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Ch 7 Other Crimes Against Persons
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Ch 7 Other Crimes Against Persons

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    Ch 7 Other Crimes Against Persons Ch 7 Other Crimes Against Persons Presentation Transcript

    • Scheb and Scheb, Criminal Law and Procedure 7 th edition Chapter 7: Other Offenses Against Persons
    • Overview of Nonhomicidal Offenses Against Persons
      • assaultive offenses
      • rape and sexual battery
      • false imprisonment and kidnapping
      • abusive offenses
      • civil rights offenses
    • Mayhem
      • At common law, mayhem consisted of willfully and maliciously injuring another so as to render the victim less able in fighting.
      • Mayhem became a statutory crime in most states, with some statutes extending the common-law definition to include injuries that disfigure a person.
      • Mayhem statutes are less common today because many of the acts formerly prosecuted under these laws are now prosecuted under such statutory crimes as aggravated battery and attempted murder.
    • Assault and Battery at Common Law
      • Assault and battery, though commonly referred to together, were separate misdemeanor offenses at common law.
        • An assault was basically an attempted battery consisting of an offer to do bodily harm to another by using force and violence
        • Battery was a completed or consummated assault
    • Assault and Battery Today
      • Today all jurisdictions make assault an offense, and most make battery a crime as well.
      • Simple assaults and batteries generally remain misdemeanors, whereas those perpetrated against public officers are frequently classified as felonies.
      • Legislatures commonly classify as felonies more egregious conduct such as aggravated assault, aggravated battery, and assault with a deadly weapon.
    • Stalking
      • By 1994 all states and the District of Columbia had enacted laws defining stalking and making it either a misdemeanor or a felony.
      • In a report entitled Stalking Victimization in the United States (January 2009) the Bureau of Justice Statistics noted that during 2006 an estimated 3.4 million persons age 18 or older were victims of stalking.
    • The Illinois Stalking Law
      • (a) A person commits stalking when he or she, knowingly and without lawful justification, on at least two separate occasions follows another person or places the person under surveillance or any combination thereof and:
      • (1) at any time transmits a threat of immediate or future bodily harm, sexual assault, confinement or restraint and the threat is directed towards that person or a family member of that person; or
      • (2) places that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement or restraint; or
      • (3) places that person in reasonable apprehension that a family member will receive immediate or future bodily harm, sexual assault, confinement, or restraint.
    • The Federal Stalking Law
      • In 1996 Congress enacted a law to protect persons against stalking when the perpetrator has crossed state lines to commit the crime.
      • The federal statute was amended as part of the Violence against Women Act (VAWA) of 2000 and makes it a crime to stalk someone across state or tribal lines where the stalker has the intent to kill, injure, harass, or intimidate a victim.
        • 18 U.S.C.A. § 2261A(1).
    • Cyberstalking
      • Sometimes referred to as “stalking by proxy,” cyberstalking can involve e-mail messages, blogs, online forums, chat rooms, and social networking sites.
    • The Federal Cyberstalking Law
      • 18 U.S.C.A. § 2261A(2) makes it a federal crime to stalk someone across state, tribal, or international lines using regular mail, e-mail, or the Internet with the intent to kill or injure the victim, or to place the victim, a family member, or a spouse or intimate partner of the victim in fear of death or serious bodily injury.
    • Florida’s Cyberstalking Law
      • In 2004 the Florida legislature amended its stalking law to define cyberstalking as “to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”
        • West’s Fla. Stat. Ann. § 784.048
    • Hazing
      • Hazing consists of intentional or reckless physical or mental harassment, abuse, or humiliation in the process of initiation into clubs, fraternities, sororities, athletic teams, and other groups.
        • Many colleges and universities have explicit prohibitions on hazing.
        • Hazing is also prohibited in the armed forces academies.
    • Maryland Anti-Hazing Statute
      • (a) A person may not recklessly or intentionally do an act or create a situation that subjects a student to the risk of serious bodily injury for the purpose of an initiation into a student organization of a school, college, or university.
      • (b) A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 6 months or a fine not exceeding $500 or both.
      • (c) The implied or express consent of a student to hazing is not a defense under this section.
        • MD Code, Criminal Law § 3-607
    • Reckless Endangerment
      • This offense consists of recklessly engaging in conduct that places or could place someone in imminent danger of death or serious bodily injury. 
        • In Tennessee, reckless endangerment is a Class A misdemeanor.
        • However, it becomes a Class E felony if it is committed with a deadly weapon.
    • Rape and Statutory Rape
      • At common law, it was a felony for a male to have sexual intercourse with a female by force and against her will.
      • In later stages of the English law, it became a statutory offense for a man to have carnal knowledge of a female child less than ten years of age with or without the child’s consent.
      • This latter offense came to be known as statutory rape.
    • Traditional American Rape Laws
      • Courts in American jurisdictions struggled with the requirements of force and consent in the law of rape.
      • Some judges instructed juries that “for the defendant to be found guilty of rape, you must find that the woman resisted to her utmost.”
