Criminal Law

November 24, 2012 4:18 pm

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Criminal Law
I INTRODUCTION
Criminal Law, branch of law that defines crimes, establishes punishments, and regulates the investigation and prosecution of people accused of committing crimes. Criminal law includes both substantive law, which is addressed in this article, and criminal procedure, which regulates the implementation and enforcement of substantive criminal law.
Substantive criminal law defines crime and punishment—for example, what act constitutes murder or what punishment a murderer should receive. On the other hand, criminal procedure is concerned with the legal rules followed and the steps taken to investigate, apprehend, charge, prosecute, convict, and sentence to punishment individuals who violate substantive criminal law. For example, criminal procedure describes how a murder trial must be conducted.
This article discusses criminal law in the context of the common law system, which is found in countries such as England, Canada, and the United States. In the common law system, judges decide cases by referring to principles set forth in previous judicial decisions. Common law systems are typically contrasted with civil law systems, which are found in most Western European countries, much of Latin America and Africa, and parts of Asia. In civil law systems, judges decide cases by referring to statutes, which are enacted by legislatures and compiled in comprehensive books called codes.
In legal systems based on common law, criminal law is distinguished from what is known as civil law. In this context, the term civil law refers to the rules regulating private relationships, such as marriage, contracts, and personal injuries. In contrast, criminal law governs actions and relationships that are deemed to harm society as a whole.
II PURPOSE OF CRIMINAL LAW
Criminal law seeks to protect the public from harm by inflicting punishment upon those who have already done harm and by threatening with punishment those who are tempted to do harm. The harm that criminal law aims to prevent varies. It may be physical harm, death, or bodily injury to human beings; the loss of or damage to property; sexual immorality; danger to the government; disturbance of the public peace and order; or injury to the public health. Conduct that threatens to cause, but has not yet caused, a harmful result may be enough to constitute a crime. Thus, criminal law often strives to avoid harm by forbidding conduct that may lead to harmful results.
One purpose of both civil law and criminal law in the common law system is to respond to harmful acts committed by individuals. However, each type of law provides different responses. A person who is injured by the action of another may bring a civil lawsuit against the person who caused the harm. If the victim prevails, the civil law generally provides that the person who caused the injury must pay money damages to compensate for the harm suffered. A person who acts in a way that is considered harmful to society in general may be prosecuted by the government in a criminal case. If the individual is convicted (found guilty) of the crime, he or she will be punished under criminal law by either a fine, imprisonment, or death. In some cases, a person’s wrongful and harmful act can invoke both criminal and civil law responses.
III THEORIES OF CRIMINAL PUNISHMENT
Various theories have been advanced to justify or explain the goals of criminal punishment, including retribution, deterrence, restraint (or incapacitation), rehabilitation, and restoration. Sometimes punishment advances more than one of these goals. At other times, a punishment may promote one goal and conflict with another.
A Retribution
The theory of retribution holds that punishment is imposed on the blameworthy party in order for society to vent its anger toward and exact vengeance upon the criminal. Supporters of this theory look upon punishment not as a tool to deter future crime but as a device for ensuring that offenders pay for past misconduct.
B Deterrence
Those who support the deterrence theory believe that if punishment is imposed upon a person who has committed a crime, the pain inflicted will dissuade the offender (and others) from repeating the crime. When the theory refers to the specific offender who committed the crime, it is known as special deterrence. General deterrence describes the effect that punishment has when it serves as a public example or threat that deters people other than the initial offender from committing similar crimes.
C Restraint
Some believe that the goal of punishment is restraint. If a criminal is confined, executed, or otherwise incapacitated, such punishment will deny the criminal the ability or opportunity to commit further crimes that harm society.
D Rehabilitation
Another possible goal of criminal punishment is rehabilitation of the offender. Supporters of rehabilitation seek to prevent crime by providing offenders with the education and treatment necessary to eliminate criminal tendencies, as well as the skills to become productive members of society.
E Restoration
The theory of restoration takes a victim-oriented approach to crime that emphasizes restitution (compensation) for victims. Rather than focus on the punishment of criminals, supporters of this theory advocate restoring the victim and creating constructive roles for victims in the criminal justice process. For example, relatives of a murder victim may be encouraged to testify about the impact of the death when the murderer is sentenced by the court. Promoters of this theory believe that such victim involvement in the process helps repair the harm caused by crime and facilitates community reconciliation.
F Conflicts Among Goals
The various justifications for criminal punishment are not mutually exclusive. A particular punishment may advance several goals at the same time. A term of imprisonment, for example, may serve to incapacitate the offender, deter others in society from committing similar acts, and, at the same time, provide an opportunity for rehabilitative treatment for the offender. On the other hand, the goals of punishment may at times conflict. The retributive and deterrence theories call for the infliction of unpleasant experiences upon the criminal, including harsh prison treatment; but the prison environment may not be conducive to, or may even defeat, rehabilitation.
No one theory of punishment addresses all the goals of criminal law. A combination of theories and goals plays a part in the thinking of the legislators who establish the ranges of punishment for various crimes, the judges and jurors who sentence offenders within these ranges, and the parole authorities who have the power to release certain prisoners.
IV CLASSIFICATION OF CRIMES
Crimes are classified in many different ways: common law crimes versus statutory crimes, and crimes that are mala in se (evil in themselves) versus those that are mala prohibita (criminal only because the law says so). An important classification is the division of crimes into felonies or misdemeanors. This distinction is based on the severity of the crime and is rooted in common law.
