CRMLAW 1 Study Guide (2013-14 Mears)
- Atlanta's John Marshall Law School
- Criminal Law
- Criminal Law 1
- CRMLAW 1 Study Guide (2013-14 Mears)
Last Modified: 2014-06-29
Unlawful killing of a human being with malice aforethought
* There are external consequences that injure somebody else physically or psychologically
* Thinking about committing a crime or being angry enough
to commit a crime is not a crime
* Victimless crimes that injure only the offender are still crimes if it can be shown that there are consequences, like harm to families, friends, or the moral fabric of society.
has to be illegal
Things less serious than crimes are called "wrongs" and although wrongs may be frowned upon, they do not consist of criminal behavior.
Instead, crimes are forbidden things for which the evil-doing has been specified in advance.
A crime always requires action, or people doing things. Inaction when the law calls for action is a crime.
Ex: if parents do not provide adequate necessities for their children, this behavior of omission is just as much a crime as someone who does something actively.
A crime always has certain mental aspects, such as intent and purpose, but also recklessness and negligence.
These are all mental states, short of motive, that the law recognizes as worthy of blame
The act and the intent must accomplish something
A crime must lead directly or indirectly to the harm w/o too much delay
Actual cause is direct and proximate cause is indirect
- Logic must be used to determine the fairness of how far back in time the setting in motion of a chain of events resulted in foreseeable harm.
The criminal conduct (actus reus) and criminal intent (mens rea) must occur together at about the same time.
This element refers mostly to the circumstances surrounding the criminal behavior, such as whether motive was accompanied by opportunity and means
Law must provide punishment
This is the definition of law as having some authority behind it, but it clearly requires some sort of penalty sanction, whether retribution, restitution, compensation, regulation, or rehabilitation
Duncan v. Louisiana
6th amendment right to a speedy and public trial by an impartial jury of the state and district where the crime was committed
Proof of Guilt and Presumption of Innocence
Coffin v. US
Coffin v. US: the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law
It is stated as unquestioned in the textbooks, and has been referred to as a matter of course in the decisions of this court and in the courts of the several states
In re Winship
The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error.
The standard provides concrete substance for the presumption of innocence--that bedrock "axiomatic and elementary" principle whose "enforcement lies at the foundation of the administration of our criminal law."
Owens v. State
This case presents a classic case of circumstantial evidence. The appeal was from a finding of guilt based solely on circumstantial evidence.
The driver's presence behind the wheel of a vehicle on a private driveway with the lights on and the motor running. It can reasonably be inferred that such individual either
1) had just arrived by way of the public highway or
2) was just about to set forth upon the public highway
If he had just arrived, he would be guilty
If he were just starting to drive but still in the driveway, he would not be guilty
Evidence to break the tie: totality of the evidence
1. Not his driveway
2. motor of the car was running
3. someone called police to report a car being driven in the neighborhood
State v. Ragland
No matter how compelling the evidence, a trial court may not direct a verdict against a defendant in a criminal case...an that in addition, appropriate and proper charges to a jury are essential for a fair trial...
.At the heart of the guarantee of a fair trial is the "jury's impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions
Nel v. State
While "the jury does possess a de facto power of nullification, i.e., a power to acquit the defendant regardless of the strength of the evidence against him, it nonetheless is true that if the evidence proves the defendant guilty beyond a reasonable doubt, it is the jury's duty to convict
Jury nullification may be appropriate as a limited topic for closing argument
Laws must exist and those laws should be obeyed by everyone, including those responsible for enforcing them
Laws must be published and made public
Laws must be prospective so that the effect of the laws only take place after the law has been enacted
Laws must be written clearly in order to avoid unfair or biased applications
Laws must avoid contradictions
Laws must not command a person to do or perform impossible tasks
Laws should remain constant over time, however laws should also allow for revisions when the underlying social and political circumstances related to the law have changed
Laws should be enforced consistently
Defines how the crime is defined and the character of the crime which will be charged--if a law defines a crime, it is defining a prohibited act
Deals with what a community or society deems to be a "Rule of the Congregation"
Most substantive laws come from the states--deemed to be acceptable for defining conduct
1. Guilty as charged--defendants may at times plead "nolo contender" which means that they do not contest the charges but do not plead guilty to the charges either (this is not an adjudication rendered by a judge or juror, but a procedural plea used by an accused.)
2. Guilty of a lesser included crime
Georgia Adjudication cont'd
3. Guilty but mentally ill (bipolar, schizophrenic, etc.)--doesn't change the punishment in GA; were able to form intent
4. Guilty but mentally retarded (in death penalty cases)---lacks mental capacity; Georgia won't execute
5. Not Guilty by reason of Insanity--insanity is a legal term meaning an individual does not have the capacity to understand the difference between right and wrong
Georgia Adjudication cont'd
Four Principle Categories of Law
1. Natural Law--laws set by nature and that therefore has validity everywhere
Harper v. State: once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, w/o receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature
Four Principle Categories of Law cont'd
2. The Law of the Nations---law which exists between nations or states and the obligations corresponding to those laws
3. Public Law---law which governs the relationship between citizens and the state
4. Common Law---law of abstract rules created by judges and applicable to the various cases before them.
Any social harm defined and made punishable by law
16-2-1: a crime is a violation of a statute in which there is a joint operation of an act or omission to act and intention or criminal negligence (an act or failure to act which demonstrates a willful, wanton, orreckless disregard for the safety of others who might reasonably be expected to be injured thereby
Coleman v. State
A crime is a violation of a statute of this State in which there is a union and joint operation of an act, or omission to act, and intention
Intent is an essential element of any crime and must be proven by the State beyond a reasonable doubt. A person will not be presumed to act with criminal intent, but the trier of fact may find that intention exists, or the absence thereof, upon a consideration of the words, conduct, demeanor, motive and other circumstances connected with the act for which the defendant if being prosecuted.
Types of Intent
"General Intent" means intent in the sense that a person intends consequences of his voluntary physical actions.
"Specific criminal intent" refers to state of mind that is thought culpable (Holloway v. McElroy)
A person is not presumed to act with criminal intention, but the existence of intent can be foundby considering the words, conduct, demeanor, motive and other circumstances connected with the act in question (16-2-6)
Two masters of morals and legislation (how we come up with legislation)
1. What is the general justifying aim of the criminal justice system?
2. To whom may punishment be applied?
3. What level of punishment is permissible?
Justifications for Punishment
a. General deterrence--a person is punished in order to convince the general community to forego criminal conduct in the future
b. Specific deterrence--a person's punishment is meant to deter future misconduct by that person; by incapacitating someone, and by intimidating that person from committing a crime again.
c. Rehabilitation--reform the wrongdoer, rather than secure compliance through fear and punishment
a. Public vengeance: because the criminal has harmed society, it is right for society to "hurt him back." Jus talionis--"eye for an eye"
b. Protective retribution: punishment is a means of securing a moral balance in society; rules benefit and burden everyone in a society. For those who disregard the rules, they are benefitting without accepting burdens and are free riders. A criminal owes a debt to society
c. Victim vindication: punishment is a way to right a wrong
a. Educative: inform individuals that society considers specific conduct improper
b. Expressive: channels community anger away from personal vengeance.
c. Condemnation: stigmatizes the offender for his offense.
