The Right to Be Hurt. Testing the Boundaries of Consent
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Criminal Procedure University of the Pacific; Cm George School of Law
McGeorge Law Review Volume 27 | Issue 2 Article 16 1-1-1996 Criminal Procedure University of the Pacific; cM George School of Law Follow this and additional works at: https://scholarlycommons.pacific.edu/mlr Part of the Legislation Commons Recommended Citation University of the Pacific; McGeorge School of Law, Criminal Procedure, 27 Pac. L. J. 603 (1996). Available at: https://scholarlycommons.pacific.edu/mlr/vol27/iss2/16 This Greensheet is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusion in McGeorge Law Review by an authorized editor of Scholarly Commons. For more information, please contact [email protected]. Criminal Procedure Criminal Procedure; admissibility of voluntary intoxication Penal Code § 22 (amended). SB 121 (Thompson); 1995 STAT. Ch. 793 Existing law provides that when a specific intent crime' ischarged, evidence of voluntary intoxication2 will be admissible to negate the formation of the required intent? However, when a general intent crime4 is charged, existing law does not allow the admission of voluntary intoxication to negate the formation of the required intent.5 Existing law further provides that voluntary intoxication is not admissible to negate a defendant's capacity to form any requisite mental state.6 Under prior law, voluntary intoxication would be admissible as to whether 1. See People v. Hood, I Cal. 3d 444,457,462 P.2d 370,378, 82 Cal. Rptr. 618,626 (1969) (stating the general rule that a crime is one of specific intent if the definition of the crime requires that the defendant intend to do a further act or achieve an additional result); see also CAL. -
Milatz V. City of Cincinnati, Ohio
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO MARGARET MILATZ, APPEAL NO. C-180272 : TRIAL NO. A-1603564 Plaintiff-Appellant, : vs. O P I N I O N. : CITY OF CINCINNATI, OHIO, : CINCINNATI USA REGIONAL CHAMBER OF COMMERCE, : and : LOUD AND CLEAR, INC., : Defendants-Appellees. : Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: September 27, 2019 Brannon & Associates, Dwight D. Brannon and Matthew C. Schultz, for Plaintiff- Appellant, Paula Boggs Muething, City Solicitor, and Peter J. Stackpole, Deputy City Solicitor, for Defendant-Appellee City of Cincinnati, Ohio, Douglas J. May, for Defendant-Appellee Cincinnati USA Regional Chamber of Commerce, Reminger Co., L.P.A., and Ian D. Mitchell, for Defendant-Appellee Loud and Clear, Inc. OHIO FIRST DISTRICT COURT OF APPEALS BERGERON, Judge. {¶1} A night at Oktoberfest in downtown Cincinnati went awry when a patron fell and injured herself. As the culprit for the fall, the patron zeroed in on a safety utility box (placed over wires on the ground to prevent people from tripping), which appeared haphazardly assembled when the patron returned to the scene a day after the accident. In the ensuing lawsuit, the trial court granted summary judgment based on the “open and obvious” nature of the box—a conclusion that the plaintiff does not seriously dispute at this point. Instead, she claims that attendant circumstances distracted her attention, thereby granting her entitlement to a trial. But her position would represent a substantial expansion of the attendant- circumstances doctrine, which is a step we are unwilling to take on this record, particularly in light of the lack of evidence of actual causation. -
Dressler Criminal Law Outline
DRESSLER CRIMINAL LAW OUTLINE I. INTRODUCTORY POINTS A. Sources of Criminal Law. 1. Common Law. 2. Statutes Derived from Common Law. 3. Model Penal Code. 4. (Bill of Rights) B. Criminal Law v. Civil Law 1. Criminal a. Defendant is punished (incarcerated) b. The criminal conviction itself says defendant is a moral wrongdoer. It is a condemnation by the community/ “a morality play.” → (Moral blameworthiness) • Usually about things you are not supposed to do as opposed to things you must do • 2. Civil a. Defendant pays victim. (compensation) b. Defendant is not morally stigmatized. (tort claims) C. Theories of Punishment. 1. Retributivism “Is it more about desert” a. People should get what they deserve. b. Humans have free will. If they choose to do wrong, it is appropriate to punish them. c. Looks backwards. Only punishes to the extent of the wrongdoing. d. Justice for the victim • The moral desert of an offender is a sufficient reason to punish him or her which is a necessary condition of punishment • Wouldn’t want to punish someone mentally ill bc they are not morally culpable • Rests on moral culpability 2. Utilitarianism – “What good does it do” • Focuses on what punishing that particular person accomplishes a. All forms of pain are bad. Punishment is not good, but neither is crime. Punishment is proper if imposition of pain will reduce the likelihood of future crimes. b. Punishment is justified in so far as it produces some net social benefit. Forward Looking c. Forms of utilitarianism. i. General deterrence: ● convince the general community to avoid criminal conduct in the future ii. -