In many jurisdictions in the United States, felonies are crimes punishable by death or imprisonment in a state prison or penitentiary and misdemeanors are those punishable by fine or imprisonment in a local jail. (The term jurisdiction refers to the authority of a political entity, such as a state or a county, or the territory over which that authority is exercised.) In other jurisdictions, crimes punishable by imprisonment for one year or more are felonies, and those punishable by fine or imprisonment for less than one year are misdemeanors. Since each jurisdiction determines the penalties for offenses it defines, a misdemeanor in one jurisdiction may constitute a felony in another. Some jurisdictions have an additional classification for petty offenses, also called infractions, which are usually punishable by a small fine.
V CRIMINAL LAW IN THE UNITED STATES
The English colonists who came to North America in the 1600s brought their legal traditions with them. After the American Revolution (1775-1783), the English common law remained as the basis of law in the United States. Although U.S. law is rooted in the English common law tradition, it has evolved in distinctive ways to meet the needs and requirements of U.S. society. In the area of criminal law, the common law provided the basis for defining criminal behavior; however, written statutes have been adopted that either modify these definitions or provide new ones. Thus, almost all criminal prosecutions today are based on criminal laws defined by statute rather than by the common law.
A Common Law Origins
The common law began developing in England a millennium or more ago. Until the mid-17th century, the English Parliament (legislature) did not convene regularly. As a result, judges rather than legislators often created, defined, and meted out punishment for crimes. Many of the crimes thus created—called common law crimes, as distinguished from statutory crimes—still influence the definition of crime in England and the United States. Among the major common law crimes are murder and manslaughter, mayhem, rape, larceny, robbery, burglary, and arson (all common law felonies) and assault and battery, perjury, forgery, bribery, and conspiracy (all common law misdemeanors). Even in the early days, however, gaps sometimes appeared in the network of judge-made criminal law, and the legislature enacted statutes to fill the gaps in the common law definition of crimes.
B Statutory Crimes
Although the common law provides the basis for defining crimes, federal and state legislatures have enacted statutes that specifically define the elements (parts) of a crime. For example, common law judges defined rape as sexual intercourse by a man with a woman who was not his wife, against her will and through the use or threat of force. Some modern statutes have modified the elements of the common law crime of rape. For example, under some statutes the victim can be either male or female, and a husband can be found guilty of raping his wife. In modern times, both in England and the United States, legislatures have almost completely taken over the task of defining crimes. Judges seldom, if ever, create new definitions of crime, although in England and in many states of the United States they theoretically still have that power.
Until the late 18th century the common law predominated in defining crimes, and there were relatively few—no more than 20 or 30. Today, statutes specify hundreds of crimes in England and in the United States. Matters that judges three centuries ago never even thought about—such as carjacking, bribing college athletes, and making false statements in connection with the registration of stocks and bonds—have been classified by legislatures as new statutory crimes.
Although the trend is to add new crimes by statute, to a lesser extent there is a tendency for some crimes of one era to disappear in the next. For example, jurisdictions that once punished witchcraft by death no longer recognize it as a crime at all. Other crimes once prevalent in common law jurisdictions—such as adultery, fornication, sodomy, and blasphemy—have been eliminated by many legislatures. These activities are often ignored by law enforcement officials in jurisdictions where they remain crimes.
C Lawmaking Authority
The United States has a federal system of government, meaning that power is divided between a central authority and many regional authorities (Federalism). Consequently the power to make law, including criminal law, is divided between the national government and the governments of the 50 states. Local governments also have the authority to enact laws.
The federal government derives its legislative power from the Constitution of the United States. The Constitution gives the federal government authority over certain limited subjects, such as the power to tax, to regulate interstate commerce, to declare war, and to regulate the mail. These powers include an implied authority to define some crimes. For example, the taxation power includes the authority to make it a crime to fail to file an income-tax return or to understate income in a return that is filed. The authority over mail includes the implied power to make it a crime to use the mail to defraud (cheat by deception) or to distribute obscene publications.
The Constitution also explicitly grants power to define criminal behavior. For example, it gives the federal government the authority to punish counterfeiting, treason, and felonies committed on the high seas (such as piracy) and to govern land areas in the United States devoted to federal uses, such as military bases and national parks. The federal government may also protect itself from harm. Thus it has defined as crimes sedition (inciting dissatisfaction with government), bribery of federal officials, and perjury (providing false testimony) in federal courts. In federal territories, the federal government has substantial power over criminal matters, a power similar to that retained by states within their own borders.
The states retain broad power to make law, including criminal law, over matters not delegated by the U.S. Constitution to the federal government or specifically denied to the states. In fact, the states have primary responsibility for defining and enforcing criminal law. The vast majority of all criminal prosecutions take place in state courts under state criminal codes. Each state, within its own territory, has so-called police powers to make and enforce such laws as it deems necessary or appropriate for promoting the public health, safety, morals, or welfare.
VI ELEMENTS OF A CRIME
Certain elements, or factors, must coexist in order for behavior to constitute a crime. To be guilty of a crime, a person must commit an act. Criminal liability is not imposed for thoughts without action. The person acting must be doing so intentionally—that is, his or her conduct must not be accidental or involuntary.