Theories of Punishment
Consequentialist: a morally right action is one that produces a good outcome, or consequence. A forward looking approach, i.e., what does the punishment accomplish.
- provides that society should punish people because of the positive effects that this has on society (Utilitarian approach)
Deontological: action which is a duty or a moral obligation.
- provides that society should punish, may not make the world a better place, but it is the right thing to do anyway. (Retributive approach)
- general deterrence
- individual deterrence
- US v. Comstock--necessary and proper clause
- McCulloch v. Maryland--must be within scope of constitution
- assumption of diminished moral capacity
- is rehabilitation available to everyone?
- is the expense justified?
- retribution is divisive, so rehabilitation is justified
Bentham's Theories cont'd
Moore's Article "Retributive Justifications for Punishment"
1. Lex Talionis--an eye for an eye
2, Moral balance
3. Rights of the Victims
4. Effect on criminals
a. The Queen v. Dudley Stephens
b. People v. Du
Queen v. Dudley and Stephens
where a private person, acting on his own judgment, takes the life of another, he is guilty of murder, unless the act can be justified by self-defense.
the defendants were not protecting themselves against any act of the victim.
People v. Du
"Objective of sentencing offenders"
a. to protect society
b. to punish the offender
c. to encourage the offender to be law-abiding
d. to deter others (general and individual deterrence)
e. to isolate offender (incapacitation)
f. to secure restitution for the victim (retribution and restorative)
g. to seek uniformity in punishment
Immanuel Kant "The Philosophy of the Administration of Punishment"
A. Poena Forensis--Judicial Punishment
B. Poena Naturalis--Natural Punishment
written law created by a legislature or other governing authority such as the executive branch of government in response to a perceived need to:
- clarify the functioning of government
- improve civil order
- codify existing law
A. Model Penal Code
B. Official Code of Georgia Annotated Title Sixteen
The Need for Statutory Clarity:
In Re Banks: 15 year old boy convicted of breaking the "peeping tom" statute: secretly peeping in a room occupied by a female person, any person who shall peep secretly into any room occupied by a female person shall be guilty of a misdemeanor and upon conviction shall be fined or imprisoned in the discretion of the court
B. The harm is societal harm
- Presumption of constitutionality--there is a presumption that a statute is constitutional and must be so held unless it is in conflict with some constitutional provision of the State or Federal Constitutions
- A criminal statute must be sufficiently definite--must be sufficiently construed
1. Rule of Lenity
U.S. v. Foster
- GA Power v. Monroe County--to define the legislative intent, the court considers the purpose of the statute and its impact on the body of law as a whole. The court also considers the law as it existed before the statute was passed.
- White v. State--according to the Rule of Lenity, "where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of the two penalties administered
Rules of Statutory Interpretation
A. statutes should be internally consistent
B. when the legislature enumerates an exception to a rule, one can infer that there are no other exceptions;
C. when the legislature includes limiting language in an earlier version of a statute, but deletes it prior to enactment of the statute, it can be presumed that the limitation was not intended by the legislature;
D. the legislature is presumed to act intentionally and purposely when it includes language in one section but omits it in another;
E. where legislation and case law conflict, courts generally presume that legislation takes precedence over case law
What is a Crime?
A wrongdoing classified by the state or congress as a felony or misdemeanor--word originates from the Latin "crimen"--"I judge"
Crimes are "mala in se", or bad in themselves, and these include all offences against the moral law; or
"mala prohibita", bad because prohibited, as being against sound policy which, unless prohibited, would be innocent or indifferent.
What is a crime?
A crime is any act that violates the law
Common law jurisdictions define "act" differently but generally an act is a "bodily movement whether voluntary or involuntary"
Violent crime: killing, force, violence, threats of violence
Property crime: taking, depriving, trespass, converting
Crimes against Morality: fornication, seduction, illicit behavior
Crimes against Public Order: disorderliness, threats to public safety and peace
Crime by Government: genocide, torture, brutality, civil rights violations
Hate Crime: bias, prejudice, discrimination
Organized Crime: illegal goods and services
White Collar: deception, price fixing, gouging, non-violent illicit financial gain
Occupational: opportunism, misuse of professional capacities
Victimless: addiction, some consensual sex acts
High Technology: computerized misrepresentation
Common Law Crimes
A. the physical or external part of the crime
- conduct or omission of conduct--if the law says you must do something like pay your taxes, and you don't do it, that is actus reus
- the harmful result of the conduct or omission of conduct--the voluntary and wrongful act or omission that constitutes the physical components of a crime. Because a person cannot be punished for bad thoughts alone, there can be no criminal liability without actus reus
Martin v. State
1. Criminal law punishes conduct and not mere thoughts.
Under the plain terms of this statute, a voluntary appearance is presupposed. The rule has been declared, and we think it sound, that an accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer.
State v. Utter: Utter was convicted of manslaughter for killing his son; used automatism as his defense.
Automatism is when a person, because of a blow to the head or for some other reason, loses consciousness but continues to perform something akin to "automatic pilot," without being aware of it, or remembering it later. (State v. Pope)
McClain v. State defined automatism as the existencein any person of behavior of which he is unaware and over which he has no conscious control....sleep walking, hypnotic states, metabolic disorders, epilepsy, etc.
"Voluntary" is included in the definition of the word "act"
The law presumes that every person intends the natural and probable consequences of his own acts.
An act must be a willed movement or the omission of a possible and legally required performance. This is essential to the Actus Reus rather than to the Mens Rea. "A spasm is not an act"
If a person is in fact unconscious at the time he commits an act which wouldotherwise be criminal, he is not responsible therefor.
The absence of consciousness not onlyprecludes the existence of any specific mental state, but also excludes thepossibility of a voluntary act without which there can be no criminalliability.
1) An‘act’ committed while one is unconscious is in reality no act at all. It ismerely a physical event or occurrence for which there can be no criminalliability. However, unconsciousness does not, in all cases, provide a defenseto a crime. When the state of unconsciousness is voluntarily induced throughthe use and consumption of alcohol or drugs, then that state of unconsciousnessdoes not attain the stature of a complete defense. Thus, in a case such as thepresent one where there is evidence that the accused has consumed alcohol ordrugs, the trial court should give a cautionary instruction with respect tovoluntarily induced unconsciousness.
1) An act committed while one isunconscious is in reality no act at all. It is merely a physical event or occurrence for which there can be nocriminal liability.
1. Criminallyinsane defendants are considered to have a permanent or semi-permanent mentalincapacity, making rehabilitation and institutionalization appropriateremedies. Conversely, sleepwalking defendants do not suffer from any permanentmental disorders and receive no benefit from rehabilitative treatment.
Ga. Code Ann., 16-3-4
1) A person shall not be found guilty ofa crime when, at the time of the act, omission, or negligence constituting thecrime, the person, because of involuntary intoxication, did not have sufficientmental capacity to distinguish between right and wrong in relation to such act.
(a) In Georgia, “a person may not be foundguilty of a crime if, at the time of the act, omission, or negligenceconstituting the crime, the person, because of mental disease, injury, orcongenital deficiency, acted because of a delusional compulsion as to the actwhich overmastered the will to resist committing the crime.”
