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Criminal Law - Outline - Part 6

By Lindsey Jackson

Download the PDF version of this outline

<< Part 5 | Part 7 >>

IV. Self-Defense

a. 5 categories of defenses:

  1. Failure of Proof
    1. Not enough evidence to convict
    2. Government hasn’t proven one of the elements
  2. Offense modification
    1. Attempting to get lesser offense
    2. Changing to a lower conviction
    3. Goes to jail, but for less time
  3. Justifications (affirmative)
  4. Excuses (affirmative)
  5. Nonexculpatory public policy defenses
    1. Public policy violation
    2. Wrong way to go about it

b. Affirmative defense: I did it, but I had a good reason.

  1. Admit all the elements
  2. Turns to the defendant to prove the defense (burden shifts)
    1. Prove by preponderance of the evidence
  3. Once the defendant makes his case for his defense, the burden shifts back to the government to prove the affirmative defense is invalid
    1. Prove beyond a reasonable doubt

c. Justifications and Excuses (affirmative)

  1. Overview
    1. Justification (self-defense)
      1. Focus on the act, not the actor
      2. Morally acceptable conduct by defendant
    2. Excuse (insanity)
      1. Focus on the actor, not the act
      2. Act is morally unacceptable, but the actor is unworthy of blame
  2. Self-defense
    1. Most common: 1st degree murder/sometimes 2nd degree
      1. Maybe voluntary manslaughter
      2. Assault/battery
    2. Why is it a defense
      1. Self-preservation
      2. Common law defense
      3. Morality of killing changes when its kill or be killed
    3. U.S. v. Peterson: Victim is stealing parts from defendant’s car; victim gets a weapon and challenges Peterson (who has a gun). Defendant says he shot to warn; the lug wrench came before the gun. Tries to argue based on the government’s case that it was self-defense.
      1. Jury decided voluntary manslaughter
        1. Adequately provoked the victim by coming at him
        2. Mutual combat
      2. Issue raised on appeal: whether the retreat/castle doctrine was wrong
        1. Appellate court says it was correct
      3. General requirements of self-defense:
        1. Actual or apparent threat of unlawful and immediate force made against the defendant
        2. The defendant actually (subjective) and reasonably (objective) believed that threat placed him in imminent peril or death or serious bodily harm
        3. It was necessary
        4. It was proportional
      4. Three components of self-defense:
        1. Necessity
        2. Reasonableness
        3. Proportionality
    4. Common Law Duty to Retreat
      1. If you could escape, it wasn’t necessary to act in self-defense/use deadly force
      2. If you didn’t know it wasn’t a way to retreat
      3. Putting yourself in more harm, victim at a disadvantage and preserved life the defendant
      4. Instinct is to fight; this would say put flight over fight
        1. Look around for exit loses time/goes against instinct
    5. Stand Your Ground Law
      1. State rejected duty to retreat
      2. Stand and fight instead
      3. Slight majority rule
      4. Stand and use deadly force when it seems reasonably necessary to save himself
        1. Fight can be your first response
    6. Castle Doctrine
      1. Do not have to retreat in your own home ever
        1. Doesn’t matter if jurisdiction with duty to retreat rule
        2. This is an exception
      2. Would be dumb to surrender your own home to an intruder
      3. How far does it extend?
        1. Unclear
        2. Majority says immediate adjacent to your home
    7. First Aggressor Rule
      1. If you start the conflict and claim self-defense for your behavior during the conflict you cannot prevail
      2. Exceptions:
        1. Losing first aggressor status
          1. Non-aggressor escalates the fight (non-deadly to deadly force)
          2. Retreat by first aggressor (essentially a new conflict)
    8. Proportionality Principle
      1. Non-deadly with non-deadly force
      2. Deadly with deadly
        1. Not always but a general rule
      3. Future deadly (threat) cannot be met with deadly force in the present
        1. Other options
        2. Self-defense when no other option
    9. Imperfect Self-defense
      1. Mitigation defense: reduced sentence
      2. The defendant subjectively believes he needs deadly force
        1. But a reasonable person would not have (objective)
      3. Perfect = objective (reasonable) and subjective
      4. Imperfect = subjective and unreasonable
      5. Result of imperfect self-defense:
        1. Reduction in offense
        2. Reduction in penalty
  3. Defense of Others
    1. Common law said only defense of others applied to family
      1. “alter ego” rule: can defend third party strangers when they are the alter ego of the victim
        1. Only use self-defense if the person being beaten could use self-defense
        2. Couldn’t defend first aggressors even if they didn’t know they were in the wrong
    2. Modern approach: reasonable belief approach
      1. MPC
      2. Majority rule today
      3. There was a reasonable belief by the actor that the person they defended was in imminent danger
        1. Still act proportionally
      4. Court adopts reasonableness approach (reasonable belief approach)
      5. Defendant must show:
        1. Used reasonable force
        2. The person was in serious imminent threat of death or bodily injury
        3. The person would have been justified using force themselves
      6. Reasonably is:
        1. Objective and subjective
        2. Proportional force
V. Unlawfully Kill Element