A The Wrongful Act
To be guilty of a crime, a person must either have performed a voluntary physical act or failed to act when he or she had a legal duty to do so. In other words, there is no criminal liability for bad thoughts alone. Thus, a child may earnestly wish a parent dead and may even think about killing the parent. But even if the parent should coincidentally die, the child is not a murderer, provided that he or she took no action to bring about the parent’s death.
Most crimes are committed by a specific action—for example, the pulling of a trigger or the thrusting of a knife in murder, or the lighting of a fire in arson. Some crimes, however, are defined in terms of omission or failure to act. For example, it is a crime not to file an income tax return. A person who has a special relationship with another or has voluntarily assumed a duty to help another may be guilty of a crime if he or she fails to act. For example, a parent is obligated to rescue his or her child from danger and a lifeguard on duty must attempt to rescue a drowning swimmer if it is physically possible for the parent or lifeguard to do so. Although the duty to rescue a person who is in danger is limited, parents owe a duty to their young children and lifeguards to swimmers in their charge.
B Mental Fault
To be guilty of a crime, the person must also have had the intent to act in a harmful way. This element is sometimes called the requirement of mental fault or mens rea, a Latin term that means “guilty mind.” Thus, many crimes are defined in terms of intentionally, knowingly, maliciously, willfully, recklessly, or negligently acting or bringing about a result, or of conducting oneself with intent to accomplish a specified consequence. The mens rea requirement distinguishes between inadvertent or accidental acts and acts for which a person is criminally liable.
Generally, a person must have intended the actual harm that in fact resulted—that is, there is no criminal liability unless the criminal act and the required intent concur. Thus it is not murder if a man desires to kill his brother and, while driving to the store to purchase a gun for this purpose, accidentally runs over and kills his brother who happens to be crossing the street. On the other hand, if one intends harm to a particular person or object and, in attempting to carry out that intent, causes a similar harm to another person or object, one’s intent will be transferred from the target person or object to the person or object actually harmed. For example, if a woman shoots at a man with the intent to kill him but, due to poor aim, misses the man and hits and kills a child nearby, the shooter’s intent to kill the man is transferred to the child and the woman is liable for the child’s murder.
In recent years, there has been a tendency to depart from the basic premise of criminal law requiring a specific mental state (intent) and to define statutory crimes providing for criminal liability without intent to cause harm. In the case of these so-called strict-liability offenses, the offender’s mental state is irrelevant. Laws against serving alcohol to minors or against mislabeling food and drug products are typical examples of strict-liability statutes.
VII DEFENSES TO CRIMES
Defense is a broad term that refers to numerous claims that serve to rebut (refute), mitigate (moderate), justify, or excuse conduct that the state has labeled criminal. Some defenses are factual. For example, an accused person may offer an alibi that demonstrates that he or she was not present at the crime scene at the time the crime occurred. Other defenses, such as insanity, acknowledge that the accused committed the crime but assert that he or she should not be held responsible. Some defenses serve to explain the circumstances of the action and negate criminal liability. For example, if a person kills another in self-defense, the law provides that the prohibited act was justified and not appropriate for punishment.
A Insanity
The defense of insanity is based on the premise that those who are unable to control their actions or appreciate the criminality of their actions due to mental defect or illness should not be punished under criminal law. The insanity defense is a legal test of criminal responsibility and does not strictly conform to the medical definition of mental illness. Although a great deal of publicity is usually generated when it is invoked, the insanity defense is rarely used and infrequently successful.
Beginning in the mid-19th century, the test of insanity applied in England and much of the United States was known as the M’Naghten rule. This test was derived from the English case of Daniel M’Naghten, who was tried for murder in 1843. M’Naghten was judged not guilty because he suffered from a mental illness that prevented him from understanding whether his actions were right or wrong. The M’Naghten rule permits the defense of insanity for criminal defendants who, as a result of mental illness at the time of the criminal act, did not know the nature or the wrongfulness of their actions. The M’Naghten test requires evidence of mental defect that impaired the defendant’s ability to distinguish between right and wrong.
Some jurisdictions have supplemented the M’Naghten rule with the irresistible impulse test. Under this standard, an accused can be found not guilty by reason of insanity if a mental defect or disease rendered him or her incapable of refraining from a criminal act.
Another form of the insanity defense merges and modernizes the M’Naghten and irresistible impulse tests. Jurisdictions that have adopted this standard permit the defense of insanity if the defendant at the time of the criminal act, as a result of mental defect or disease, lacked substantial capacity either to appreciate the criminality (wrongfulness) of the conduct or to conform his or her conduct to the requirements of law.
Some jurisdictions recognize a defense of diminished capacity or diminished responsibility. Under this defense, a person accused of a crime may assert that as a result of a mental defect short of insanity, he or she did not have the requisite mental fault for the crime charged. Evidence of the accused person’s diminished capacity may reduce the severity of the crime charged or of the sentence imposed upon conviction.
B Age
A perpetrator’s youth has long been a defense to criminal charges because children are deemed incapable of making rational decisions for which they should be held accountable. Under the common law, a child under 7 years of age is deemed too young to be criminally responsible. A child between the ages of 7 and 14 cannot be convicted of crime without proof that he or she knows the difference between right and wrong. A child 14 years of age or older is deemed sufficiently mature to be criminally responsible in most circumstances.
Many jurisdictions have abandoned these arbitrary common law categories and have enacted statutes describing juvenile crime. Under these statutes children under a specified age (which varies from state to state) who commit crimes are considered guilty of delinquency rather than a criminal act, based on the theory that children need help more than punishment. Some statutes, however, allow for youths to be tried as adults for serious crimes, such as murder, rape, and armed robbery.