Smith v. State
- McClain v. State
- Pope v. State: Marvin Johnson, a former light-heavyweight champion of the world, qualified as an expert in boxing and boxing injuries, offered to testify about automatism
People v. Beardsley
1) Legal duty versus moral duty.—this rule of law is always basedupon the proposition that the duty neglected must be a legal duty, and not amere moral obligation. It must be a duty imposed by law or by contract, and theomission to perform the duty must be the immediate and direct cause of death.
(a) Inthe absence of a legal duty it is undoubtedly the moral duty of every person toextend to other assistance when in danger.
(b) Where one person owes another alegal or contractual duty, any omission of the duty resulting in the death ofthe party to whom it was owing will render the other chargeable with manslaughter.
People v. Beardsley cont'd
1) The relation existing between a manand his paramour is not such a relation as will raise any duty obliging him tocare for her after she takes morphine, resulting in unconsciousness anddeath, while they were together, and both are more or less intoxicated.
a) Paramour “A lover, especially onein an adulterous relationship.”
Jones v. United States
1) One can be held criminally liable forbreach of a legal duty, where a statute imposes a duty to care for another,where one stands in a certain status relationship to another, where one hasassumed a contractual duty to care for another, or where one has voluntarilyassumed the care of another and so secluded the helpless person as to preventothers from rendering aid.
a) Where a statute imposes a duty to act.
b) Where a person stands in a certainstatus imposes a duty.
c) Where one has assumed a contractualduty to care for another.
d) Where one has voluntary assumed thecare of another and so secluded the helpless person as to prevent others from renderingaid.
Barber v. Superior Court
1) Difference between Act and Omission
2) Murderis the unlawful killing of a human being, with malice aforethought. Malice may be express or implied. It isexpress when there is an intent unlawfully to take any life. It isimplied when the circumstances show an abandoned and malignant heart.
3) Theuse of the term “unlawful “ in defining a criminal homicide is generally todistinguish a criminal homicide from those homicides which society has determinedto be ”justifiable“ or ”excusable.
4) Insummary we conclude that the petitioners' omission to continue treatment underthe circumstances, though intentional and with knowledge that the patient woulddie, was not an unlawful failure to perform a legal duty. In view of ourdecision on that issue, it becomes unnecessary to deal with the further issueof whether petitioners' conduct was in fact the proximate cause of Mr.Herbert's ultimate death.
Robinson v. California
a. Status is not a crime.—all they couldshow was that he was an addict; no mens or actus reus
i. However,remember the Comstock case (convicted and kept in jail after serving every dayof his sentence because he was deemed to be addicted to child pornography)!
b. State law which made “status” ofnarcotic addiction a criminal offense for which offender might be prosecuted atany time before he reformed, and upon conviction required imprisonment of atleast 90 days in a county jail, inflicted a “cruel and unusual punishment,” inviolation of the Fourteenth Amendment.
c. Itis unlikely that any State at this moment in history would attempt to make it acriminal offense for a person to be mentally ill, or a leper, or to beafflicted with a venereal disease. A State might determine that the generalhealth and welfare require that the victims of these and other humanafflictions be dealt with by compulsory treatment, involving quarantine,confinement, or sequestration. But, in the light of contemporary humanknowledge, a law which made a criminal offense of such a disease woulddoubtless be universally thought to be an infliction of cruel and unusualpunishment in violation of the Eighth and Fourteenth Amendments.
i. However, remember the Comstock case!!!
a. Two Types of Crimes or Offenses
1) Murder, arson, kidnapping, etc.
1) Specific Dangerous Behavior
A. Guilty Mind or aWrongful Purpose
1. Mens rea means guilty mind, the mental state of a person who hascommitted a crime.
· Aninjury caused w/o mens rea might be grounds for civil liability but typicallynot for criminal
Regina v. Cunningham
Equating Malicious to Wicked
b. "In any statutory definition of a crime, malice must be taken notin the old vague sense of wickedness in general but as requiring either (1) Anactual intention to do the particular kind of harm that in fact was done; or(2) recklessness as to whether such harm should occur or not (i.e., the accusedhas foreseen that the particular kind of harm might be done and yet has gone onto take the risk of it). It is neither limited to nor does it indeed requireany ill will towards the person injured."
People v. Conley
Sandstrom v. Montana
No presumption of Intent—a presumption is an assumption offact that the law requires to be made from another fact or group of facts foundor otherwise established in the action or proceeding
General Intent Crimes
Generalintent is only the intention to make the bodily movement that constitutes theact that the crime requires.
a. The term refers to whether a defendantintended deliberate, conscious, or purposeful action, as opposed to causing a prohibitedresult through accident, mistake, carelessness, or absent-mindedness.
General Intent Crimes
Wright v. State
OCGA § 16-8-7
1. “A person commits the offense of theft byreceiving stolen property when he receives, disposes of, or retains stolenproperty which he knows or should know was stolen unless the property isreceived, disposed of, or retained with intent to restore it to the owner.‘Receiving’ means acquiring possession or control ... of the property.”
2. Receiving stolen the goods, “the actus reuselement of the offense may be committed by either receiving, disposing of, or retaining stolen property.Furthermore, contrary to Wright's contention that there is no evidence as towho stole the goods, stealing is not an element of the offense
Specific Intent Crimes
Criminalintent may be inferred from conduct before, during, and after a crime inquestion. See, Scott v. State, 280 Ga. 466 (2006).
b.Three types of specific intent crimes
i. Intention to commit a specificact.
ii. Intention to commit for aspecific purpose.
i. Intention to commit with awareness ofattendant circumstances.
State v. Nations
(a) In prosecution for endangering welfareof a child under 17 years of age, evidence that defendant did not know age ofchild dancing in her bar, since she did not check identification, but was onlyaware of a high probability that child was under 17, was not sufficient toconvict defendant.
Causation: The Intent Requirement
Actual Cause (Cause-in-fact)
1. OCGA Section 16-2-1
a. Georgia’s definition of acrime.
i. A “crime” is a violation of a statute of thisstate in which there is a joint operation of an act or omission to act andintention or criminal negligence.
1) Criminalnegligence is an act or failure to act which demonstrates a willful, wanton, orreckless disregard for the safety of others who might reasonably be expected tobe injured thereby.
1. OCGA Section 16-2-2
a. A person shall not be foundguilty of any crime committed by misfortune or accident. (General intentcrime)
i. See, Hoffer v. State, 192 Ga. App. 378 (1989)
1) The state was not required to prove thatHoffer intentionally drove through a red light, or even that Hoffer knew thatthe light was red. “While criminal intent is a necessary element in thecommission of the crime for which Hoffer was prosecuted, criminal intent issimply the intent to do the act which results in the violation of the law, andnot the intent to commit the crime itself.
2) Trafficsafety offenses are usually strict liability offenses, which can be violatedwithout mens rea or guilty knowledge. Thepurpose of traffic regulations are “promulgated [to promote] the safe andexpeditious movement of vehicular traffic on the highways,” Thus, there is norequirement to prove mental fault or mens rea
Oxendine v. State
Causationis the “antecedent but for which the result in question would not haveoccurred.”
b. Aggravationversus Acceleration
c. Proofof who inflicted injury that caused death.