a. What is life?

  1. “born alive” rule: you have to be born alive to be killed
    1. Traditional common law rule
    2. An unborn fetus was not included within the definition of a person or human being and therefore the killing of a viable unborn child was not murder.
    3. At common law, someone (not mother) injures the unborn child and it dies in the womb, not murder
      1. If the child dies after being born alive (crying) → murder
    4. Many states still follow the born alive rule
      1. There is not a prevailing other approach
      2. Other states have their own different way of approaching it
        1. Ex. Viability, conception
        2. NC: new crime = “murder of unborn child”
          1. Unlawfully causes the death of an unborn child
          2. Except abortion
          3. Separate from 1st/2nd degree murder
          4. Created a whole new crime

b. What is death?

  1. Two ways to show death:
    1. Brain death
    2. Respiratory function failure
      1. These are alternatives, don’t need both
  2. Traditional was cardiopulmonary
    1. Added brain death because of changes in technology
      1. All three parts of the brain cease to function for brain death
  3. The Year and a Day Rule
    1. Traditional common law (minority)
    2. Victim dies within 1 year and 1 day of the defendant’s act that inflicted the injury
    3. Modern approach:
      1. Majority says there is no year and a day rule
      2. There is no limit

c. Generally: euthanasia is not a valid defense

  1. Only a few exceptions in a few states allow physician suicide
  2. Never not by a physician
VI. Kidnapping

a. Elements:

  1. Defendant
  2. Knowingly and willingly
  3. Transports in interstate commerce (across state lines)
  4. A non-consenting person
  5. Who is held, for ransom, reward, or otherwise (some type of criminal purpose)

b. U.S. v. Ivy: Ex-boyfriend shot and killed her new boyfriend in front of her and took her with him. She made no attempt to escape or call the police for several days.

  1. Violent behavior at the beginning with abuse in the past gave her reason to believe he would lash out if she tried to escape.
VII. Sexual Assault Crimes

a. Traditional common law = rape

b. Today = sexual assault crimes

c. Traditional definition:

  1. Carnal knowledge of a woman forcibly and against her will
  2. Males = defendants
  3. Females = victims
  4. Force = resistance required
  5. Spousal immunity → did not recognize spousal rape
  6. Punishment = death

d. Today: sexual assault (modern approach)

  1. Gender neutral
  2. No spousal immunity
  3. No resistance required (force)
  4. Rape replaced with a series of offenses in many states
    1. Forcible
    2. Coercive
    3. Non-consensual
    4. Sexual assault of a minor
    5. Statutory rape
  5. No death penalty (8th amendment)
  6. could get life imprisonment though

e. Modern Distinctions based on type of sexual conduct

  1. Common law = only sexual conduct was vaginal rape that qualified as rape
  2. Today: “Sexual Acts”
    1. Vaginal sex
    2. Oral sex
    3. Anal sex
    4. Digital penetration (or object) if done to abuse, humiliate, harass, degrade, or arouse
  3. Today: “Sexual Conduct”
    1. Intentional touching of genitalia, buttocks, breast, with intent to abuse, humiliate, harass, degrade, arouse (under or over clothing)

