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Ch 10 Vice Crimes


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  • 1. Scheb and Scheb, Criminal Law and Procedure 7 th edition Chapter 10: Vice Crimes
  • 2. What are Vice Crimes?
    • The word “vice” comes from the Latin vitium meaning “fault” or “defect.”
    • The term “vice” is associated with a number of crimes traditionally classified as offenses against public decency or morality.
    • Some of these offenses, such as indecent exposure, bigamy and obscenity, have their roots in English common law.
    • Others, like prostitution, gambling, and alcohol and drug offenses, were created legislatively at various times in our nation’s history.
  • 3. Vice Crimes Include…
    • Criminal Prohibitions of Consensual Sexual Conduct
    • Bigamy and Polygamy
    • Prostitution
    • Indecent Exposure and Voyeurism
    • Obscenity and Child Pornography
    • Profanity
    • Gambling
    • Alcohol-Related Offenses
    • Drug Offenses
  • 4. Adultery and Fornication
    • Fornication is sexual intercourse between unmarried persons.
    • Adultery is sexual intercourse between a male and female, at least one of whom is married to someone else.
    • Fornication and adultery were regarded as offenses against morality and were punishable in the ecclesiastical courts in England.
    • Neither was considered a common-law crime unless committed openly.
    • These offenses are rarely prosecuted today and many states have eliminated these offenses altogether.
  • 5. Sodomy
    • Sodomy consists of oral or anal sex between humans and sexual intercourse between humans and animals (bestiality).
    • Sodomy was originally an ecclesiastical offense but became a felony in the later stages of the common law.
    • Until 1961 all states had statutes outlawing sodomy; however, during the 1970s and 1980s many of these statutes were either repealed or invalidated by courts.
    • The few that remained on the books were rarely enforced.
  • 6. Lawrence v. Texas (2003)
    • The Supreme Court struck down one of the few remaining sodomy laws, saying that it “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
    • The Lawrence decision signaled the demise of consensual sodomy as a criminal offense in the United States.
  • 7. Incest
    • Incest is sexual intercourse between persons who are related within specified degrees of consanguinity (kinship by blood).
    • Incest was not a crime at common law but was punishable by the ecclesiastical courts.
    • Today all states prohibit marriage or sexual relations between certain close relatives.
    • Once the prosecution establishes the defendant’s knowledge of the prohibited relationship, proof of the act of sexual intercourse is sufficient to show violation of the statute.
    • There is little support for abolishing laws forbidding incest.
  • 8. Bigamy
    • Bigamy is marriage between two persons when one is already legally married to another person.
    • Bigamy was originally a canonical offense punishable by the ecclesiastical courts in England; later it became a common-law offense.
    • All American jurisdictions prohibit bigamy.
    • Statutes require the prosecution to prove that the defendant had knowledge of the prior marital status of the person whom he or she married.
  • 9. Polygamy and Religious Freedom
    • During the 1800s arguments were advanced that polygamy was a religious practice protected by the First Amendment.
    • In Reynolds v. United States (1878) the U.S. Supreme Court rejected these contentions when it held that a religious belief cannot be made a justification for commission of an overt act made criminal by the state.
    • Today there are certain religious sects that continue to practice polygamy despite the prohibitions of the criminal law.
  • 10. Prostitution
    • Although prostitution was not a crime at common law, statutes proscribing prostitution have existed since the early history of the United States.
    • Law enforcement authorities have long linked the activity with other forms of vice as well as the exploitation of women.
    • Today, prostitution is illegal in all states except Nevada, where it exists by local option in some counties, although it is strictly regulated by law.
  • 11. Indecent Exposure
    • At common law, it was a misdemeanor for persons to intentionally expose their “private parts” in a public place.
    • Today, statutes and local ordinances in most jurisdictions make it a misdemeanor to expose one’s private parts to the view of another under offensive circumstances.
    • Frequently state statutes and local ordinances specify that the prohibited exposure must be in public or visible to the public.
  • 12. Is nude dancing for entertainment in clubs a form of indecent exposure or is it constitutionally protected expression ?
    • In Erie v. Pap’s A.M. (2000), the U.S. Supreme Court upheld an Erie, Pennsylvania, ordinance that was interpreted to require dancers in clubs to wear pasties and G-strings.
    • Writing for a plurality of justices, Justice Sandra Day O’Connor observed that “the ordinance furthers the important government interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing.”
  • 13. Voyeurism
    • Voyeurism refers to obtaining sexual gratification from seeing another person’s sexual organs or sexual activities.
    • Historically voyeurism has been addressed under “Peeping Tom” statutes.