Proximate Cause (Legal Cause):
i. See, Welch v. State, 45 Ala. App. 657 (1970)
ii. Anact of God, i.e., an event that cannot be traced back to any humanintermediary;
i. An act of an independent third party, whichaccelerates or aggravates the harm caused by the defendant, or which causes itto occur in an unexpected manner; or
ii. An act or omission of thevictim that assists in bringing about the outcome
i. Cain v.State, 55Ga. App. 376 (1937)
1) “Whoever does awrongful act is answerable for all the consequences that may ensue in theordinary course of events, though such consequences are immediately anddirectly brought about by an intervening cause, if such intervening cause wasset in motion by the original wrong-doer, or was in reality only a condition onor through which the negligent act operated to induce the injurious result.”
2) PolicyConsiderations or Matters of Fairness (due process)
Kibbe v. Henderson
i. In orderto satisfy the constitutional requirements of due process, a criminalconviction must be supported by proof beyond a reasonable doubt of every factnecessary to constitute the crime charged. It is the essence of a fair trial and of theright to jury trial that the jury apply the reasonable doubt standard todetermine those issues of fact that bear on the elements of the offense.
1) See, In re Winship,397 U.S. 358 (1970)
ii. “A person is guilty of murder in the second degree when: Under circumstances evincing a depravedindifference to human life, he recklessly engages in conduct which creates agrave risk of death to another person, and thereby causes the death of anotherperson.”
iii. Thestate was bound to prove to the jury beyond a reasonable doubt that Kibbe had adepraved indifference regard for the victim’s life and recklessly engaged inconduct that created a grave risk of thevictim’s death, and thereby causing his death.
Velazquez v. State (Possible exam hypo)
a. Vehicular homicide is the killing of a human being by the operation of a motor vehicle byanother in a reckless manner likely to cause the death of, or great bodily harmto, another
i. Substantialfactor test versus “but-for-test”
b. “Inorder to be convicted of vehicular homicide under Georgia law, the conduct ofthe defendant must have caused the death. This requires showing that ‘thedefendant’s conduct was the “legal” or “proximate” cause, as well as the causein fact, of the death.
i. See, Pitts v. State, 253 Ga. App. 373 (2002)
Concurrence of Agreement in Time of the Elements of a Crime
State v. Rose
Defendantcharged with manslaughter for leaving the scene of an accident and therebycausing the death of another.
Application of the “but-for-test.”
i. Did the defendant’s conduct in leaving thescene of the accident cause the death or was the victim dead upon impact.
ii. If collision was the cause of death,Rose is not guilty; but if the dragging was the cause of death, Rose is guiltyof manslaughter
Homicide (no statute of limitations)
TheProtected Interest: “Human Being”
1. People v. Eulo, 63 N.Y. 2d 341 (1984)
a. Measurementof Death
i. Considering death to have occurred when there is anirreversible and complete cessation of the functioning of the entire brain,including the brain stem, is consistent with the common-law conception of death. Ordinarily, death will be determinedaccording to the traditional criteria of irreversible cardiorespiratory repose.When, however, the respiratory and circulatoryfunctions are maintained by mechanical means, their significance, as signs oflife, is at best ambiguous. Under such circumstances, death may nevertheless bedeemed to occur when, according to accepted medical practice, it is determinedthat the entire brain's function has irreversibly ceased.
a. A person may be pronounced dead by a qualified physician, by aregistered professional nurse or by a physician assistant authorized to make apronouncement of if it is determined that the individual has sustained either
i. irreversiblecessation of circulatory and respiratory function or
ii. irreversible cessation of allfunctions of the entire brain, including the brain stem.
b. The definition of death varies among the authorities.
i. “The cessation of life; theceasing to exist; defined by physicians as a total stoppage of the circulationof the blood, and a cessation of the animal and vital functions consequentthereon, such as respiration, pulsation, etc.”
1)Black's Law Dictionary (4th Ed.) p. 448
ii. “Aperson may be pronounced dead if it is determined that the person has sufferedan irreversible cessation of brain function,”
1) State v. Williams, 247 Ga. 200 (1981)
Thecessation of all vital functions without capability of resuscitation ...General death is of two kinds: death of the body as a whole (somatic orsystemic death), and death of the tissues. By the former isimplied the absolute cessation of the functions of the brain, the circulatoryand respiratory organs; by the latter the entire disappearance of the vitalactions of theultimate structural constituents of the body.”
1) Webster's New International Dictionary(2nd Ed.) p. 676
A person is guilty of criminalhomicide if he purposely, knowingly, recklessly or negligently causes the deathof another human being.
i. A person commits the offense ofmurder when he unlawfully and with malice aforethought (todefine, you must look to the statutory construction), either express orimplied, causes the death of another human being.
1) Express malice isthat deliberate intention unlawfully to take the life of another human beingwhich is manifested by external circumstances capable of proof.
(i) Malice shall be implied where no considerable provocation appears andwhere all the circumstances of the killing show an abandoned and malignantheart.
(ii) Malice is formed instantly—don’t have to havepremeditated murder for malice to be involved
2) A person also commits the offense of murderwhen, in the commission of a felony, he causes the death of another human beingirrespective of malice.
State v. Guthrie
a. Theproblem in defining homicide
· The jurors were told thatthe homicide must have been committed: unlawfully, willfully, maliciously,deliberately, and premeditatedly
· Murder in the first degree:
o The killing is done after aperiod of time for prior consideration;
State v. Guthrie
b. At common law, murder was defined as the unlawful killing ofanother human being with “malice aforethought.” The common law definition of“malice aforethought” was extremely flexible.
i. At common law there were nodegrees of murder. If the accused had no overwhelming provocation to kill, hewas equally guilty whether he carried out his murderous intent at once or aftermature reflection.
State v. Guthrie
c. The meaning of premeditated asused in the statute was essentially ‘knowing’ and intentional. Courts have consistently recognized that themental process necessary to constitute willful, deliberate and premeditatedmurder can be accomplished very quickly or even in the proverbial “twinkling ofan eye.”
Murder and Intentional Killing
Model Penal Code Definition of Murder
Divides criminal homicide into three types:
Murder 201.2: criminal homicide constitutes murder when:
- a) it is committed purposely or knowingly; or
- b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.
- such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing robbery, rape by force or intimidation, arson, burglary, kidnapping or felonious escape
Model Penal Code
3 types of homicide
Manslaughter: a killing committed recklessly:
- a) a person who consciously disregards a substantial and unjustifiable risk that the death of another human being will result from his conduct. The conduct must be a gross deviation from the standard of conduct of a law-abiding person
A killing that would otherwise be murder, committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation.
- a) a person who acts purposely, knowingly, or with extreme recklessness (i.e., committed murder), but under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.
- Reasonableness is determined from the viewpoint of a person in the defendant's situation under the circumstances as he believes them to be
Model Penal Code
3 types of Homicide
Negligent homicide: a killing committed negligently
The mens rea for criminal negligence requires that the defendant should be aware of a substantial and unjustifiable risk that the death of another human being will result from his conduct. The conduct must be a "gross deviation" from the standard of care of a reasonable person
- a) as with the common law concept of criminal negligence, the MPC requires proof of a "gross deviation" from the standard of conduct of a reasonable person, thus establishing a higher standard than in the tort concept of negligence
- at common law, there were no degrees of murder. All murder carried the same penalty, death..
