Criminal law and procedure 8th edition scheb solutions manual 1

Criminal Law and Procedure 8th Edition

by Scheb ISBN 1285070119

9781285070117

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Chapter 7 Other Offenses Against Persons

CHAPTER ORIENTATION:

At the time of the English colonization of America, the common law had identified four groups of offenses against persons: (1) homicidal offenses, which we examined in the previous chapter; (2) assaultive crimes; (3) sexual crimes; and (4) offenses involving confinement and movement of persons. Early American criminal law was essentially a continuation of this common law scheme, but by the 1800s defining offenses against persons became a legislative rather than a judicial function. Legislative bodies defined offenses based America’s penchant for definiteness and standards of written constitutions with variations necessary in the U.S. social and political environment. In this chapter we examine both the common law background and representative statutes proscribing nonhomicidal crimes against persons. In addition to the common-law crimes of assault and battery, mayhem, rape, kidnapping and false imprisonment, our survey includes the offenses of hazing and stalking, sexual battery, abusive offenses, civil rights offenses and hate crimes. The chapter also devotes considerable attention to reforms in the law of rape and to the enactment of sex offender registration laws.

LEARNING OBJECTIVES:

After reading this chapter, the student should be able to explain …

1. how the common law defined assault and battery and how modern statutes treat those offenses

2. why mayhem is no longer a frequently charged offense

3. the distinctly modern offenses of hazing, stalking, and cyberstalking

4. how the crime of rape has evolved significantly from its common-law origins

5. why statutory rape is a strict liability offense

6. why in some states certain nonconsensual sexual acts may be prosecuted as sodomy rather than rape or sexual battery

7. the controversy over sex offender registration laws

8. how and why legislatures have criminalized child abuse, spousal abuse, and elder abuse

9. how false imprisonment and kidnapping have evolved from their common-law origins

10. why Congress created federal civil rights offenses and hate crimes

CHAPTER OUTLINE:

I. Introduction

II. Assaultive Offenses

A. Modern Statutory Developments

B. Common Illustrations of Simple and Aggravated Assault and Battery

C. The Burden of the Prosecution

D. Defenses to Charges of Assault and Battery

E. Mayhem

F. Hazing

III. Stalking

A. Cyberstalking

IV. Rape and Sexual Battery

A. The American Approach

B. Statutory Rape Laws

C. Reform in the American Law of Rape

D. Rape Shield Laws

i. Judicial Reforms

E. A Contemporary Statutory Treatment of Sexual Offenders

F. Prosecutorial Burdens in Rape and Sexual Battery Cases

G. Rape Trauma Syndrome

H. Sex Offender Registration Laws

I. Defenses to Charges of Sexual Battery

J. Sodomy

V. Abusive Offenses

A. Child Abuse

B. Spousal Abuse

C. Abuse of the Elderly

D. Bullying

VI. False Imprisonment and Kidnapping

A. The Statutory Offense of False Imprisonment

B. Modern Statutory Treatment of Kidnapping

C. The Requirement of Asportation in Kidnapping

D. Federal Kidnapping Laws

E. Defenses to Charges of False Imprisonment and Kidnapping

F. Child Snatching

VII. Civil Rights Offenses

VIII. Hate Crimes

IX. Conclusion

KEY TERMS:

abuse of the elderly

aggravated assault

aggravated battery

asportation

assault battery

carnal knowledge

child abuse

child snatching

civil rights

common-law rape

consent

cyberstalking

endangering the welfare of a child

false imprisonment

force

forcible rape

gender-neutral offense

Hale’s Rule

hate crimes

hazing

hostage taking

impotency

kidnapping

kidnapping for ransom

marital exception

mayhem

Megan’s Law

Parental Kidnapping Prevention Act (PKPA)

rape shield laws

rape trauma syndrome

sexual contact

sexual penetration

simple kidnapping

sodomy

spousal abuse

stalking

statutory rape

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

JURISPRUDENCE:

Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). The Alaska Sex Offender Registration Act provides: any sex offender or child kidnaper incarcerated in the State must register with the Department of Corrections within 30 days before his release, providing his name, address, and other specified information. If the individual is at liberty, he must register with local law enforcement authorities within a working day of his conviction or of entering the State. If he was convicted of a single, non-aggravated sex crime, the offender must provide annual verification of the submitted information for 15 years. If he was convicted of an aggravated sex offense or of two or more sex offenses, he must register for life and verify the information quarterly. In this case, two defendants “were convicted of aggravated sex offenses,” and “both were released from prison and completed rehabilitative programs for sex offenders.” Although the defendants were “convicted before the Act’s passage,” they were covered by it. The defendants filed a civil action seeking to “declare the Act void as applied to them under the Ex Post Facto Clause.” The district court denied the defendants’ relief; however, the Ninth Circuit disagreed, “holding that, because its effects were punitive, the Act violates the Ex Post Facto Clause.” The Supreme Court held the Act to be “nonpunitive” and as a result held “its retroactive application does not violate the Ex Post Facto Clause.” The Supreme Court concluded that the Alaska legislature’s intention behind the Act “was to enact a regulatory scheme that is civil and nonpunitive.” The “statutory text states the legislature’s finding that sex offenders pose a high risk of reoffending, [and] identifies protecting the public from sex offenders as the law’s primary interest, and declares that release of certain information about sex offenders to public agencies and the public will assist in protecting the public safety.” The Court held “where a legislative restriction is an incident of the State’s power to protect the public health and safety, it will be considered as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment.”

United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). In 1982 David W. Lanier was elected judge of the Chancery Court in the small town of Dyersburg, Tennessee. Soon he developed a reputation for taking liberties with women who appeared before him as litigants or worked with him in the courthouse. Because Judge Lanier’s family was prominent and because his brother was district attorney, the women whom Lanier victimized were reluctant to come forward. Eventually, federal authorities in Memphis heard of the allegations and launched an investigation. Five women agreed to appear before a federal grand jury. They testified that Judge Lanier had sexually assaulted them in his chambers and in his courtroom. One woman, a litigant in a child custody dispute, told the grand jury how Lanier threatened to deny her custody of her children in order to extort sexual favors from her. Judge Lanier was indicted on eleven counts of violating 18 U.S.C.A. § 242, a civil rights law enacted after the Civil War. Had the case been prosecuted in state court, the charge would have been straightforward sexual assault. But that option was not available to federal prosecutors. The indictment alleged that the judge, acting willfully and under color of state law, had deprived his victims of their federal constitutional right to be free from sexual assault. Lanier was convicted and sentenced to twenty-five years in prison and a $25,000 fine. The U.S. Supreme Court upheld the conviction and in so doing signaled the breadth of conduct that is susceptible to prosecution under the federal civil rights laws.

MEDIA TOOLS: Sex Offender Registry

http://www.fbi.gov/scams-safety/registry

Assignment: Have students pull up the online sex offender registry for their state. Also have them examine their state’s sex offender registration law, which in most instances is posted on or linked from the sex offender registry website. Questions:

1. How many offenders are listed in the state registry?

2. What are the most common crime labels on offenders in the registry?

3. Are the offenders listed in the registry protected in any way?

Judge David Lanier’s Facebook Page

https://www.facebook.com/pages/Free-David-W-Lanier-from-Cruel-and-UnusualPunishment/146889665347274

Assignment: Judge Lanier, now 75 years old and in poor health, remains incarcerated in federal prison in Arkansas and is not doe to be released until 2018. Have students read the Supreme Court’s decision in United States v. Lanier (1997), which is available on Findlaw and many different websites. They might also do a generic Google search to get more background information on the Judge and the crimes that led to his incarceration.

Questions:

1. Why is Judge Lanier in federal, as opposed to state, custody?

2. The 1984 Sentencing Reform Act gives federal courts the power to reduce sentences of federal prisoners for “extraordinary and compelling reasons,” such as a terminal illness. Does Judge Lanier qualify for “compassionate release”?

3. How likely is it that Judge Lanier will get the presidential pardon he is seeking?

4. How is it that a prisoner can use social media?

QUESTIONS FOR THOUGHT AND DISCUSSION:

1. What elements, in addition to those required for assault or battery, must the prosecution prove to convict a defendant of aggravated assault or battery?

Answer: This depends on the elements in the statute(s) defining such offenses. Ordinarily to convict a defendant of aggravated assault the prosecution must prove the defendant used a dangerous weapon or otherwise intended to commit a felony; to prove aggravated battery the prosecution is usually required to show that the defendant used a deadly weapon to inflict great bodily harm, disfigurement on the victim.

2. What interests does the law seek to protect in proscribing (a) forcible rape and (b) statutory rape?

Answer:

a. Forcible rape: To protect the personhood and sexual privacy, possible injury, disease, pregnancy, and psychological damage to the victim.

b. Statutory rape: To protect young persons, generally females, from the psychological effects of premature sexual relations, pregnancy, and threat of disease of sexual relationships.