  • 14. The Tennessee Voyeurism Law
    • 39-13-607. Observation without consent. —
      • (a) It is an offense for a person to knowingly spy upon, observe or otherwise view an individual, when the individual is in a place where there is a reasonable expectation of privacy, without the prior effective consent of the individual, if the viewing:
        • (1) Would offend or embarrass an ordinary person if the person knew the person was being viewed; and
        • (2) Was for the purpose of sexual arousal or gratification of the defendant.
      • (b) It is not a defense to a violation of this section that the defendant was lawfully on the premises where the offense occurred.
      • (c) If the person being viewed is a minor, this section is violated regardless of whether the minor or the minor's parent or guardian consented to the viewing.
      • (d) A violation of this section is a Class A misdemeanor.
        • [Acts 2000, ch. 667, § 1.]
  • 15. Obscenity
    • At common law, vulgar and obscene language and indecent public exhibitions were considered public nuisances, punishable as misdemeanors.
    • Historically, federal and state governments in the United States passed laws banning various forms of obscenity.
    • In the modern era such laws came under challenge based on First Amendment arguments.
  • 16. The Miller Test
    • In Miller v. California (1973), the Supreme Court formulated a three-part test to determine whether a particular work is obscene:
      • “ whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest;
      • whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
      • whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
  • 17. Child Pornography
    • In New York v. Ferber (1982), the Supreme Court unanimously held that child pornography, like obscenity, is unprotected by the First Amendment to the Constitution, even if the material in question does not meet the legal test of obscenity.
    • The Court found a compelling state interest in protecting the well-being of children and perceived no value in permitting performances and photo reproductions of children engaged in lewd sexual conduct.
  • 18. Profanity
    • Historically states and local communities enacted laws prohibiting public profanity.
    • In many instances these prohibitions were incorporated into broader prohibitions of offensive or disorderly conduct.
    • In recent decades, the courts have often invalidated such laws for vagueness.
    • In other instances, courts have upheld their validity but ruled that such laws can be applied only where the defendant’s language consisted of “fighting words” or the defendant’s conduct threatened a breach of the peace.
  • 19. Cohen v. California (1971)
    • The U.S. Supreme Court invalidated the “offensive conduct” conviction of a man who entered a courthouse wearing a jacket emblazoned with the slogan “Fuck the Draft.”
    • Writing for the Court, Justice John Harlan noted that “while the particular four-letter-word being litigated here is perhaps more distasteful than others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.”
  • 20. Gambling
    • The common law did not regard gambling as an offense. However, many of the new American states, either by constitution or statute, made all or certain forms of gambling illegal.
    • Today, federal laws and a variety of state statutes and local ordinances prohibit gambling. Yet there are many jurisdictions that permit certain forms of gambling (state-run lotteries, casinos, horse and dog racing, bingo games, etc.).
    • Existing gambling laws are widely ignored and certain forms of gambling, such as sports betting, are widespread.
  • 21. Tennessee Animal Cruelty Law
    • (a) A person commits an offense who intentionally or knowingly:
    • (1) Tortures, maims or grossly overworks an animal;
    • (2) Fails unreasonably to provide necessary food, water, care or shelter for an animal in the person’s custody;
    • (3) Abandons unreasonably an animal in the person’s custody;
    • (4) Transports or confines an animal in a cruel manner; or
    • (5) Inflicts burns, cuts, lacerations, or other injuries or pain, by any method, including blistering compounds, to the legs or hooves of horses in order to make them sore for any purpose including, but not limited to, competition in horse shows and similar events.
    • (b) It is a defense to prosecution under this section that the person was engaged in accepted veterinary practices, medical treatment by the owner or with the owner’s consent, or bona fide experimentation for scientific research. 
      • T.C.A. § 39-14-202
  • 22. Tennessee law also proscribes …
    • … cockfighting, dog fighting, and other forms of animal fighting.
      • T.C.A. § 39-14-203
    • … the intentional killing of animals belonging to other persons, except where necessary to protect oneself.
      • T.C.A. § 39-14-205
    • There is also a statute governing offenses involving farm animals and animal research facilities.
      • T.C.A. § 39-14-803
  • 23. Prohibition
    • The Eighteenth Amendment to the U.S. Constitution, ratified in 1919, made unlawful the “manufacture, sale, or transportation of intoxicating liquors” within the United States.
    • Prohibition was repealed in 1933 by the Twenty-First Amendment.
    • Under the Twenty-First Amendment, state and local governments retain the authority to ban or regulate the manufacture, sale, and use of alcohol within their borders.
  • 24. Offenses Related to the Consumption of Alcohol by Minors
    • All states prohibit minors from purchasing, possessing, and consuming alcoholic beverages and also make it an offense for an adult to sell, serve, or otherwise provide alcohol to a minor.
    • Such offenses are misdemeanors, but the recent trend is to punish these offenses severely.
  • 25. The “Drinking Age”
    • Although states are free to set their own drinking ages, Congress has induced states to raise the drinking age to twenty-one.
