Criminal Law - 2021 Outline - Part 2

• Intercourse (any kind of penetration) + by a man against a woman + by force or threat of force + with no consent
  • Part of “by a man against a woman has been taken out in modern statutes
• Old definitions include “Carnal knowledge”, “man against woman not his wife”
• Historically, woman had to prove she resisted to determine if it was sufficient force to establish rape.

Modern day elements (taken from TN statute): Rape is unlawful sexual penetration of a victim by the ∆ or of the ∆ by a victim accompanied by any of the following circumstances

• Force/coercion
• Sexual penetration accomplished w/o consent of victim and ∆ knows no consent
• ∆ knows or has reason to know that victim is mentally incapacitated of physically helpless
• Sexual penetration commited by fraud

Note: in VA, took out “consent” : ∆ must prove consent if they believe they had it (becomes an affirmative defense): but they left in “penetration by force or threat of force”

Rerforms in Rape:

• Re-assessing the statute of limitations
• Statutes are less and less gender specific
• Marital exemption (20+ states still treat marital rape differently w/ penalties + needs to be reported sooner)
• Victims rights
• Name of the crime
• Degrees of crime- some states add these bc not one size fits all
• Shield Statutes: reputation evidence related to victims prior sexual conduct shall not be admitted in evidence in prosecution.

Cases:

• State in Interest of M.T.S. - NJ 1992
  • Judicial opinion explaining the changes in the law about rape
  • Burden of proof of non-consent used to be on women (resistance was used to establish this”
  • Women had to resist to the extent of her ability
  • Prompt complaint was necessary
  • Needed strong evidentiary support: testimony was not enough
• People v. Iniguez - Cal 1994
  • Woman raped while she feigned sleep by her aunt’s husband; victim panicked and froze; ∆ admits she didn’t consent
  • Issue: Rape conviction possible w/ evidence that force or threat of force used?
  • Holding: Fear establishes this; fear is subjective and objective (she was afraid + it was reasonable to be afraid)
    • Also, fear of force satisfies the force requirement
• Commonwealth v. Caracciola - Mass 1991
  • ∆ pretended to be police officer; picked up a woman, made her drive; threatened arrest; stopped at park and asked her to have sesx with him
  • Issue: ∆ argues there is no force or threat of force used
  • Rule: fraudulent inducement can satisfy force/threat requirement
  • Dissent: conviction unwarranted under the badly-drafted statute: rule of lenity tells us ∆ should be acquitted; push legislature to change statute afterwards.

1. ACT: Affirmative act or omission of act
2. MENS REA: Malice aforethought + 4 possible intents
   1. FIRST DEGREE- Intent to kill + Premeditation/Deliberation
   2. SECOND DEGREE [Common Law Murder]: Req’s Malice (shown in 4 ways:)
      1. Intent to kill
      2. Intent to inflict bodily harm
      3. Gross Recklessness (malignant heart)
      4. Felony Murder (sometimes elevated to 1st degree by statute)

Cases:

• State v. Fierro - AZ 1979 What is Death
  • ∆ shot man, who didn’t die until 4 days later, when life support turned off; ∆ argues he can’t be guilty of murder1 bc removal from life support
  • Problem: AZ didn’t have def of “death” should have deferred to common law, which they didn’t (judge created new def.- can they do that? Not supposed to)
    • Common law def was the circulation of blood
  • Rule: Wounds don’t need to be direct COD; sufficient that they cause death indirectly through chain of natural effects + causes unchanged by human action
  • Holding: ∆ is G
  • Note: used to be a year and day rule for homicide: victim had to die w/ the year
• Cruzan v. Missouri Dept of Health SCOTUS 1990
  • Car accident ; victim was put in hospital; parents asked them to withdraw nutrition + hydration tubes; they refused; still had functioning brain stem (controls regulation of body) but no upper brain activity (everything else)
  • Issue: is it wrong for health dept to req evidence/proof of incompetent’s wishes to be withdrawn from life support
  • Holding: State is entitled to a judicial proceeding to make a determination about the woman; constitution doesn’t forbid it; health dept is allowed
  • Note: doesn’t deal w/ broader issue: this decision is usurped by following 2
• Washington v. Glucksberg - SCOTUS 1997
  • Surrounding a Washington statute forbidding physician assisted suicide
  • Issue: Do we have the right to receive assistance to end our own life?
  • Rule: It isn’t a violation of constitutional rights to forbid assisted suicide, but Court says debate should continue
  • Court said that for now, issue will be deferred to legislature’s decision
• Vacco v. Quill - SCOTUS 1997
  • Same case as Glucksberg but w/ NY: Part of conjoined opinion
  • Court of Appeals said statute banning it was unconstitutional (violated equal protection clause of 14th amendment) Supreme court overrules this.
  • W/ Current “Death w/ Dignity” statutes:: requires person to be an adult, often with < 6 mo to live, needs written recommendation, they must self administer
• What is Life | Keeler v. Superior Ct.
  • Severely injured ex-wife and killed her unborn baby:
  • Issue: CA code calls for murder to be of a human being: do fetus’s count?
  • Rule of Leniency: if not clear what legislative intent was, must be construed in favor of ∆
  • Ex Post Facto laws: retroactively applying laws to crimes that were committed before they were written: court says if they were to allow judicial enlargement of the statute, it would be ex post facto
  • Holding: The statute does not extend to the killing of an unborn fetus.
  • Chavez case: baby born alive, bled to death through umbilical chord
• Intent to Kill - State v. Gary - Conn 2005
  • Murder by transferred intent; court finds that all that is required is a general intent to commit murder (even if 3d person is murdered instead)
• Intent to inflict GBH | State v. Thompson - LA 1991 First Degree Murder- GBH
  • Robbed a church, beat the pastor and killed him: ∆ argues he cannot be prosecuted for 1st deg murder bc they cannot prove he had intent to kill/ cause great bodily harm (they don’t know if the metal pipe he had was used)
  • Rule: It isn’t instrument used, but severity of injuries that establishes sufficient proof of specific intent to inflict great bodily harm.
  • Note: IN LA- intent to commit GBH is sufficient for 1st degree murder.
• Intent to inflict GBH | People v. Geiger - Mich Ct. App. 1968
  • Man beat his wife, drove around with her in back knowing she was very close to death/aspirating on vomit: makes a comment that he’s facing a “murder rap”; waits 8 hours to get her to hospital
  • Issue: evidence that ∆ had intent to cause GBH w/ attendant likelihood that death could result from the harm?
  • Holding: gap in time bt injuries and seeking help establishes he had intent to cause GBH
• Depraved Heart - Gross Recklessness | People v. Knoller - CA 2007
  • Dog bite case; they were told by vet that dogs were very dangerous
  • Appeals over jury instruction
  • Correct jury instruction: did ∆ acted with a “conscious disregard for human life”
• Depraved Heart-Gross Reckless | People v. Tseng - Cal Ct. App. 2018
  • 3 cts of 2nd deg murder for gross recklessness; doctor who gave out opioids; overall 9 patients died;
  • Depraved-heart murder different from IVMS bc it requires that the ∆ themself knew of the risk (instead of just a reasonable pearson should have known) and chose to act w/ a disregard towards human life
  • Prior actions/words/etc prove that she had implied malice