C Intoxication
Intoxication, whether caused by alcohol, illegal drugs, or prescribed medications, may produce a state of mind resembling insanity. An intoxicated offender often cannot distinguish right from wrong or may have an irresistible impulse. For intoxication to be used as a defense against a crime, it must be involuntary (for example, if one is forced to consume an intoxicant, or if one consumes an intoxicant without knowledge of its mentally disabling nature).
D Duress
A person who commits a crime because another is exerting extreme influence or pressure upon them may have the defense of duress (also known as coercion). Most jurisdictions allow the defense of duress only when (1) the pressure exerted is immediate and substantial, such as the threat of death or serious bodily harm; (2) the coercion is such that a reasonable person in the offender’s position would have committed the crime; and (3) the offender did not willingly participate in creating a situation where coercion was likely. For example, if a woman kills a man because another person who is armed threatens to kill her if she does not, she would have the defense of duress to any charge of murder.
E Mistake
Mistake of fact constitutes a defense to criminal liability if it can be shown that, owing to the mistake, the accused person lacked the mental fault required to commit the crime in question. If a person takes another’s coat, mistakenly believing that it is his or her own coat, this mistake negates the intent to steal that is required for the crime of larceny. On the other hand, if a person, with the intent to steal, takes another’s coat mistakenly believing that the coat belongs to a third person, this mistake does not negate the person’s intent to steal, and he or she is guilty of larceny. In certain instances a crime is committed even if the perpetrator made a mistake that negates his or her intent to commit a crime. For example, a person who has sexual intercourse with a minor (a person who is under a certain age specified by statute) can be found guilty of statutory rape even if he or she honestly believed that the other person was older.
The general rule is that ignorance or mistake of criminal law is not a defense to criminal liability. Therefore, if a person engages in a criminal act without knowing that the act is illegal, the mistake is no defense to criminal liability. This rule applies even if the mistake is based on the advice of a lawyer, because a contrary rule would encourage ignorance of the law. Some courts, however, recognize the defense of ignorance if the accused person (1) acted in reasonable, good-faith reliance upon a statute or judicial decision that is subsequently held to be invalid; or (2) reasonably relied upon an erroneous interpretation or statement of law provided by a public official legally responsible for the interpretation, administration, or enforcement of the law.
F Self-Defense
As a general rule, the law provides a defense for actions that reasonably appear necessary to protect oneself from the imminent (immediate) use of unlawful force. For example, a person is justified in the use of deadly force in self-defense if he or she reasonably believes that deadly force is necessary to prevent an act that would cause immediate death or serious bodily injury to himself or herself. If acting in self-defense, one may respond only with force proportional to the force defended against or necessary to resist the unlawful attack. Thus, one may not use deadly force except in response to deadly force. One who has initiated or provoked an attack generally may not claim self-defense.
G Entrapment
A person who is induced by the police to commit a crime that he or she would not have otherwise undertaken can claim the defense of entrapment. To prove the defense, the person must show that the idea for committing the crime originated with a law enforcement agent, that the agent persuaded him or her to commit the crime, and that he or she was not predisposed to commit such a crime. A person cannot successfully claim the defense of entrapment if the police officer merely furnishes the person with a favorable opportunity to commit crime—for example, by pretending to be intoxicated in order to catch a pickpocket who has been targeting drunk individuals.
VIII PARTIES TO A CRIME
Criminal law distinguishes levels of responsibility based on the individual’s degree of involvement in the crime. A person who enters the bank, aims a gun at the teller, and asks for all the money is classified differently than the person who later hides the bank robber from the police. The common law identifies four basic types of parties to criminal conduct: (1) a principal in the first degree, (2) a principal in the second degree, (3) an accessory before the fact, and (4) an accessory after the fact.
A Principals
A principal in the first degree is a person who, with the requisite intent, actually engages in the criminal act that causes the harm. A principal in the second degree is a party who aids, counsels, enables, or commands the principal in the first degree in the commission of the crime and is present at the time of the crime. A person who is not at the immediate crime scene may, nonetheless, be a principal in the second degree if he or she is considered constructively present—for example, by being close enough to render assistance in the commission of the crime. For example, the driver of a getaway car might be constructively present and therefore a principal in the second degree.
B Accessories
An accessory before the fact is a party who aids or abets a crime or insists that a specified crime be committed but is not present at the scene at the time of the crime. Accessories before the fact or principals in the second degree are as responsible for the crime in question as the one who actually does the forbidden act. They are also responsible for any other crimes committed in the course of the commission of the crime in which they are involved, as long as the additional crimes were foreseeable.
An accessory after the fact is a party who, though not present at the commission of the crime, aids, receives, or comforts a wrongdoer, knowing that he or she has committed a crime, in order to help the wrongdoer avoid capture, conviction, or punishment. The assistance could be in the form of facilitating escape or destroying evidence of the crime.
IX CRIMES AGAINST THE PERSON
Crimes that physically or psychologically injure individuals are described as crimes against the person. These include murder, manslaughter, assault, battery, mayhem, rape, and kidnapping.
A Murder
The crime of murder is loosely defined as the unlawful killing of a human being by a person who had an intent to kill. It requires, first of all, that a living person be killed. Some jurisdictions still follow the common law rule that for a murder to exist, death must occur within a year and a day after the accused inflicted the fatal wound.