Murder Statutes (different states define murder differently)
First Degree Murder--Georgia does not use degrees (Brown v. State)
Murder in the first degree is the most serious form of murder. In most states, it is categorized as:
"deliberate"--that is, the defendant made a clear-headed decision to kill the victim;
"premeditated"--the defendant actually thought about the killing before it occurred (the period for this can be very brief); and
"with malice"--doing a harmful act without just cause or legal excuse
Second Degree Murder
Third Degree Murder
Murders in Georgia
A. Ga. Code Ann., § 16-5-1 (a) (b) (malice murder) May be an exam question
1. A person commits the offense of murder when he (1)unlawfully and with(2)malice aforethought, either express or implied, (3) causes the death of anotherhuman being. Express malice is that deliberate intentionunlawfully to take the life of another human being which is manifested byexternal circumstances capable of proof. Malice shall be implied where noconsiderable provocation appears and where all the circumstances of the killingshow an abandoned and malignant heart.
Murders in Georgia
State v. Guthrie
Elements of Murder
- unlawful taking of a life
- willful taking of a life
- maliciously taking of a life
- deliberately taking of a life
- premeditative taking of a life
State v. Guthrie cont'd
In Georgia, a trial judge may use the following jury charge toexplain the elements of murder: “[T]he definition ofmalice murder that I gave you orally and that you have contained in the writtencharge is Georgia's lawdefinition of malice murder. It is what the law provides are the elements of malice murder.I obviously don't know where the confusion lies exactly. And I don't think itwould be appropriate ... for you to really tell me at this point where thatconfusion lies. If you haven't resorted to having one of the members of thejury read the entire definition of malice murder again, then that may be onething you may want to do. I think sometimes I try very hard to explain that theState can charge murder in two different ways. And I think that should beclear. Felony murder does not require malice. In order to convict a person offelony murder, you would have to find that the State has proven beyond areasonable doubt all the elements of aggravated assault as a result of whichthere is a death. There is a homicide. And all of that is set forthstraightforwardly in the charge. See,Doyle v. State, 291 Ga. 729 (2012)
Brewer v. State
Hall v. Lewis
Ga. Code Ann., 16-5-1(c)
Davis v. State
“Proximate cause exists if thedefendant's felony “directly and materially contributed to the happening of asubsequent accruing immediate cause of the death, or if ... the homicide (was)committed within the res gestae of the felony ... and is one of the incidental,probable consequences of the execution of the design to commit the [predicatefelony].” “The only limitation on the type of felony that may serve as anunderlying felony for a felony murder conviction is that the felony must beinherently dangerous to human life.” That is, the felony must be dangerous perse or by its circumstances create a foreseeable risk of death.”
(1) “Here, themarijuana transaction was the proximate cause of Dalton's death. It isundisputed that Davis contacted Dalton and requested a meeting to buy drugs.Allegations that the Davis brothers intended to rob Dalton and Simpson or thatDalton and Simpson planned to rob the Davis brothers are not dispositive.Regardless of whether an attempted robbery took place, the four men met for adrug transaction and something went wrong. It is undisputed that during thecourse of those events, Justin Davis shot and killed Dalton. Therefore, “thefelony the defendants committed directly and materially contributed to thehappening of a subsequent accruing immediate cause of the death.”
Pennie v. State
Manslaughter: Heat of Passion Killings
Ga. Code Ann., § 16-5-2 – VoluntaryManslaughter
1. A person commitsthe offense of voluntary manslaughter when he causes the death of another human being undercircumstances which would otherwise be murder and if he acts solely asthe result of a sudden, violent, and irresistible passion resulting fromserious provocation sufficient to excite such passion in a reasonable person;however, if there should have been an interval between the provocation and thekilling sufficient for the voice of reason and humanity to be heard, of whichthe jury in all cases shall be the judge, the killing shall be attributed todeliberate revenge and be punished as murder.
Rules of Provocation
(1) Girouard v. State, 321 Md. 532 (1991)
(a) there must have been adequate provocation;
(b) the killing must have been in the heat of passion;
(c) It must have been a sudden heat of passion – that is, the killing musthave followed the provocation before there had been a reasonable opportunityfor the passion to cool;
(d) there must have been a causal connection between the provocation, thepassion, and the fatal act.
The determination of the existence of "Heat of Passion" (Objective Standard)
1) Patridge v. State: the standard applied is the reasonable person standard
2) Lewandowski v. State: when the evidence raises the offense of voluntary manslaughter, the question is whether the defendant acted out of passion resulting from provocation sufficient to excite such passion in a reasonable person. It is of no moment whether the provocation was sufficient to excite the deadly passion in the particular defendant
Heat of Passion
(a) “Areasonable person has been defined as one neither guilty of criminal conduct andthus overly apprehensive nor insensitive to the seriousness of thecircumstances.”
Ledford v. State:
(1) OCGA§ 16–5–2(a) which provides that voluntary manslaughter occurs when one “causesthe death of another human being under circumstances which would otherwise bemurder and if he acts solely as the result of a sudden, violent, andirresistible passion resulting from serious provocation sufficient to excitesuch passion in a reasonable person”). In the Ledford case, the Court notedthat “[th]ere was not even slight evidence to suggest that the victim waskilled for any reason other than the victim's having bitten Ledford's penis inself-defense as he attempted to commit aggravated sodomy against her, factswhich cannot form the basis for a charge on voluntary manslaughter.
Heat of Passion
Beck v. State:
(a) Thecourt noted that “when a victim is attacked by a defendant and the victim attemptsto defend himself or end the altercation, the victim's actions in doing socannot provide the serious provocation necessary to justify a charge onvoluntary manslaughter”.
Mitchell v. State:
Words alone, regardless of thedegree of their insulting nature will not in any case justifythe excitement of passion so as to reduce the crime from murder to manslaughter
Mitchell v. State
Defendantwas not entitled to present evidence of his psychosexual history to showlikelihood of killing in the heat of passion aroused by his observation ofwomen engaged in homosexual lovemaking.
(a) The sight of nakedwomen engaged in lesbian lovemaking is not adequate provocation to reduce anunlawful killing from murder to voluntary manslaughter. It is not an eventwhich is sufficient to cause a reasonable person to become so impassioned as tobe incapable of cool reflection. A reasonable person would simply havediscontinued his observation and left the scene; he would not kill the lovers;. . . person of ordinary self-control under like circumstances would have leftscene
Ga. Code Ann., 16-5-3:
Aperson commits the offense of involuntary manslaughter in the commission of an unlawful act when he causesthe death of another human being without any intention to do so by thecommission of an unlawful act other than a felony.
Aperson commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful mannerwhen he causes the death of another human being without any intention to do so,by the commission of a lawful act in an unlawful manner likely to cause deathor great bodily harm.