    • Under 23 U.S.C.A. § 158, the Secretary of Transportation is required to withhold a percentage of a state’s otherwise allocable federal highway funds if the state does not establish a minimum age of twenty-one for “the purchase or public possession” of alcoholic beverages.
    • The act has effectively established twenty-one as the minimum age for drinking.
  • 26. Public Intoxication
    • Laws and ordinances making public drunkenness an offense have long been enforced by all jurisdictions, with most states and municipalities simply providing that whoever shall become intoxicated from the voluntary use of intoxicating liquors shall be punished.
    • This offense is usually classified as a minor misdemeanor.
    • A common police practice has been to take offenders into custody and release them once they have “sobered up.”
  • 27. “ Driving under the Influence”
    • The “classical” offense in this area is driving while intoxicated (DWI).
    • In the 1960s and 1970s, many jurisdictions expanded the offense to prohibit driving under the influence (DUI) of intoxicating liquors or drugs.
    • DWI and DUI laws sometimes allowed a defendant to avoid conviction because of the ambiguity of his or her subjective behavior.
    • In response to this problem, most states have modified their statutes to prohibit driving with an unlawful blood-alcohol level (DUBAL).
  • 28. Unlawful Blood-Alcohol Level
    • For many years most states defined “an unlawful blood-alcohol level” as 0.1% or more alcohol in the bloodstream.
    • Today, as a result of federal pressure, all fifty states have lowered the prohibited blood-alcohol level to .08%.
    • Most states now impose harsher penalties on DUBAL offenders whose blood-alcohol levels are especially high, typically defined as 0.15 to 0.20 percent.
  • 29. Federal Controlled Substances Act
    • Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970.
      • 21 U.S.C.A. § 801 et seq .
    • The Act classifies controlled substances according to their potential for abuse.
    • The act defines offenses involving the manufacture, sale, distribution, and possession with intent to distribute of these substances.
    • Provision is made for registered practitioners to dispense controlled substances for approved purposes.
  • 30. State Controlled Substances Laws
    • In 1972 the Uniform Controlled Substances Act was drafted by the Commission on Uniform Laws, whose purpose was to achieve uniformity among state and federal laws.
    • There are three versions of the Uniform Controlled Substances Act: 1970, 1990, and 1994.
    • All fifty states and the Virgin Islands have adopted one of the three versions.
    • Like the federal statute, the uniform act classifies controlled substances according to their potential for abuse.
  • 31. Schedule of Controlled Substances under Tennessee Law Schedule I High potential for abuse; no accepted medical use in treatment or lacks accepted safety for use in treatment under medical supervision. This includes certain opiates (e.g., heroin); hallucinogens (e.g., LSD); depressants (e.g., methaqualone); and stimulants (e.g., MDMA). Schedule II High potential for abuse; has currently accepted medical use in treatment, or currently accepted medical use with severe restrictions; abuse of the substance may lead to severe psychic or physical dependence. Examples: Cocaine, morphine, amphetamines, amobarbital.
  • 32. Schedule of Controlled Substances under Tennessee Law (cont.) Schedule III Potential for abuse less than the substances listed in Schedules I and II; has currently accepted medical use in treatment; and may lead to moderate or low physical dependence or high psychological dependence. Examples: Anabolic steroids. Schedule IV Low potential for abuse relative to substances in Schedule III; has currently accepted medical use in treatment; and may lead to limited physical dependence or psychological dependence relative to the substances in Schedule III. Example: Phenobarbital.
  • 33. Schedule of Controlled Substances under Tennessee Law (cont.) Schedule V Low potential for abuse relative to the controlled substances listed in Schedule IV; has currently accepted medical use in treatment in the United States; and has limited physical dependence or psychological dependence liability relative to the controlled substances listed in Schedule IV. Example: A medicine containing not more than two hundred (200) milligrams of codeine per one hundred (100) grams. Schedule VI Tetrahydrocannabinols. Marijuana; hashish; synthetic equivalents. Schedule VII Butyl nitrite and any isomer thereof.
  • 34. The War on Drugs
    • In 1988, Congress enacted the Anti-Drug Abuse Act, which established the Office of National Drug Control Policy (ONDCP) within the Executive Office of the President to coordinate federal and state drug control programs.
    • Some employees and in many school districts teachers and students are subjected to drug testing and these programs have been upheld by the courts.
    • Advocates of legalization contend that criminal prohibition of drug use has led to a vast underground economy and that the war on drugs has debased the rule of law by ineffective attempts to alter personal conduct.
  • 35. Drug Courts
    • Rather than sending nonviolent defendants to jail, a drug court monitors their progress through status hearings and prescribes sanctions and rewards.
    • There is evidence that this approach can reduce substance abuse, rehabilitate participants, and thereby reduce recidivism.