The traditional definition of murder required the murderer to possess a certain intent, known as malice aforethought. No actual hatred, ill will, or spite is required. Under judicial definitions and some statutes, malice aforethought is present under any of the following conditions:
(1) A person intends to kill another, without justification or excuse, and succeeds in doing so. In some jurisdictions, the intent to kill may be inferred from a person’s intentional use of a deadly weapon against another.
(2) A person intends to inflict upon another a serious injury short of death, but instead brings about an unintended death.
(3) A person acts in an extremely reckless way that demonstrates a “depraved heart” (moral corruption) or “callous indifference” to the value of human life and, without intending to do so, thereby causes another’s death. An example of this so-called depraved-heart murder would be if a person shot a gun into a crowd of people, killing an innocent bystander.
(4) A person causes another’s death during the course of committing a felony, and the death was the foreseeable result of the felonious act. Such a killing is known as felony murder. Any accomplice in the commission of the felony might also be guilty of murder. Thus, a robber whose gun accidentally goes off during a robbery and kills the robbery victim is guilty of murder, even though the robber did not intend to kill or do serious injury and this act was not so reckless as to evince a depraved heart. The accused must be found guilty of the underlying felony (in this example, robbery) to be held accountable for the felony murder.
B Manslaughter
Manslaughter is sometimes loosely defined as the unlawful killing of another without malice aforethought. It is generally divided into two branches: voluntary manslaughter and involuntary manslaughter. In some jurisdictions, manslaughter, like murder, is divided into degrees so that what one state calls voluntary manslaughter another calls first-degree manslaughter.
B1 Voluntary Manslaughter
Voluntary manslaughter generally involves an intentional killing of a human being by an enraged person under circumstances that would cause a reasonable person to become uncontrollably angry. For example, an intentional killing might be considered voluntary manslaughter (rather than murder) if it is committed in the heat of passion caused by adequate provocation. A common provocation is the discovery of the killer’s spouse in the act of having sex with another. If the provocation would arouse extreme rage in a reasonable person, but the killer was not, in fact, enraged when the killing occurred, the killer is guilty of murder rather than voluntary manslaughter.
B2 Involuntary Manslaughter
Generally deemed a less serious crime than voluntary manslaughter, involuntary manslaughter involves unintended killings that do, however, involve some degree of fault. Reckless manslaughter, a counterpart of depraved-heart murder, exists when a person acts in a reckless or wanton manner and thereby causes the death of another person. Accidentally hitting and killing a pedestrian while driving a car recklessly or accidentally shooting someone to death while carelessly handling a revolver are examples of this type of involuntary manslaughter. Misdemeanor manslaughter, a counterpart of felony murder, exists when death occurs during the commission of a misdemeanor—such as when a person runs a red light, hitting and killing a pedestrian crossing the street.
C Assault and Battery
Assault and battery are actually two separate common law crimes, although the words are often used interchangeably and run together as a single expression. They differ from murder and manslaughter primarily in that the victim is not killed. Statutes commonly prescribe greater punishment for so-called aggravated assaults and batteries than for simple assaults and batteries. Thus, assault and battery with a deadly weapon or with intent to commit some other crime, such as rape, are commonly punishable as felonies, while simple assault and battery are considered misdemeanors.
An assault is defined as an unlawful attempt to inflict bodily injury upon another, or the threat to do so coupled with the ability to immediately carry out the threat. An assault can be committed even though the offender does not actually touch, strike, or do bodily harm to another person. In some jurisdictions, it is an assault for one person to give another person reason to fear or expect immediate bodily harm—for example, if a woman threatens a man with a gun that she knows but he does not know is unloaded.
If an assault results in physical contact, a battery has occurred. Battery occurs when a person unlawfully applies force to another human being. Any objectionable touching, even if it does not involve physical pain, may constitute battery. The force may be caused by a fist, weapon, stick, rock, or some other instrument.
The common law crime of mayhem—a term derived from the word maim—is an aggravated battery. In its original definition, mayhem occurred when a person intentionally and maliciously deprived the victim of a part of the body—such as an arm, hand, finger, leg, foot, or eye—without which the victim was less able to fight in the service of the king. Today the statutory crime of mayhem generally covers serious and permanent disfiguring injuries—such as slitting the lips, ears, tongue, or nose—as well as disabling injuries. Some statutes require a specific intent to cause the injury suffered by the victim.
D Forcible and Statutory Rape
The common law felony of rape referred to forcible rape. It was defined as unlawful sexual intercourse with a woman by a man who was not her husband, without the woman’s consent. Rape can occur when the woman’s resistance is overcome either by force or by the threat of death or serious bodily harm. Sexual intercourse with a woman who is unconscious or so intoxicated, drugged, or mentally incompetent as to be incapable of granting effective consent may also constitute rape. Some modern statutes define rape to include forced sex by a husband with his wife.
Statutory rape is the term generally used to describe the crime of sexual intercourse by a man with a woman who is not his wife and who is below an age specified by statute. It is a crime whether or not the woman gives her consent. This crime is based on the premise that people below a certain age, known as minors, are incapable of making an informed, intelligent decision to consent to sexual intercourse. Consequently, even if the man reasonably believes the woman is over the age of consent (which varies among jurisdictions) or the woman lies about her age, the man is generally liable for the offense.
Some states have rewritten their forcible and statutory rape laws to make them gender neutral. Under these modern statutes a male can be considered a victim of rape—either at the hands of a woman or another man.