      • Later cases recognized degree of resistance as a relative matter dependent on all the circumstances surrounding the incident.
      • Yet courts continued to recognize that resistance generally had to be more than a mere negative verbal response by a female.
    • “ Hale’s Rule” (The Marital Exception)
      • Common-law rape contemplated unlawful intercourse; therefore, a husband could not be guilty of raping his wife.
      • This was generally referred to as Hale’s Rule (after Sir Matthew Hale, who served as Lord Chief Justice in England from 1671 to 1676).
    • Modern Legislative Reforms
      • Defined rape as a gender-neutral offense
      • Criminalized forced sexual relations between spouses or cohabiters
      • Expanded common-law definitions to other forms of sexual penetration
      • Rape shield laws
    • Statutory Rape
      • In later stages of the English law, it became a statutory offense for a man to have carnal knowledge of a female child less than ten years of age with or without the child’s consent. This offense came to be known as statutory rape.
      • Statutory rape laws are now gender-neutral in most states, and some impose penalties only if there is at least a two to five-year disparity between the ages of the perpetrator and the underage party.
    • Statutory Rape (cont.)
      • Statutory rape is a strict liability crime.
      • A few states have allowed a defendant to defend against a charge of statutory rape on the basis that he or she was mistaken about the victim’s age, but most hold the defendant strictly liable even if he or she made a reasonable inquiry in good faith to determine the victim’s age.
    • Rape under Tennessee Law
      • In Tennessee, rape is defined as the “unlawful sexual penetration of a victim by the defendant accompanied by any of the following circumstances: (1) Force or coercion is used to accomplish the act; (2) The sexual penetration is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the penetration that the victim did not consent; (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or (4) The sexual penetration is accomplished by fraud.”
        • T.C.A. § 39-13-503.
    • What is “sexual penetration”?
      • Under the statute, “sexual penetration” consists of “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of the victim’s, the defendant’s, or any other person’s body, but emission of semen is not required.”
        • T.C.A. § 39-13-501(6).
    • Aggravated Rape in TN
      • Aggravated rape consists of unlawful sexual penetration where: “(1) Force or coercion is used to accomplish the act and the defendant is armed with a weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a weapon; (2) The defendant causes bodily injury to the victim; (3) The defendant is aided or abetted by one or more other persons; and (A) Force or coercion is used to accomplish the act; or (B) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless.”
        • T.C.A. § 39-13-502.  
    • Sexual Battery in TN
      • Sexual battery consists of “unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances: (1) Force or coercion is used to accomplish the act; (2) The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent; (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or (4) The sexual contact is accomplished by fraud.”
        • T.C.A. § 39-13-505.
    • What is “sexual contact”?
      • “ Sexual contact” is “the intentional touching of the victim’s, the defendant’s, or any other person’s intimate parts, or the intentional touching of the clothing covering the immediate area of the victim’s, the defendant’s, or any other person’s intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.”
        • T.C.A. § 39-13-501(6)
    • Sex Offender Registration Laws
      • Require convicted sex offenders who are released from prison, move into the state, or simply change their addresses to register with local law enforcement agencies.
      • These agencies in turn must make this information available to the public.
    • Megan’s Law
      • The New Jersey sex offender statute became widely known as Megan’s Law in memory of Megan Kanka, who was killed by a known sex offender.
      • Failure to comply with the registration requirement is itself a criminal offense. After fifteen years with no violations, an offender may request a court to terminate sex offender status.
        • See, generally, N.J.S.A. 2C: 7-1 et seq.
    • Smith v. Doe (US Sup Ct. 2003)
      • The Court upheld (6-3) Alaska’s version of Megan’s Law against an attack based on the constitutional prohibition against ex post facto laws. The majority found that although the act was retroactive, it was nonpunitive in nature; therefore, the Ex Post Facto Clause did not apply.
      • Dissenters noted the severe stigma that sex offender registration places on the convicted sex offender.
    • Aggravated Sexual Battery in TN
      • Aggravated sexual battery is unlawful sexual contact where: “(1) Force or coercion is used to accomplish the act and the defendant is armed with a weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a weapon; (2) The defendant causes bodily injury to the victim; (3) The defendant is aided or abetted by one (1) or more other persons; and (A) Force or coercion is used to accomplish the act; or (B) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or (4) The victim is less than thirteen (13) years of age.
        • T.C.A. § 39-13-504.
    • False Imprisonment and Kidnapping
      • In recognition of the need to protect an individual’s freedom of movement, the common law developed two misdemeanor offenses: false imprisonment and kidnapping .
      • False imprisonment consisted of confining someone against the person’s will, whereas kidnapping involved forcibly abducting and taking a person to another country.
    • False Imprisonment in TN
      • In Tennessee, one commits false imprisonment when he or she “knowingly removes or confines another (person) unlawfully so as to interfere substantially with the other’s liberty.”
        • T.C.A. § 39-13-302.
    • Kidnapping in TN
      • Kidnapping is defined in the same way as false imprisonment with the additional element that it must be committed “under circumstances exposing the other person to substantial risk of bodily injury.” One is also guilty of kidnapping where “confinement of another is in a condition of involuntary servitude” (i.e., slavery).