Deserved When the Wrongdoer Freely Chooses to Violate Society's Rules Ii
I. WHY PUNISH? a. Retributivism - Punishment is justified when it is deserved and only when it is deserved i. Deserved when the wrongdoer freely chooses to violate society's rules ii. By punishing the wrongdoer, society demonstrates its respect for him iii. Justification for punishment is that punishment is itself just or morally good iv. Is impartial (cf. revenge, which is emotional) v. Rebalances the scale when criminals take an unfair advantage vi. Problems w/ retributivism 1) Inequality in starting positions undercuts autonomy and equality pillars 2) Proportionality can be a problem (e.g., Hitler) vii. Mixed theory 1) Retributivism gives permission to punish; utilitarianism says how much b. Utilitarianism - Punishment justified if results in a reduction in the pain of crime that would otherwise occur i. Can satisfy revenge - otherwise ppl take the law into their own hands ii. Includes 3 purposes 1) Deterrence a) Specific deterrence - punish to keep the specific person from repeating crime b) General deterrence - punish to convince general community not to commit crime c) Want optimal deterrence (b/c max punishment would use too many resources) i) Want the chance of punishment x the punishment to outweigh the individual's taste for crime d) Problems w/ deterrence i) Assumes criminals are rational actors w/ perfect information ii) Punishment doesn't always fit the crime (e.g., 3 -strikes laws) 2) Rehabilitation a) Can rehab for society's benefit or for the criminal's benefit b) Sentence according to how long it takes to rehab c) Problems -
Criminal Law Outline Rachel Barkow Spring 2014
CRIMINAL LAW OUTLINE RACHEL BARKOW SPRING 2014 TABLE OF CONTENTS I. Introduction A. The Criminal Justice System in the US B. The Role of the Prosecutor C. The Role of the Jury D. What to Punish? E. The Justification of Punishment II. Building Blocks of Criminal Law A. Legality B. Culpability and Elements of the Offense 1. Actus Reus/Omissions 2. Mens Rea a) Basic Conceptions and Applications b) Mistake of Fact c) Strict Liability d) Mistake of Law and the Cultural Defense III. Substantive Offenses A. Homicide and the Grading of Offenses 1. Premeditation/Deliberation 2. Provocation 3. Unintentional Killing 4. Felony Murder 5. Causation B. Rape 1. Introduction 2. Actus Reus 3. Mens Rea C. Blackmail IV. Attempts A. Mens Rea B. Actus Reus/Preparation V. Group Criminality A. Accountability for the Acts of Others 1. Mens Rea 2. Natural and Probable Consequences Theory 3. Actus Reus B. Conspiracy 1. Actus Reus and Mens Rea 2. Conspiracy as Accessory Liability 3. Duration and Scope of a Conspiracy 4. Reassessing the Law of Conspiracy 1 C. Corporate Criminal Liability VI. General Defenses to Liability A. Overview B. Justifications 1. Self Defense 2. Defense of Property 3. Necessity C. Excuses 1. Insanity 2. Expansion of Excuses 3. Duress VII. The Imposition of Criminal Punishment A. Sentencing B. Proportionality 2 INTRODUCTION Criminal Justice System in the U.S. I. Mass Incarceration and its Causes and Consequences A. Mass incarceration • Massive in terms of total numbers • Massive in terms of disproportionate impact on people of color B. Causes -
Felony-Murder Rule a Doctrine at Constitutional Crossroads Nelson E
Cornell Law Review Volume 70 Article 3 Issue 3 March 1985 Felony-Murder Rule a Doctrine at Constitutional Crossroads Nelson E. Roth Scott E. Sundby Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Nelson E. Roth and Scott E. Sundby, Felony-Murder Rule a Doctrine at Constitutional Crossroads , 70 Cornell L. Rev. 446 (1985) Available at: http://scholarship.law.cornell.edu/clr/vol70/iss3/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. THE FELONY-MURDER RULE: A DOCTRINE AT CONSTITUTIONAL CROSSROADS Nelson E. Roth* and Scott E. Sundby** INTRODUCTION Few legal doctrines have been as maligned and yet have shown as great a resiliency as the felony-murder rule. Criticism of the rule constitutes a lexicon of everything that scholars and jurists can find wrong with a legal doctrine: it has been described as "astonishing" and "monstrous,"' an unsupportable "legal fiction," 2 "an unsightly wart on the skin of the criminal law,"'3 and as an "anachronistic rem- nant" that has " 'no logical or practical basis for existence in mod- ern law.' "4 Perhaps the most that can be said for the rule is that it provides commentators with an extreme example that makes it easy to illustrate the injustice of various legal propositions. 5 Despite the widespread criticism, the felony-murder rule per- sists in the vast majority of states. -