E Kidnapping
A felony in all jurisdictions, kidnapping generally involves the seizure, confinement, and, perhaps, the carrying away of another by force (or threat of force) against his or her will. It does not apply to those acting under the authority of the law. An aggravated form of kidnapping occurs if the purpose of the act is to (1) obtain ransom or reward; (2) use the victim as a shield or hostage; (3) facilitate the commission of another offense, such as robbery or rape; or (4) terrorize or inflict bodily injury on the victim. In the United States, a federal statute known as the Lindbergh Act makes it a federal felony to transport a kidnapped person across a state line. This law was adopted after the son of American aviator Charles Lindbergh was kidnapped and killed in 1932.
X CRIMES AGAINST PROPERTY
Another major category of crimes concerns actions that affect another’s property—either real or personal. Real property consists of land and structures attached to it, as well as the products of land before they are removed, such as growing crops, trees, and unmined minerals. Personal property refers to personal belongings such as money, jewelry, and clothing.
Most jurisdictions have adopted statutes that modify the common law definitions of certain property crimes. For example, in some states the common law crimes of larceny, embezzlement, and false pretenses have been consolidated into a single crime known as theft.
A Larceny
The common law definition of the crime of larceny includes the following elements: (1) The thief must take possession of the property (that is, secure control over the property) from another. (2) The thief must move or carry away the property, although a slight movement is enough, such as the removal of a wallet from another’s pocket. (3) There must be a trespass in the taking—that is, the thief must take possession of the property without consent from the rightful possessor. (4) The property must be tangible personal property, such as money, jewelry, or clothing. Under common law larceny does not apply to real property or intangible personal property, such as checks, promissory notes, or other documents that are regarded as evidence of property rather than as property itself. (5) The property must be taken from the possession of another who had a right of possession superior to any right of the accused. It is not necessary, however, that a person steal directly from the owner. (6) There must be an intent to steal—more accurately expressed as an intent to permanently deprive the person from whom the property is taken of possession of or interest in the property. It is not larceny to take another person’s property that one honestly believes one owns. It is not larceny to borrow property, intending to return it promptly. A notable exception is the temporary, unauthorized taking of a car, which commonly constitutes the crime of joyriding.
By statute, larceny is often divided into two degrees: grand larceny and petit larceny. The line between the two depends upon the value of the property stolen. Grand larceny is commonly a felony, while petit larceny is a misdemeanor.
B Embezzlement
In general, embezzlement occurs when a person who has lawful possession of another’s money or property fraudulently converts that money or property. In other words, the wrongdoer, often an employee, trustee, fiduciary, or agent, acquires possession of the property lawfully and then converts the property to his or her own use. The principal distinction between embezzlement and larceny is that in instances of embezzlement, the property is already in the embezzler’s possession. In instances of larceny, the property is in another’s possession. A less important distinction is that larceny requires only a slight movement of the property, but embezzlement requires a conversion of the property—such as the sale of embezzled property or the spending of embezzled money.
For a conversion to constitute embezzlement, the wrongdoer must intend to defraud the rightful owner of the property. Innocent conversions do not qualify, as when a person honestly believes he or she has a right to convert another’s property.
C False Pretenses
Theft by false pretenses occurs when a person obtains title to the property of another by knowingly making false representations, either spoken or written, with the intent to defraud the victim. The misrepresentation must be of present or past material fact and not opinion, prediction, or false promise. The crime also requires that the victim give the property to the defendant as a result of being deceived by or of relying upon the misrepresentation. The defendant must obtain title to the property, not mere possession without title, in order to be guilty of false pretenses. Historically, obtaining custody or possession of property (rather than title) by false statements was a form of larceny known as larceny by trick.
D Robbery
Robbery is a form of aggravated larceny. It can be viewed as a combination of assault or battery, plus larceny. All the elements of larceny are required—the trespassing and taking and moving of money or property from another without consent and with the intent to permanently deprive that person of the money or property—plus two additional requirements. First, there must be violence or threat of immediate violence. Second, the taking must be from the victim or in the victim’s presence.
For example, it is robbery to take another’s property, including money, from the victim at gunpoint or to knock the victim unconscious and then take his or her property. The property taken must be on the victim or so near the victim that, if not for the violence or threat of violence, the victim could have prevented its taking. For purposes of imposing punishment, most jurisdictions draw a distinction between simple robbery, where the victim is intimidated into handing over property, and armed (or aggravated) robbery, which is robbery with a dangerous weapon.
E Extortion
Extortion (or blackmail) differs from robbery in that the threats, stated or implied, that cause the victim to give money or property to the offender are not threats of immediate violence but rather threats of future harm. The intimidation might involve violence—for example, a threat to kill or injure the victim or a member of the victim’s family. Alternatively, the intimidation might consist of a threat to accuse the victim of a crime or to reveal a devastating secret about the victim.
F Receiving Stolen Property
Buying or receiving property that is known to have been stolen by another person is a crime. Receiving means to take under control. Stolen property is property that has been taken by larceny or, in some jurisdictions, property obtained by embezzlement or false pretenses. Under the common law definition of this crime, the receiver must be certain or almost certain—in other words, be more than merely suspicious—that the property is stolen. Proof of the purchaser’s knowledge may be inferred from circumstances, such as time and place of delivery. For example, if a man purchases a discounted stereo from an individual selling home electronics out of a van parked in an alley at midnight, these circumstances may contribute to a finding that the purchaser had sufficient reason to know the property was stolen.