3. Which statutory and judicial reforms of the 1970s and 1980s in the law of rape were the most significant from a female victim’s standpoint? Are there other biases against female victims of sexual assault that should be addressed?

Answer:

a. Legislative reforms:

• Criminalizing forced sexual relations between spouses or cohabitants.

• Expanding common-law definitions of rape to include anal, oral, or vaginal penetrations by a sex organ or another object.

• Enacting rape shield laws to preclude presentation of evidence of a victim’s prior sexual activity with anyone other than the defendant.

b. Judicial Reforms:

• No longer instructing juries that the uncorroborated testimony of a victim of sexual battery deserves more scrutiny than the testimony of other crime victims.

• Not insisting that a woman must “resist to the utmost.”

• Disavowing the unity concept of marriage, thereby abolishing the marital exception.

• Whether there are other biases that should be addressed is a question for discussion.

4. Does Hale’s Rule, which creates a marital exception in the law of rape, apply in your state?

Answer: The instructor and students should research this issue on the Internet, FindLaw or other sources.

5. What role do the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Parental Kidnapping Prevention Act (PKPA) play in controlling child snatching?

Answer: The most important role is to prevent parents from “judge shopping” which involves a parent taking his or her children to state other than the state of residence and seeking a judicial decree that parent sole custody.

6. Do the federal statutes making it unlawful to deprive persons of their civil rights under color of law have a significant deterrent effect on misconduct of law enforcement personnel? Or do these statutes hamper effective police action?

Answer: Enforcement of these statutes appears to have become a significant deterrent to police violating the civil rights of persons. Lack of proper education and training of officers in respecting the constitutional rights of individuals, not enforcement of civil rights, is what hampers effective police action. Note, for example, that FBI officers are seldom charged with violations of civil rights.

7. Explain the necessity for the prosecution to prove asportation in order to establish the offense of kidnapping.

Answer: Asportation requires a significant movement of a victim. It is necessary to prove asportation to distinguish the offense of kidnapping, a very serious felony, from the lesser offense of false imprisonment and from other crimes involving less significant movement of a victim.

8. Why have most state courts rejected prosecution of a mother whose child suffers adverse medical effects from the mother’s ingestion of cocaine during her pregnancy?

Answer: The plain meaning of most child endangerment statutes proscribes conduct that directly endangers a child, not to an activity that affects a fetus during a woman’s pregnancy.

9. Assume you are a staff member of a state criminal justice agency. The director asks you to compose a draft of a statute to prohibit endangerment to children. What key points would you include in your draft?

Answer: At the outset the staff member should research the existing statutes to determine whether it is necessary to include deprivation of food, clothing, shelter, health care or whether these matters are covered adequately in other statutes? Is failure to report sexual or child abuse covered in other statutes? Is endangerment through operating a motor vehicle while under the influence of intoxicating liquors covered under other statutes? In preparing a draft the staff member should mention: Who is to be covered? Parents, guardians, custodians? What age children are to be subject? How is endangerment to be defined? Broadly to include any acts or omissions that would cause physical or mental injuries to children? Should psychological and emotional harm be included? If so, how should these terms be defined? What level of acts should be covered, for example, would the test be whether such actions create a substantial risk of injury or deprivation to children? What intent should be prescribed? Should acts that are done knowingly as well as omissions and negligence to be included?

Check the Internet to determine what is covered by other child endangerment laws. Is the legislator’s objective to specify such acts as the following that may not be covered by other statutes? If so perhaps the following should be included:

• Leaving young children unattended in a motor vehicle

• Employing a person with a known history of sexual offenses to care for children

• Allowing alcohol to be consumed by children

• Leaving young children unsupervised

1. Daniel grabbed a large stick and in a threatening manner advanced toward William. Before he came within striking distance of William, a third party stopped him. Based on this evidence is it likely that Daniel will be found guilty of assault?

Answer: First, examine the statute of the state where the incident occurred. Here are two state statutes that define assault differently:

State One: An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

State Two: A person who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault.

In State One, ask whether Daniel’s actions created “a well founded fear” in the victim. In State Two, would the fact that Daniel was deterred from his intended action preclude him from being guilty of an assault?

2. A state law defines false imprisonment as “the intentional restraint of another person without lawful authority.” Alan drove his girlfriend, Olivia, to the shopping mall. He insisted she wait in the car while he shopped. When she protested he locked the car and was gone for fortyfive minutes. Olivia filed a complaint with the police. Is it likely that the state will prosecute Alan for false imprisonment?