(1) OCGA Section 40-6-393
(a) Any person who, withoutmalice aforethought, causes the death of another person through the violationof subsection (a) of Code Section 40-6-163, Code Section 40-6-390 or40-6-391, or subsection (a) of Code Section 40-6-395 commitsthe offense of homicide by vehicle in the first degree and, upon convictionthereof, shall be punished by imprisonment for not less than three years normore than 15 years.
(2) Any person who causesthe death of another person, without an intention to do so, by violating anyprovision of this title other than subsection (a) of Code Section 40-6-163, subsection (b) of Code Section 40-6-270, Code Section 40-6-390 or40-6-391, or subsection (a) of Code Section 40-6-395 commitsthe offense of homicide by vehicle in the second degree when such violation isthe cause of said death. . .
Unintentional Killings and the Felony-Murder Rule
Four Traditional Branches of the "Murder Tree"
- Malice Murder-Intent to Kill
- Intent to Cause Grievous Bodily Harm
- Sometimes Describe in "degrees of murder"
- Gross Reckless Conduct
Ga. Code Ann., 16-5-1 (c)
Ford v. State
i. Georgia’s FelonyMurder Statute] does not specify which felonies may predicate a felony murderconviction. Nonetheless, the statute is no more than a codification of thefelony murder doctrine under the common law. Its purpose isthe same: to deter the commission of a dangerous or life-threatening felony.
ii. The only rationalfunction of the felony murder rule is to furnish an added deterrent to theperpetration of felonies, which, by their nature or by the attendantcircumstances, create a foreseeable risk of death. This function is not servedby application of the rule to felonies not foreseeably dangerous. The ruleshould not be extended beyond the rational function. Moreover, the applicationof the rule to felonies not foreseeably dangerous would be unsound analyticallybecause there is no logical basis for imputing malice from the intent to commita felony not dangerous to human life.
Chance v. State
i. For a felony to be consideredinherently dangerous it must be ‘ “dangerous per se” ’ or it must ‘by itscircumstances create a foreseeable risk of death.’ ‘In determining whether afelony meets that definition, this Court does not consider the elements of thefelony in the abstract, but instead considers the circumstances under which thefelony was committed.”
ii. By participating in a felony drugdeal as the purchaser, the defendant was affirmatively choosing “ ‘to engage ina dangerous and potentially violent criminal activity.’
iii. Therefore criminal attempt topossess cocaine “was dangerous and sufficiently connected to the murder so asto also serve as an underlying felony for the felony murder conviction.
Miller v. State
i. Evidence establishedthat victim did not die instantaneously after being struck in back of head withdefendant's fist, and thus, defendant could be convicted of aggravated battery;examining pathologist testified that on average, high-volume blood flow intobrain and spinal column, such as was suffered by victim, did not causecessation in brain functioning for at least 60 seconds, witnesses testifiedthat victim moaned and gasped for air after being struck, and attendingemergency medical technician testified that after victim was resuscitated, hemaintained a pulse while being transported to hospital.
ii. Murder is an offense which can becommitted either with malice aforethought or while in the commission of afelony.
Purpose of the Felony-Murder Rule
Turner v. State
1. Function of the felony-murder rule is tofurnish an added deterrent to the perpetration of felonies that create aforeseeable risk of death by their nature or circumstances.
2.The possession of a stolen automobile created a foreseeablerisk of death, so as to support conviction for felony murder based onunderlying felony of possession of a stolen automobile; the possession of stolen automobile played arole in the driver’s decision to flee from marked police cars in pursuit thatended when he struck and killed victim, the driver of the stolen automobile mighthave believed that he could escape in stolen automobile but could not haveescaped on foot.
Deterrent for underlying felony
Mosely v. State
Afelony is inherently dangerous, as required to serve as underlying felony forfelony murder conviction, when it is dangerous per se or by its circumstancescreates a foreseeable risk of death. In determiningwhether a felony meets that definition, the courts do not consider the elementsof the felony in the abstract, but instead considers the circumstances underwhich the felony was committed.
(i) See, Hines v. State, 276 Ga. 491(2003)
(a) This theory holds that the intent to committhe underlying felony is “transferred” to the act of killing in order to findculpability for the homicide.
(b) This theory allows for the state to avoidproving the essential element of “intent” and has been almost universallycriticized as having no proper place in criminal law.
Edge v. State
Thepurpose of the felony-murder rule is to deter felons from killing negligentlyor accidentally by holding them strictly responsible forkillings they commit. The Legislaturehas said in effect that this deterrent purpose outweighs the normal legislativepolicy of examining the individual state of mind of each person causing anunlawful killing to determine whether the killing was with or without malice, deliberateor accidental, and calibrating our treatment of the person accordingly. Once aperson perpetrates or attempts to perpetrate one of the enumerated felonies,then in the judgment of the Legislature, he is no longer entitled to such finejudicial calibration, but will be deemed guilty of first-degree murder for anyhomicide committed in the course thereof.
Limitations on the Use of the Felony-Murder Rule
Generally,unless there are separate victims, the defendant may not be convicted of bothfelony murder and the underlying felony. A conviction for an underlying burglary merged into the conviction forfelony murder while in the commission of a burglary. An aggravated assault conviction, that wasthe underlying felony for the defendant's conviction of felony murder, mergedinto the felony-murder conviction, such that the conviction and sentence foraggravated assault had to be vacated. Anarmed robbery conviction underlying the defendant's conviction for felonymurder merged into the felony-murder conviction, such that defendant could notbe convicted or sentenced for both crimes
(a) See, Hawkins v. State, 267 Ga. 124 (1996)
Homicide in the Perpetration or Furtherance of a Felony
Sapp v. State
to find [a person] guilty of felony murder while in the commission of felony criminal attempt topossess cocaine, it must “find beyond a reasonable doubt that the felony wasdangerous per se or ... by the attendant circumstances in this case created aforeseeable risk of death....” And, the jury was instructed that, for felony murder to be found, itmust find that, in the commission of the underlying felony, [the defendant]“cause[d] the death of another human beingirrespective of malice.” Finally, the jury was instructed that during the commission of the offense ofcriminal attempt to possess cocaine, there must be some connection between thefelony and the homicide. The homicide must have been done in the carrying outof the unlawful act and not collateral to it. It's not enough that the homicideoccurred soon or presently after the felony was attempted or committed. Theremust be such legal relationship between the homicide and the felony so as foryou to cause you to find [sic] that the homicide occurred before the felony wasat an end. The felony must have a legal relationship to the homicide, and be atleast concurrent with it in part, and be a part of it in an actual and an [sic]material sense. A homicide is committed in the carrying out of a felony when itis committed by the accused while engaged in the performance of any actrequired for the full execution of the felony.
Sapp v. State cont'd
However, see, Ga. Code Ann., § 16-1-7
(i) When the same conduct of an accusedmay establish the commission of more than one crime, the accused may beprosecuted for each crime. He may not, however, be convicted of more than onecrime if: (1) One crime is included in the other;
State v. Jackson
Jacksonand Warren Woodley Smith, allegedly conspired withJerold Daniels to rob a drug dealer at gunpoint. The victim, however, alsoturned out to be armed, and he shot and killed Daniels in self-defense. A CobbCounty grand jury indicted Jackson and Smithon three counts of felony murder along with other offenses. The trial court dismissed the felony murdercharge on the basis that Jackson did not cause the death of Daniels.