G Forgery
A person commits forgery if he or she makes a false writing or materially alters a genuine writing that either has legal significance or is commonly relied upon in business transactions. A writing includes handwriting, printing, typewriting, or engraving. A painting, for instance, does not qualify as a writing. To be guilty of forgery, the person must intend to defraud someone by his or her action. Unlike the property crimes considered above, there is no requirement that any victim lose property or money. It is enough that the forger makes the false writing with the fraudulent intent. Examples of documents with legal significance are a check, promissory note, stock certificate, bond, deed, mortgage, will, and contract. Examples of documents used in business are an invoice and a letter of recommendation. The forger’s act often consists of signing the name of a real or fictitious person (not the forger’s own name), filling in a blank, or materially altering what is already written.
The crime of uttering a forged instrument consists of offering a forged document as true and genuine, knowing it to be a forgery, with an intent to defraud. Thus, a person who did not actually commit the forgery may be guilty of uttering.
XI CRIMES AGAINST THE HABITATION
The two common law felonies of arson and burglary are crimes against property, but they also often involve physical danger to the victim, and so they may be classified separately from other property crimes. The common law definitions limited these crimes to dwelling houses—that is, buildings in which people lived. Modern statutes generally extend their coverage to other buildings, such as barns, warehouses, churches, stores, and garages, as well as some nonbuildings such as railroad cars and boats. Some arson statutes cover all forms of personal property.
A Arson
The common law definition of arson is the malicious and voluntary burning of the dwelling house of another. The phrase of another means in the possession of another. Therefore, a landlord can be guilty of arson of his or her own house that is leased to a tenant. A dwelling house is a house where people customarily sleep, although no person need be in the house at the time of the burning. The term may include outbuildings associated with the house, such as barns and stables, especially where they are enclosed with the house by a common hedge, fence, or wall.
Malicious and voluntary means that the arsonist must intentionally, or perhaps recklessly, burn the house. No malice in the literal sense of ill will is required. The house need not be entirely or even largely destroyed. The burning of a small portion of the house, such as a part of the floor, wall, or door is sufficient. However, more than a blackening by smoke or scorching of the wood is necessary to constitute arson.
Modern statutes have generally altered the common law definition of arson in two ways. They provide that the burning of property other than dwelling houses and the burning of one’s own property to defraud an insurance company also constitute arson.
B Burglary
The common law definition of burglary is breaking and entering the dwelling house of another in the nighttime with the intent to commit a felony therein. The requirement of breaking is satisfied by forcing open a locked door or window, by opening a closed but unlocked door or window, or even by opening wider a partly closed door or window to obtain entry. If the person had the resident’s consent to enter, then the use of force to gain entry is not a breaking. Entering is satisfied by a person’s passing entirely through the door, window, or other opening by putting any portion of the body through or even by holding a pole or other item through the opening while angling for some property inside.
A dwelling house includes outbuildings in the area surrounding a house. To be the subject of burglary, the structure must be the dwelling of someone other than the accused person. The intended felony is usually grand larceny, but it may be murder, rape, arson, or one of the other felonies. A person has the required intent to commit a felony if he or she intends to steal whatever can be found, even if in fact there is nothing of value in the dwelling. A person is guilty of burglary even if arrested before he or she can commit the felony, as burglary is complete upon breaking and entering with the requisite intent.
Modern statutes have enlarged the scope of the common law definition of burglary in various ways. They sometimes eliminate the requirement of a breaking, so that an entry without a breaking may still constitute burglary. Some statutes consider gaining entry by means of fraud, threat, or intimidation to be constructive breaking—that is, the legal equivalent of forceful breaking. Modern statutes also typically provide that breaking into certain nonbuildings—such as railroad cars, automobiles, and boats—constitutes burglary. Most modern statutes have abandoned the requirement that the breaking and entering occur at night. Finally, some statutes provide that a person commits burglary if he or she has an intention to commit a misdemeanor—rather than an intention to commit a felony—after breaking and entering.
XII CRIMES AGAINST SEXUAL MORALITY
A number of crimes involve sexual conduct. Rape, which has already been discussed as a crime against the person, is sometimes classified among these crimes. Fornication and adultery, in jurisdictions where these are crimes, are generally misdemeanors rather than felonies. Sodomy, incest, and bigamy are generally classified as felonies. Prostitution is probably the most common crime involving sex. There has been a modern trend in the United States to eliminate or restrict the scope of criminal statutes regulating sexual conduct, especially sexual activities among consenting adults.
A Fornication
Unmarried people who have sexual intercourse or who cohabitate (live together as sexual partners) commit fornication. In the few jurisdictions that retain this as a crime, it is generally unenforced or prosecution is rare.
B Adultery
Any married person who cohabits or has sexual intercourse with another person who is not his or her spouse has committed adultery, which is a crime in some but not all jurisdictions. A single act of adultery is not commonly punished. However, people who repeatedly commit adultery or publicize the fact may be prosecuted. Adultery means different things in different jurisdictions. In some, if only one of the two parties is married, the married person alone is guilty. In others, both parties are guilty even though only one party is married.