Mens Rea Reform: a Brief Overview
Mens Rea Reform: A Brief Overview Richard M. Thompson II Legislative Attorney April 14, 2016 Congressional Research Service 7-5700 www.crs.gov R44464 Mens Rea Reform: A Brief Overview Summary Criminal justice reform has played a major role in the congressional agenda over the past several Congresses, with sentencing reform bills making up the majority of the legislative action on this issue. However, some reformers have also highlighted the need to strengthen the mens rea requirements in federal law. Mens rea, Latin for “guilty mind,” is the mental state the government must prove to secure a conviction. For instance, some laws require that the prosecution demonstrate that the defendant intentionally have committed the act in question—that is, committing the act with the conscious desire for the harmful conduct to occur—while others require that the act be done knowingly or with reckless disregard of the harm it may pose. Some modern statutes require no mens rea at all; these are commonly referred to as strict liability offenses. Unlike the Model Penal Code, which includes four categories of “culpability” or moral blameworthiness, the Federal Criminal Code, found largely in Title 18, does not create uniform mens rea standards. Instead, each statute may or may not contain a mens rea element depending on the statute. Supplementing the statutory text, the Supreme Court has developed a set of presumptions to apply when a mens rea term is omitted. However, the Court has applied these rules in a somewhat ad hoc fashion depending on a variety of factors, including the origin of the offense in question (e.g., common law or statutory); the severity of the penalty imposed; and the purpose behind the law (e.g., penal or regulatory). -
Felony Murder and Mens Rea Default Rules: a Study in Statutory Interpretation
University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship 2000 Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation Guyora Binder University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the Criminal Law Commons Recommended Citation Guyora Binder, Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation, 4 Buff. Crim. L. Rev. 399 (2000). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/284 Published as Guyora Binder, Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation, 4 Buff. Crim. L. Rev. 399 (2000). © 2000 by the Regents of the University of California. Copying and permissions notice: Authorization to copy this This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. BINDERMACRO 1/10/01 2:23 PM Felony Murder and Mens Rea Default Rules: A Study in Statutory Interpretation Guyora Binder* Introduction.............................................................................399 I. The Felony Murder Rule .................................................405 II. The Model Penal Code Scheme .......................................408 A. The Default Rule Scheme.........................................408 B. The Felony Murder Scheme.....................................412 III. Default Rules in the States ..............................................416 IV. Culpability Terms in Felony Murder Statutes ................430 V. The Interpretive Problem: Strategies of Evasion............437 A. The Nonpervasive Default Rule Strategy................438 B. -
Mens Rea for Sexual Abuse: the Ac Se for Defining the Acceptable Risk Eric A
Journal of Criminal Law and Criminology Volume 99 Article 1 Issue 1 Fall Fall 2008 Mens Rea for Sexual Abuse: The aC se for Defining the Acceptable Risk Eric A. Johnson Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Eric A. Johnson, Mens Rea for Sexual Abuse: The asC e for Defining the Acceptable Risk, 99 J. Crim. L. & Criminology 1 (2008-2009) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/09/990 1-0001 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 99, No. I Copyright © 2009 by Northwestern University, School of Law Primed mnU.S.A. CRIMINAL LAW MENS REA FOR SEXUAL ABUSE: THE CASE FOR DEFINING THE ACCEPTABLE RISK ERIC A. JOHNSON* The persistence of strict criminal liability for child sexual abuse is attributable, at least in part, to the shortcomings of the existing alternatives, namely, the recklessness and criminal negligence standards. These two standards requirejuries to define the acceptable level of risk on a case-by-case basis. Juries are ill-equipped to make this calculation in sexual abuse cases, however, and their efforts to do so almost invariably are skewed by evidence of the victim's unchastity. This Article first explores the shortcomings of the recklessness and criminal negligence standards in this setting, and then attempts to develop a viable alternative. -
