Glossary of Criminal Law Basics II

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Rape (generally)
Sexual intercourse committed:
Forcibly; or
By Deception (Fraud in the Factum); or
While victim is unconscious;
Victim not competent to consent (child, intoxicated, mentally disabled)
Forcible Rape
Rape accomplished by force or threat of force.
Common law rule: conviction will stand only if victim resisted to utmost, or her resistance was prevented by threat of force.
What is a threat of force?
Threat of death or serious bodily harm.
Non-physical threats (i.e., sleep with me or I’ll fire you) don’t count.
Implicit threat may be enough if the circumstances are quite clear that the defendant is knowingly taking advantage of victim’s fear.
Forcible Rape – Resistance Requirement
Trend toward lessening or eliminating requirement (though even where abolished, still relevant to consent determination).
Where required, “utmost” resistance generally replaced with resistance “sufficient to communicate non-consent.”
Verbal resistance (i.e. “no”) often enough.
Forcible Rape – How Much Force?
Berkowitz – sufficient to compel victim to engage in intercourse.

MTS – no force necessary beyond that sufficient to achieve penetration.

MTS is minority provision, but represents trend away from strong force requirement.
Forcible Rape – Mens Rea
General intent crime. Only excusable by reasonable mistake of fact.

Trend towards abolishing reasonable mistake of fact defense, or limiting applicability to situations where evidence shows ambiguity regarding victim’s consent.
Rape by Fraud
Only available for cases involving fraud in the factum, not fraud in the inducement.
In other words, victim must not be aware of nature of the act.
Many jurisdictions also permit rape-by-fraud where rapist impersonates spouse.
A non-aggressor may use force against another if s/he:
reasonably believes that such force is
necessary to prevent
unlawful use of force by another.
Self-Defense -- Aggressor
Unlawful words or acts reasonably calculated to provoke a deadly conflict.
Mere use of insulting words not generally enough to make one an aggressor (“sticks and stones may break my bones, etc.”)
Lawful use of force not sufficient to transform one into aggressor.
Deadly aggressor
can only regain right of self-defense by withdrawing from conflict and clearly communicating withdrawal to victim.
Non-Deadly aggressor
Some courts say that aggressor immediately regains right of self-defense if victim responds to non-deadly force with deadly force (i.e. disproportionate response).

Other courts say aggressor must first withdraw from conflict, communicate withdrawal to victim, and retreat (if possible).
Self-Defense – Necessity
To be necessary, the force must be:
(a) in response to an imminent threat; and
(b) proportional to the threat.
Retreat required when using self-defense?
Majority rule: No.
Large minority rule: Yes, if retreat can clearly be done safely.
Exception: “castle” doctrine. No requirement to retreat from force in your home (including curtilage). Some states include workplace.
Necessity Defense – Common Law Requirements:
Clear and imminent danger.
Reasonable expectation that action will allow one to avoid or eliminate the danger.
No effective legal way to avert the harm.
Harm caused must be less serious than reasonably foreseeable harm avoided.
Lawmakers must not have anticipated this situation and chosen different “balance of harms.” (i.e. medical marijuana)
Defendant should have clean hands
“Reasonably foreseeable” harm
permits defense even where defendant makes a reasonable mistake as to likely outcome.
“Lesser harm”:
The value judgment as to which harm is actually lesser is an objective one, not based on defendant’s own perception of relative values. There is dispute as to whether the relative harms should be measured with reference to utilitarian values, or on basis of objective moral grounds.
Necessity Defense - common law
Defense generally does not apply to homicide cases.
Some states say necessity has to have been created by natural forces rather than human agency.
Some states only permit defense of person or property, not “intangible interests” such as reputation or economic well-being.
Necessity Defense and Homicide
common law
No necessity defense to homicide
Necessity Defense and Homicide
Natural Law (Catholic) approach:
Principle of double effect. One is permitted to take action necessary to save a life, even though one knows that this action will result in death, where: (1) death is not the intended effect; and (2) the death of one person is not the very means by which life is saved.
Necessity Defense and Homicide
MPC (Utilitarian) approach:
necessity defense available for homicide.
Duress – Common Law
Unlawful threat of death or grievous bodily harm;
Against oneself or a third party (especially near relative);
Actor reasonably believes threat is genuine;
Threat “present imminent and impending;”
No reasonable chance to escape.
Duress (common law) limitations:
You cannot claim the defense if you are at fault for exposing yourself to the threat.
Defense generally does not apply to homicides.
M’Naghten Test
Legally insane if laboring under such defect of reason, arising from disease of the mind, that s/he:
Did not know nature and quality of act she performed; or
Did not know that it was wrong.
“Irresistable impulse” test:
Some jurisdictions use as a supplement to M’Naghten test.
One is legally insane if one “acted from an irresistable and uncontrollable impulse.”
Meant to excuse people suffering from mental illness that affects volitional capacity.
Durham test
Defendant is excused if conduct was “product” of mental disease or defect.”
Criticized for giving experts too much power.
Acquits some blameworthy people.

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