C Sodomy
The crime of sodomy encompasses a variety of sexual acts. Sodomy may be committed by human partners of either the same or opposite sex, or between a human and an animal (bestiality). It may be done either by force, in which case the coerced party is considered a victim rather than an offender, or with consent. One type of sodomy involves the penetration of the male sex organ into the anal opening or the mouth of a man or woman. In some jurisdictions, oral stimulation of the female sex organ also constitutes sodomy. Some jurisdictions also define as sodomy sexual relations between members of the same sex (homosexuality), sexual contact with a corpse (necrophilia), and bestiality.
D Incest
The statutory crime of incest consists of either cohabitation or sexual intercourse between closely related persons, such as between parent and child or between siblings. Jurisdictions vary in their definition of what degree of relationship constitutes incest—for example, whether sex between first cousins or step-relatives is criminal. Many jurisdictions restrict the crime to acts between blood relatives—that is, people who are related by birth rather than marriage.
E Bigamy
A person who willfully and knowingly enters into a marriage before a prior marriage has been legally terminated by divorce, annulment, or death of the spouse commits the crime of bigamy. In a common exception, it is not bigamy for a person to remarry if his or her spouse has been missing for a specific number of years (often seven) and is not known by the person to be alive.
F Prostitution
The crime of prostitution involves the exchange of sexual contact or favors for money or its equivalent. The crime of pandering involves the promotion of prostitution by enticing or procuring persons to engage in prostitution. Securing customers for prostitutes constitutes the crime of procuring. Managing the activities and contacts of prostitutes is a crime known as pimping. The terms pandering, procuring, and pimping are often used interchangeably.
XIII CRIMES AGAINST THE GOVERNMENT
A government has the authority to protect itself against injury and destruction and to protect its administrative functions from corruption. To promote these objectives, it may define certain activities, such as treason, perjury, and bribery, as criminal.
A Treason
The crime of treason consists of attempting by overt acts to overthrow or levy war against the government, to adhere (devote) oneself to the enemies of the government, or to give aid and comfort to the enemy. To be guilty of treason, the person must intend to betray the government to which he or she owes allegiance.
B Perjury
A common law misdemeanor, perjury is now generally classified as a statutory felony. Perjury is defined as willfully giving a false statement while under oath concerning a material matter in a judicial proceeding. A statement is material if it could have influenced the outcome of the proceeding in which it was given. For example, a witness to an automobile accident who lies under oath about her age is not guilty of perjury because the false statement does not concern a relevant issue. However, an alleged victim of statutory rape commits perjury if she falsely testifies that at the time of the intercourse she was over the statutory age of consent. The age of the victim is a core issue in a statutory rape prosecution.
People swear falsely when they tell what they know to be a falsehood or even what they believe to be a falsehood (even if it is in fact true). It is not swearing falsely, however, to tell what is in fact false when the witness honestly believes it to be true. Modern statutes have generally expanded perjury to include proceedings other than judicial proceedings, such as congressional hearings and proceedings before a notary public.
The crime of intentionally causing or encouraging another person to commit perjury is known as subornation of perjury. If the other person erroneously believes his or her testimony to be true and thus does not commit perjury, the person who encouraged the perjury is not guilty of subornation of perjury.
C Bribery
A common law misdemeanor, bribery is now generally classified as a statutory felony. Bribery is defined as giving or promising to give a public official something of value with a corrupt intent to influence the official in the discharge of his or her official duty. The public official who solicits or accepts anything of value or a promise of something valuable, accompanied by a corrupt intent to influence the performance of his or her public duty, also commits bribery.
The common law definition limited bribery to conduct concerning the judiciary, but most modern statutes have extended it to include all public officials in the judicial, executive, and legislative branches of the federal, state, county, and municipal governments. Modern statutes often expand the scope of bribery even further to include similar conduct relating to persons who are not public officials—for example, athletes paid by gamblers to intentionally perform poorly in games.
XIV INCHOATE CRIMES
Crimes that occur prior to and in preparation for what may be a subsequent offense are called inchoate crimes. Inchoate offenses include attempt to commit, conspiracy to commit, and solicitation to commit criminal acts. An inchoate offense is a completed crime in itself, even though a further contemplated criminal act has not been completed. For example, when two or more people genuinely agree to rob a bank, they commit the inchoate offense of conspiracy—whether or not they then commit the robbery.
A Attempt
The crime of attempt applies to acts that, although initiated with the aim of committing a crime, fall short of completion. To be guilty of attempt, the accused must take substantial steps indicating a criminal purpose and the willingness to complete a particular crime. In general, one may be found guilty of an attempted crime even if, in the course of trying to carry out the crime, one mistakenly does something harmless. If, in a dark field, a person shoots a scarecrow thinking it to be his or her intended victim, the shooter can be found guilty of attempted murder. A person cannot be convicted of attempt to commit a crime and that same crime, such as attempted murder and murder.
B Conspiracy
Two or more persons who enter an agreement for the purpose of accomplishing an unlawful act or accomplishing a lawful act by unlawful means are guilty of conspiracy. Under the common law definition of conspiracy, the agreement itself constitutes the blameworthy act and, unlike the crime of attempt, no other act in furtherance of the conspiracy is required. Some modern statutes require at least one of the conspirators to perform some overt act in furtherance of the conspiracy.
C Solicitation
The crime of solicitation involves encouraging, enticing, requesting, or commanding another to commit a crime. The offense is completed at the time the solicitation is made, and it does not require that the person solicited actually commits the crime, agrees to commit the crime, receives the communication soliciting the crime, or even understands that the action solicited is criminal.
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