(b) Thefelony murder statute requires only that the defendant's felonious conductproximately cause the deathof another person.
(c) The term “cause” is customarily interpreted in almost all legalcontexts to mean “proximate cause”—“[t]hat which, in a natural and continuoussequence, unbroken by any efficient intervening cause, produces injury, andwithout which the result would not have occurred.”
(i) See, Black’s Law Dictionary 1103 (5th ed.1979).
State v. Jackson
Ina criminal case, proximate cause exists when the accused's act or omissionplayed a substantial part inbringing about or actually causing the (victim's) injury or damage and theinjury or damage was either a direct result or a reasonably probable consequence of the act or omission.
(e) TheGeorgia Supreme Court set out the following test for determining causation inhomicide cases: ‘Where one inflicts an unlawfulinjury, such injury is to be accounted as the efficient, proximate cause ofdeath, whenever it shall be made to appear, either that
(i) The injury itself constituted the sole proximate causeof the death; or that
(ii) The injury directly and materially contributed to thehappening of a subsequent accruing immediate cause of the death; or that
(iii) The injury materially accelerated the death, althoughproximately occasioned by a pre-existing cause.
State v. Jackson
Amurder may be committed in perpetration of a felony, although it does not takeplace until after the felony itself has been technically completed, if thehomicide is committed within the res gestae of the felony.
(i) Res gestae is from Latin and means "thingsdone." Res gestae means allcircumstances surrounding and connected with a happening. Thus, the res gestaeof a crime includes the immediate area and alloccurrences and statements immediately after the crime.
State v. Sophophone
(i) Anact of God, i.e., an event that cannot be traced back to any humanintermediary;
(ii)An act of an independent third party, which accelerates or aggravates the harmcaused by the defendant, or which causes it to occur in an unexpected manner;or
(iii)An act or omission of the victim that assists in bringing about the outcome
(b) The Agency Approach
(c) The Cause-in Fact Approach
Hulme v. State
The only limitation on the type of felony that may serve asan underlying felony for a felony murder conviction is that the felony must beinherently dangerous to human life; for a felony to be considered inherentlydangerous, it must be dangerous per se, or it must by its circumstances createa foreseeable risk of death.
(a) In determiningwhether a felony meets this definition, the court does not consider theelements of the felony in the abstract, but instead considers the circumstancesunder which the felony was committed.
(b) “Per se” means in and of itself.
8th Amendment to the Constitution--Cruel and Unusual Punishment
TheEighth Amendment to the Constitution of the United States
a. Weems v. United States, 217 U.S. 349 (1910)
1. First Application of the 8thAmendment to find a punishment unconstitutional
b. Trop v. Dulles, 356 U.S. 86 (1958)
1. Supreme Court enunciated the principle of an"evolving standard of decency” that marks the progress of a maturingsociety.
c. Furman v. Georgia, 408 U.S. 238 (1972)
1. 1. Supreme Court held that a punishment would be"cruel and unusual" if it is too severe for the crime, if it isarbitrary, or if it offends society's sense of justice,
d. Gregg v. Georgia, 428 U.S. 153 (1976)
1. Supreme Court held that a death sentence isnot “cruel and unusual” as long as there are sufficient safeguards in place toprevent the sentence from being imposed arbitrarily and capriciously.
e. Coker v. Georgia, 433 U.S. 584 (1977)
1. Supreme Court held that a death sentence forthe rape of an adult female does not violate the 8th Amendment.
f. Atkins v. Virginia, 536 U.S. 304 (2002)
1. Supreme Court held that a death sentenceimposed on someone who is mentally retarded “offends society’s sense ofjustice.”
g. Roper v. Simmons, 543 U.S. 551 2005)
1. Supreme Court held that a death sentenceimposed on someone who is under the age of 18 at the time of the commission ofa crime “offends contemporary standards of decency.”
Common Law Offense of Rape
Sexual intercourse by a male with afemale nothis wife, constitutes rape if it is committed:
1. Forcibly; or
2. By means ofdeception;
3. While the femaleis asleep or unconscious; or
4. Undercircumstances in which the female is not competent to give consent (e.g., sheis drugged, mentally disable or underage).
Legislative Enactments Relating to Rape
RapeLegislative Statutory Construction in Georgia
a. Ga. Code Ann., § 16-6-1
1. A person commits the offense of rape when he has carnal knowledge of:
i. A female forciblyand against her will; or
ii. A female who is less than ten years of age.
2. Carnal knowledgein rape occurs when there is any penetration of the female sex organ by themale sex organ. The fact that the person allegedly raped is the wife of thedefendant shall not be a defense to a charge of rape.
Legislative Enactments Relating to Rape
ModelPenal Code § 213.1
a. Definition of Sexual Intercourse
1. A maleis guilty of rape if, acting purposely, knowingly, or recklessly regarding each of thematerial elements of the offense, he has sexual intercourse with a femaleunder any of the following circumstances:
2. The female is lessthan 10 years of age; or
3. The female isunconscious; or
4. He compels thefemale to submit by force or by threatening her or another person with imminentdeath, grievous bodily harm, extreme pain or kidnapping; or
5. He administers oremploys drugs or intoxicants in a manner that substantially impairs the female’sability to appraise or control her conduct.
i. Includes per os and per anum
(a) os = oral and anum = anal
Statuteof Limitations – in General and as Applicable to Rape
OCGA§ 17-3-2(2), the period of limitation is tolled during any period in which“[t]he person committing the crime is unknown or the crime is unknown.” The keyto determining when the statute of limitation begins to run is to find when theoffender or offense became known.
1. “[t]he knowledge of the victim of the crimeis imputed to the State, and thus the crime becomes known to the State and thestatute of limitation begins to run after it is known to the prosecutor orto the one injured by the offense.”
Statute of Limitations
Ga.Code Ann., § 17-3-1
1. A prosecution for murder may be commenced at any time.
i. Prosecution for . . . the crime of forcible rape must be commencedwithin 15 years after the commission of the crime.
ii. Prosecution for [other felonies delineated in other sections] must becommenced within four years after the commission of the crime, provided thatprosecution for felonies committed against victims who are at the time of thecommission of the offense under the age of 18 years must be commenced withinseven years after the commission of the crime.
iii. Prosecution for misdemeanors must be commenced within two years afterthe commission of the crime.
Analysis of the Elements Required to Prove the Crime of Rape
A. Forceand Non-consent
a. Commonwealthv. Sherry, 386 Mass. 682 (1982)
1. The victim is not required to use physicalforce to resist; any resistance is enough when it demonstrates that her lack ofconsent is “honest and real.”
i. There is no rule that requires a victim tocomplain of a rape to strangers in an unfamiliar place while still in thecompany of the alleged rapist. The actions of the victim were reasonable in theparticular circumstances of the case.
ii. The victim first reported the rape to herfriend and roommate within a few hours after being dropped off by thedefendants.
Force and non-consent
State v. Alston, 310N.C. 399 (1984)
i. A defendant can beguilty of raping even his mistress or a “common strumpet.” This is so because consent to sexualintercourse freely given can be withdrawn at any time prior to penetration.