        • T.C.A. § 39-13-304
    • Aggravated Kidnapping in TN
      • Aggravated kidnapping consists of kidnapping committed “(1) To facilitate the commission of any felony or flight thereafter; (2) To interfere with the performance of any governmental or political function; (3) With the intent to inflict serious bodily injury on or to terrorize the victim or another; (4) Where the victim suffers bodily injury; or (5) While the defendant is in possession of a deadly weapon or threatens the use of a deadly weapon.”
        • T.C.A. § 39-13-304.
    • False Imprisonment
      • Texas law states that “[a] person commits an offense if he intentionally and knowingly restrains another person.”
        • Vernon’s Tex. Penal Code Ann. § 20.02(a).
      • Texas law declares the offense to be a misdemeanor but provides that it becomes a felony if the offender recklessly exposes the victim to a substantial risk of serious bodily injury.
        • Vernon’s Tex. Penal Code Ann. § 20.02(c).
    • Kidnapping
      • Under modern legislation, to constitute kidnapping there must be an unlawful taking and forcible carrying away (asportation) of a victim without that person’s consent.
      • Intimidation and coercion can substitute for the required force, and even where consent has been given, a person who has the capacity to consent must have voluntarily given it.
    • Child Snatching
      • The term “child snatching” is now commonly applied to situations in which one parent deliberately retains or conceals a child from the other parent.
      • The problem has resulted partly from the ability of one parent to seize a child from the custodial parent, travel to another state, and petition the court in the latter state for custody of the child.
    • Abusive Offenses
      • Child abuse
      • Spousal abuse
      • Elder abuse
    • New York Child Abuse Law
      • Makes endangering the welfare of a child a misdemeanor and provides that a person is guilty of endangering the welfare of a child when …
      • 1. He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health; or
      • 2. Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an “abused child,” a “neglected child,” a “juvenile delinquent,” or a “person in need of supervision” …
        • McKinney’s N.Y. Penal Law § 260.10.
    • Spousal Abuse
      • Many of these abuses constitute criminal violations of one or more traditional statutes previously discussed.
      • Nevertheless, laws have been enacted in many states to provide for issuance of court injunctions to protect spouses from domestic violence and provide for the arrest of those who violate these orders.
      • In many instances, courts issue protective orders of this character during litigation.
    • Under Illinois law, the caregiver of an elderly or disabled person commits a felony if he or she knowingly:
      • (1) performs acts which cause the elderly or disabled person’s life to be endangered, health to be injured, or pre-existing physical or mental condition to deteriorate; or
      • (2) fails to perform acts which he knows or reasonably should know are necessary to maintain or preserve the life or health of the elderly or disabled person and such failure causes the elderly or disabled person’s life to be endangered, health to be injured or pre-existing physical or mental condition to deteriorate; or
      • (3) abandons the elderly or disabled person.
        • 720 ILCS 5/12-21 (West 1994).
    • Civil Rights Offenses
      • Civil rights offenses were unknown to the common law.
      • After the Civil War, Congress adopted a series of laws designed to protect the civil rights of the newly freed former slaves.
      • Today, these statutes as amended can be used to initiate federal prosecutions against individuals who conspire or use their official positions to deprive persons of rights guaranteed by the U.S. Constitution or the laws of the United States.
    • 18 U.S.C.A. § 241. Conspiracy against rights
      • If two or more persons conspire to injure, oppress, threaten, or intimidate any inhabitant of any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
      • If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
    • 18 U.S.C.A. § 241 (cont.)
      • They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
    • 18 U.S.C.A. § 242. Deprivation of rights under color of law
      • Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; … {continued on next slide}
    • 18 U.S.C.A. § 242 (cont.)
      • … and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
    • United States v. Lanier (US Sup Ct 1997)
      • David Lanier, a Tennessee state judge, was charged with violating the constitutional rights of five women by sexually assaulting them in his chambers.
      • In a somewhat novel theory of the scope of 18 U.S.C.A. § 242, the federal indictment alleged that the judge, acting willfully and under color of state law, had deprived his victims of their federal constitutional right to be free from sexual assault.
    • United States v. Lanier (cont.)
      • The jury returned verdicts of guilty on seven counts, and the defendant was sentenced to twenty-five years in federal prison.
      • The U.S. Court of Appeals for the 6th Circuit reversed the conviction, but the U.S. Supreme Court reversed the circuit court’s ruling.
      • After the Supreme Court’s decision, Judge Lanier was apprehended in Mexico, where he had fled to avoid imprisonment.
      • He is currently serving his sentence in federal prison.
    • Hate Crimes
      • Criminalizing the expression of hatred raises First Amendment issues.
        • See, e.g., Brandenburg v. Ohio (1969); RAV v. St. Paul (1992); Virginia v. Black (2003)
      • The Supreme Court has upheld hate crime laws of the penalty enhancement variety.
        • Wisconsin v. Mitchell (1993)