Answer: The facts indicate that Alan effectively restrained Olivia over her protest and without any lawful authority. These facts seem to fit within the statutory definition.

3. A store manager observes Lucy Grabit stuffing a pair of nylon hose into her purse before going through the checkout counter in a supermarket. The manager detains her and promptly directs his employee to call the police. Is the store manager guilty of false imprisonment? Why or why not?

Answer: The store manager saw Lucy Grabit shoplift. This provided reasonable cause to detain her and because he promptly directed his employee to call the police the store manager would not be guilty of false imprisonment.

4. Several college freshmen enter the dean’s private office and remain there for several hours. They refuse to let the dean leave until he yields to their demands to allow unrestricted visitation in all dormitories. Under contemporary criminal statutes, what offense, if any, have the students committed? Explain.

Answer: Here the students did not have a legal right to restrain the dean. They would not be guilty of kidnapping because there was no asportation of the dean. Yet, the students did unlawfully detain the dean so under most contemporary statutes they would be guilty of false imprisonment.

5. The defendant was convicted of battery under a statute that provides that “a person commits a battery who either intentionally or knowingly, and without legal justification, makes physical contact of an insulting or provoking nature with an individual.” The evidence disclosed that one morning the male defendant picked up a female friend whom he had invited to have breakfast with him. En route to the restaurant he unbuttoned her blouse and placed his hand on her breast; after she removed his hand and asked him to stop, he again placed his hand on her breast. On appeal, the defendant argues that his conviction should be reversed because his acts were not insulting, there was no struggle, and the female did not testify that she was traumatized or disturbed by his acts. Moreover, he points out that the evidence disclosed that after the incident the female complainant accompanied him to a restaurant where they had breakfast together. Should the appellate court reverse this conviction on the ground that the evidence is insufficient? Why or why not?

Answer: The appellate court would first examine the text of the battery statute. Ordinarily a battery statute proscribes offensive physical contact with another person against that person’s will. Here the defendant’s female friend asked him to stop yet he repeated the unwanted behavior. Therefore the appellate court would probably affirm the defendant’s conviction. The fact that the female complainant had breakfast with the defendant after the incident might have influenced the prosecutor in bringing charges, but this would not have a bearing on the appellate court’s review of the conviction.

6. The defendant and her husband have two sons, ages five and three. Without notifying her husband, she left the family home with both children while no court proceedings were pending concerning either their marriage or custody of their children. Two weeks later, and without the wife’s knowledge, the husband obtained a court order granting him custody of the two children. An arrest warrant was eventually issued for the wife. She was arrested in another state and brought back to her home state, where she now faces prosecution under a statute that provides, “Whoever, being a relative of a child … without lawful authority, holds or intends to hold such a child permanently or for a protracted period, or takes or entices a child from his lawful custodian … shall be guilty of a felony.” The wife’s attorney stipulates that the facts are correct as stated but contends the wife cannot be convicted of parental kidnapping under the quoted statute. What result do you think should occur? Why?

Answer: At the time the wife left no court proceedings were pending so she had a right to take her children on a trip away from the family home. The key words in the statute under which she is prosecuted are “without lawful authority.” Moreover, there are insufficient facts here to indicate that the wife intended to hold the children permanently or for a protracted period away from their father. Her attorney has a good argument.

7. A nineteen-year-old woman returns home from an evening at the beach. She tells her mother that she has been raped and sodomized by an attacker she does not know. Some hours later, the woman identifies her attacker to her mother, and they notify the police. At trial, the prosecution seeks to admit expert testimony on rape trauma syndrome to explain the victim’s reticence in promptly identifying her attacker. The defense objects. Should the court allow expert testimony on this subject to explain the reactions of the female victim in the hours

following her attack and to explain why she may initially have been unwilling to report the defendant who attacked her? Why or why not?

Answer: This hypothetical scenario provides a basis for discussion of the rape trauma syndrome. Here are some issues that should be discussed:

a. What is the rape trauma syndrome and under what circumstances is it applicable?

b. Do the courts where the sexual assault occurred recognize the rape trauma syndrome doctrine? If so, what limitations have the courts imposed on its introduction in evidence in a sexual assault case?

c. Does the defendant claim the defense of consent? What bearing would this have?

d. What psychological manifestations did the victim exhibit following her report of being sexually assaulted?

e. Is there any need to introduce evidence of the traumatic effect of the sexual assault to explain the victim’s failure to make a “fresh complaint” to the police?

f. Has an expert been qualified in court available to give an opinion describing the rape trauma syndrome and explaining its applicability to this case?