Rape and Force: the Forgotten Mens Rea, 4 Buff
Penn State Law eLibrary Journal Articles Faculty Works 2001 Rape and Force: The orF gotten Mens Rea Kit Kinports Penn State Law Follow this and additional works at: http://elibrary.law.psu.edu/fac_works Part of the Criminal Law Commons Recommended Citation Kit Kinports, Rape and Force: The Forgotten Mens Rea, 4 Buff. Crim. L. Rev. 755 (2001). This Article is brought to you for free and open access by the Faculty Works at Penn State Law eLibrary. It has been accepted for inclusion in Journal Articles by an authorized administrator of Penn State Law eLibrary. For more information, please contact [email protected]. Rape and Force: The Forgotten Mens Rea Kit Kinports* I. INTRODUCTION The crime of rape has traditionally been defined to require proof of both force on the part of the defendant and lack of consent on the part of the victim. In the words of Blackstone, rape is "carnal knowledge of a woman forcibly and against her will."1 This traditional "conjunction of force and nonconsent"2 has recently been subject to a good deal of criticism. While some commentators advocate that the law of rape focus exclusively on the presence of force, * Professor, University of Illinois College of Law. I am greatly indebted to Nicole d'Arcambal for her valuable research assistance in connection with this article and to Marcia Baron for her helpful comments on an earlier draft. 1. 4 William Blackstone, Commentaries on the Laws of England *210. For a description of earlier English common law definitions of rape, which defined the crime solely in terms of nonconsent, see infra note 155. -
Statutory Interpretation and the Federalization of Criminal Law Peter J
Journal of Criminal Law and Criminology Volume 86 Article 1 Issue 4 Summer Summer 1996 Statutory Interpretation and the Federalization of Criminal Law Peter J. Henning Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Peter J. Henning, Statutory Interpretation and the Federalization of Criminal Law, 86 J. Crim. L. & Criminology 1167 (1995-1996) This Supreme Court Review is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/96/8604-1167 THE JOURNAL OF CRIMINsAL LAw & CRIMINoLoGY Vol. 86, No. 4 Copyright © 1996 by Northwestern University, School of Law Printed in U.S.A. SUPREME COURT REVIEW FOREWORD: STATUTORY INTERPRETATION AND THE FEDERALIZATION OF CRIMINAL LAW PETER J. IIENNING* A wiser course than judicial legislation, I submit, is simply to adopt a literal, reasonable construction of the text that Congress drafted.' One of the striking features of the criminal law is the accelerating "federalization" of prosecutions. The federal code has over 3,000 pro- visions that permit the United States to pursue criminal charges,2 and these statutes in large measure duplicate crimes that the states can prosecute. 3 Chief Justice Rehnquist has warned that the burgeoning federal criminal caseload may soon overwhelm the federal judicial sys- tem.4 Yet, the Supreme Court's overall docket is shrinking, even with the crush of criminal prosecutions purportedly overwhelming the lower federal courts. -
Criminal Law Outline I. Basic Principals
Criminal Law Outline, Spring 2015, Criminal Law Outline I. Basic Principals A Crime is a moral wrong that results in some social harm. A single harm may give rise to both civil and criminal liability. Note OJ Simpson trials. However, there are important points of differentiation between civil and criminal offenses. (1) The Nature of the wrong: Civil there is some loss to the individual. In a criminal case the type of harm in general is a social harm. Really looking at the community in general in criminal harm to social fabric, which affect your sense of security, and thus justify the moral condemnation of the community. (2) The purpose of the legal action: Civil is to compensate loss. Criminal has multiple purposes: punishment, incapacitation, or deterrence. (3) Person brining the suit: The victim brings the suit in the civil case. In a criminal case, it is not the victim, the harm is committed against the people. The criminal system the power to bring a case rests exclusively in the government’s hands. (4) Interests represented in court: The district attorney chooses whether to bring a case or not. (5) The sanction: Criminal 2 types of sanctions: (1) being declared guilty—social stigma; and (2) punishment itself—fine, incarceration, etc. Four Conditions Necessary to have a penalty: 1. The primary addressee who is supposed to conform his conduct to the direction must know: a. Of its existence. b. Of its content in relevant respect. 2. He must know about the circumstances of fact, which make the abstract terms of the direction appropriate in particular instance.