping are: seizing; carrying away (asportation); and confining by force, threat of force, fraud, or deception another person with the intent to deprive the person of their liberty. The actus reus of kidnapping is the criminal act of seizing and carrying away the victim. No minimum distance is required - for example, during a robbery of a store, the robber forces the victim to go into the back room that is only a few feet away - that is sufficient seizure and asportation for kidnapping. Kidnapping is a specific intent crime. False imprisonment is the unlawful deprivation of a person s liberty - there is no asportation required. The crime of false imprisonment may include the use of force or threatened force. As an example, during a domestic dispute, a boyfriend prevents his girlfriend from leaving the home by force - this could constitute the crime of false imprisonment.