f. Force

  1. Definition: physical force sufficient to overcome, restrain, or injure the victim
  2. U.S. v. Buckley: Boyfriend of victim’s stepsister. She said she wanted him to stop and tried to push him off.
    1. Key fact: she tried to push him off
    2. Timing issue
      1. Doesn’t matter if he had already started the sexual act; just at some point during the act there is force
  3. Threats
    1. U.S. v. Denjen: Defendant is a lieutenant at a prison and the victim was an isolated inmate pending her trial. He was charged with forcible sexual assault.
      1. Issue: was force used?
      2. Holding: force was used
      3. Threats
        1. The use of a threat of harm is sufficient to coerce or compel submission by the victim = force
    2. the force does not have to be a part of the sexual act itself
      1. force before is sufficient
      2. used in order to make the consent happen
    3. in this case
      1. he spreads her legs with his body
      2. done to make the contact
      3. pushed her back to make the contact
      4. grabbed her jumpsuit/pinned her down with his weight
      5. trapped in a cell with him in the doorway and she was isolated

g. Fraud and Rape Law

  1. 2 types
    1. Fraud in the factum
    2. Fraud in the inducement
  2. Boro v. Superior Court: The defendant claims to be a doctor and plays on fear to get the victim to have intercourse with him. He lies saying that the only way to cure her is to have sex with someone that has been injected with the serum.
    1. Key: she consented to the act itself
    2. Fraud in the factum: deceived as to the act = rape
    3. Fraud in the inducement: know of the act, deceived as to another issue = not rape
    4. Fraud in the inducement doesn’t apply to doctors
      1. Some jurisdictions create this distinction
  3. People v. Pham: Chiropractor touched several women inappropriately during their treatment. He was charged with sexual battery by fraud
    1. No requirement that a doctor state the touching was for a medical purpose → they were in his office for medical treatment, it should all be medical touching
    2. Fraud in the inducement and fraud in the factum still exist
      1. Special exception

h. Consent

  1. Express consent: not required, can be implied consent
    1. Don’t look at express words only
    2. Implied consent is allowed
  2. Consent has to be voluntary
    1. Intoxication (influenced or free will?)
    2. History of the parties (abuse history → influence)
  3. Rejection does not need to be repeated
    1. Victim does not have to repeat refusal at each stage (the no stands)
  4. Knowledge of the lack of consent?
    1. Does the defendant need to know of the non-consent?
    2. Prevailing approach: do not have to prove the defendant’s knowledge
      1. Just knowledge of the sexual act
  5. Mistake regarding consent?
    1. Divided courts
    2. Courts that say knowledge by the defendant is required also say mistake is a defense
  6. State v. Way (NC): Government says there was no consent ever given. The defendant says consent was given until there was pain.
    1. Jury question: what if she initially agrees to the act but withdraws consent during?
      1. Trial judge:
        1. After withdrawing of consent, continuation is rape
        2. Defendant is convicted
    2. Defendant appeals saying the instruction should have been the opposite
    3. Supreme Court of NC says the only thing they need is consent to penetration, after that it is not rape
      1. Look at the moment of penetration, was consent given?
    4. Was just overturned and we are no longer the last state that follows this

i. “Statutory Rape”

  1. Two general categories
    1. Age-based (difference in age)
    2. Position-based (power imbalance)
      1. Ex. Position of authority over a kid
  2. No force and consent provided so it is not traditional forcible sexual assault
  3. Generally, didn’t exist at common law
  4. The purpose is to protect children and recognize they are unable to effectively consent
  5. NC: consenting age is 16
    1. NC Sexual Activity with a Student Law
      1. Defendant is a teacher, administrator, student teacher, coach, or school safety officer
      2. Engages in vaginal intercourse or other sexual conduct
      3. With a student
      4. At any time while the student and defendant were in the same school, but before the victim stopped being a student
  6. State v. Jabowski: 15-year-old victim; 35-year-old defendant. The victim produced evidence that she was 19. Defendant tried the affirmative defense of fraud.
    1. Issue: is intentional misrepresentation of age a defense to statutory rape
      1. No, it is not
    2. Statute says mistake is not a defense
      1. He tried to say fraud is different because it is intentional deception
    3. Only mens rea required: you knew you were having sex = strict liability crime
    4. Avoids complexities for the protection of children (public policy)
      1. The risk should always be on the adult
    5. This is the majority rule
      1. Other courts have adopted fraud as a defense (affirmative defense)
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