(a) A “strumpet” is defined as a female prostitute ora promiscuous woman.
ii. The evidence was sufficient to show that theact of sexual intercourse in question was against Brown's will. However, it wasnot sufficient, to show that the act was accomplished by actual force or by athreat to use force unless she submitted to sexual intercourse.
iii. Since the State did not introduce substantialevidence of the element of force required to sustain a conviction of rape
How much force?
a. Ruskv. State, 43 Md. App. 476 (1979)
1. If the acts and threats of the defendant werereasonably calculated to create in the mind of the victim having regard to thecircumstances in which she was placed a real apprehension, due to fear, ofimminent bodily harm, serious enough to impair or overcome her will to resist,then such acts and threats are the equivalent of force.
2. The victim stated that she was afraid, andsubmitted because of “the look in his eyes.” After both were undressed and inthe bed, and she pleaded to him that she wanted to leave, he started to lightlychoke her.
i. It was brought out that the “lightly choking”could have been a heavy caress. The appellate court found that “lightlychoking” along with all the facts and circumstances in the case, weresufficient to cause a reasonable fear which overcame her ability to resist.
Consent means yes and Non-Consent means no?
a. DeborahS. v. Diorio, 153 Misc. 2d 708 (1992) (Note Case-Civil)
1. [M]en have been conditioned to believe thatinitial refusals are an essential part of the “mating game” ritual whichdictates that women must resist somewhat to make themselves more attractive tomen and assumes that certain behavior like going alone to the man's room orhouse, kissing or heavy petting are automatic precursors to sexual intercourseand not rape.
i. This rising tide of date or acquaintance rape confirms that such rape,especially where threats or a weapon is used, is violence, not uncontrolledsexual drive, used by a man to overpower and enslave another person, a woman(in most cases) or a man (in a few cases), against their will. This violationof a human being is “of the most personal, most intimate and most offensivekind” must be condemned and deterred by courts and Judges not only in thecriminal but also in the civil justice system.
(a) “No means No!”
a. Peoplev. John Z., 29 Cal. 4th 756 (2003)
1. Forcible rape occurswhen the act of sexual intercourse is accomplished against the victim's will byforce or threat of bodily injury, and it is immaterial at what point the victimwithdraws her consent, so long as that withdrawal is communicated to the maleand he thereafter ignores it.
b. See, Glaze v. State,317 Ga. App. 679 (2012)
1. “[L]ackof resistance, induced by fear, is not legally cognizable consent but is force.”
Inability to Consent Because of Intoxication
a. Sexualintercourse with a woman, whose will is temporarily lost from intoxication, orunconsciousness arising from use of drugs or other cause, or sleep, is rape.
1. See,Paul v. State, 144 Ga. App. 106 (1977)
b. Carnal knowledge offemale who, because of mental retardation, is incapable of giving intelligentassent or dissent or of exercising judgment in the matter constitutes “rape.”
1. See, Baise v. State, 232Ga. App. 556 (1998)
i. In forcible rape casewhere victim indicates consent and does not resist, but by reason of mentalretardation is incapable of intelligently consenting, lack of actual forcenecessary to overcome resistant victim in other cases is suppliedconstructively by rule that no more force need be used than that necessary toeffect penetration made by defendant.
Reporting of the Rape or "Outcry"
a. Lack of immediate outcry by victim or immediatereporting of rape is not required.
1. See,Skipper v. State, 257 Ga. 802 (1988)
Prior Relationships Between the Parties
a. The fact that a relationship between two people wasconsensual at one time does not preclude a rape conviction when therelationship was no longer consensual.
1. See, Scott v. State, 281 Ga. App. 106 (2006)
Rape by Fraud or Non Physical Threats
1. Borov. Superior Court, 163 Cal. App. 3d 1224 (1985)
2. Pursuant toinstructions given to the victim, she checked into a hotel, called the doctorto give him her room number, and permitted the “donor” (petitioner) to havesexual intercourse with her. The victim testified that at the time ofpenetration, it was her belief that she would die unless she consented tosexual intercourse with petitioner.
3. Rape may occur wherevictim is unconscious of the nature of the act and this is known to accused). Avictim need not be totally and physically unconscious in order rape to occur.
4. The victim preciselyunderstood the “nature of the act,” within the meaning the rape statute but,motivated by a fear of disease and death she submitted to intercourse as aresult of the fraud of the defendant. There was no evidence indicating that asthe result of mental retardation that she lacked the capacity to appreciate thenature of the sex act in which she engaged with the accused.
5. “In prosecutions [the applicable rapestatutes] in which consent is at issue, 'consent' shall be defined to mean positivecooperation in act or attitude pursuant to an exercise of free will.
i. Fraud in the Factum – no consent
ii. Fraud in the Inducement – consent
a. Thegeneral rule is that a mistake of fact will protect the defendant from aconviction if it eliminates the intent that is required for the crime. Severaljurisdictions now hold that a mistaken belief of consent will protect thedefendant from a conviction only if the defendant honestly and in good faithbelieved that the woman consented and the defendant’s mistaken understandingmust be one that a reasonable person would have made.
Rape Shield Laws
A. SixthAmendment Right of Confrontation Rape Shield Statutes
a. Ga.Code Ann., § 24-4-412 (formerly 24-2-3-new evidence code Title 24)
1. “In any prosecution for rape . . . evidencerelating to the past sexual behavior of the complaining witness shall not beadmissible, either as direct evidence or on cross-examination of thecomplaining witness or other witnesses. . .”
2. Evidence of past sexual behavior includes,but is not limited to, evidence of the complaining witness’smarital history, mode of dress, general reputation for promiscuity,nonchastity, or sexual mores contrary to the community standards. . . “
Rape Shield Laws
a. Evidenceof prior false allegations not prohibited by Rape Shield law
1. Evidence of priorfalse accusations by a rape victim does not fall within the proscription of therape shield law, but before admitting such evidence the trial court mustdetermine outside the presence of the jury that a reasonable probability existsthat such accusations were false.
i. See,Wagner v. State, 253 Ga. App. 874(2002);
ii. Seealso Mann v. State, 244 Ga. App. 756 (2000)
Georgia’sStatutory Rape Statute
a. OCGA § 16-6-3
1. A person commits the offense of statutoryrape when he or she engages in sexual intercourse with any person under the ageof 16 years and not his or her spouse, provided that no conviction shall be hadfor this offense on the unsupported testimony of the victim.
2. Haywood v. State, 283Ga. App. 568 (2007)
i. “[a] person commits the offense of statutoryrape when he or she engages in sexual intercourse with any person under the ageof 16 years and not his or her spouse.” “With regard to statutory rape ..., thedefendant's knowledge of the age of the female is not an essential element ofthe crime ... and therefore it is no defense that the accused reasonablybelieved that the prosecutrix was of the age of consent.”
Attempted Statutory Rape
“[W]henyou dirty dance, you touch each other about the body where you probablywouldn't touch otherwise”). . . Erotic [dances], even such relatively tame onesas ... Patrick Swayze's dirty dancing, are inevitably designed to sexuallyarouse or gratify”.
1. See, Judicev. State, 308 Ga. App. 229 (2011)
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Jennifer, Rutgers University
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