Law 194 Midterm

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Punishing Omissions

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(How Doing Nothing Can Be Consistent with Actus Reus Requirement)

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There are two basic ways in which the criminal law punishes people for failing to act:

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o 1. There may be a specific criminal statute specifically requiring people to render aid to others under certain circumstances.

2. A statute that makes a certain act criminal (child abuse, for example) will treat a failure to act (if a violation of a legal duty to act) as an action for purposes of the statute.

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Bad Samaritan Statutes.

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o 1. There may be a specific criminal statute specifically requiring people to render aid to others under certain circumstances.

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Good Samaritan Statutes

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are statutes that, given certain conditions, free people from civil liability if they act reasonably to aid another in distress.

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The argument against Good samaritan statutes

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• There is generally significant opposition to these in free societies because of a fear that they will create a slippery slope by not being able to draw a clear line between those we must help and those we are free to ignore.
• The absence of such a clear line, so the argument against goes, makes possible our all being sucked into an orgy of compulsory assistance to others–leaving us little freedom to pursue our own personal goals.

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How do existing bad samaritan statues block the slippery slope

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• Existing Bad Samaritan Statutes try to block this slippery slope by requiring of people that they render only reasonable aid–e.g., aid they are competent to administer and that does not require of them significant sacrifices or risks of harm.

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What does it mean to say "There is no legal requirement to be a hero"

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The penalties for violation of such statutes (at least in America) tend to be rather minor–making some think that having them is perhaps worse than not having them.

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2. A statute that makes a certain act criminal (child abuse, for example) will treat a failure to act (if a violation of a legal duty to act) as ____________________

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an action for purposes of the statute.

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A statute that makes a certain act criminal (child abuse, for example) will treat a failure to act (if a violation of a legal duty to act) as an action for purposes of the statute. Some examples:

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 a. Status relationships such as parent/child or husband/wife.
• Failure to feed one’s own child, who then starves to death, can be punished as some degree of homicide, for example.
• Even if the child does not die, conviction for child abuse (if there is no child neglect statute) is a possibility.
 b. Contractual relationships. For example: A railroad employee whose job is to throw switches to make sure that trains stay on the correct tracks and do not collide can be punished for some degree of homicide if he falls asleep, fails to throw the correct switch at the proper time, and deaths result from a train collision.
 c. Creation of peril through wrongful act. In one case a man rapes a young woman near the bank of a lake. The victim is so distraught and traumatized that she walks around in a daze, stumbles into the lake, flails her arms around but is unable to swim, and drowns. The rapist sees all this happen, could easily save the woman, but does nothing. He can be convicted of some degree of homicide.

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Status relationships (how inaction can be criminal)

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 a. such as parent/child or husband/wife.
• Failure to feed one’s own child, who then starves to death, can be punished as some degree of homicide, for example.
• Even if the child does not die, conviction for child abuse (if there is no child neglect statute) is a possibility.

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Contractual relationships

(how inactions can be wrong)

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For example: A railroad employee whose job is to throw switches to make sure that trains stay on the correct tracks and do not collide can be punished for some degree of homicide if he falls asleep, fails to throw the correct switch at the proper time, and deaths result from a train collision.

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Creation of peril through wrongful act

(how inactions can be wrong)

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In one case a man rapes a young woman near the bank of a lake. The victim is so distraught and traumatized that she walks around in a daze, stumbles into the lake, flails her arms around but is unable to swim, and drowns. The rapist sees all this happen, could easily save the woman, but does nothing. He can be convicted of some degree of homicide.

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Crimes Not Requiring Mens Rea (Strict or Absolute Liability)

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• Public Welfare Offenses
• Felony Murder
• Statutory Rape

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Public Welfare Offenses

Crimes Not Requiring Mens Rea (Strict or Absolute Liability)

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such as the criminal offense of shipping tainted food in interstate commerce.

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Public Welfare Offenses

Crimes Not Requiring Mens Rea (Strict or Absolute Liability)

EXAMPLE

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A person who owns a meat packing plant, for example, might face criminal prosecution if tainted meat from his plant finds its way into interstate commerce.
o Since this is a strict liability statute (i.e., a statute requiring no mens rea) arguments that the owner did not ship the meat intentionally, knowingly, recklessly, or even negligently are beside the point and cannot free him from criminal liability.
o Since a person who could truly claim that he lacked all of these mens rea conditions is a person who did all that we could reasonably expect anyone to do, punishing him seems wrong on retributive grounds–i.e., since he does not deserve to be punished his punishment is unjust or unfair.
o But this is a case–given the great need of protecting the public–in which utilitarian (future consequences) considerations are often thought to justify departures from justice–particularly if the punishments are not too severe.
o One might wonder how such punishments could serve any utilitarian deterrence value since a person can only do the best that he can do.
o A possible response would be to argue that such punishments might deter all but the most hyper-careful of individuals from taking on the job of running a meat packing plant.
o Knowing that one who does this might face a strict liability prosecution might incline some people to choose a different business or line or work.
o One thing that might make such punishment seem not quite as unfair as it initially seems is that at least people know in advance and have thus have fair warning that they are entering a line of work in which strict liability crimes exist.

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Felony Murder.

Crimes Not Requiring Mens Rea (Strict or Absolute Liability)

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Felony murder allows one engaged in a felony to be convicted of murder (even capital murder) even if one did not have any intention or knowledge (typical mens rea conditions for murder) that the killing would take place.

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Felony Murder.

Crimes Not Requiring Mens Rea (Strict or Absolute Liability)

EXAMPLE

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So if Mr. Jones agrees to drive the getaway car for a store robbery (a felony) and his accomplice kills the store clerk, Jones might be convicted of first degree murder and get the death penalty–just as though he had intentionally killed the clerk himself.
 This strikes many people as unjust since a person who does not intend or know that a person will be killed does not deserve, so they will claim, the same punishment as the person who intentionally kills.

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The utilitarian argument to felony murder not requiring mens rea

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o A utilitarian argument on the other side might be that one should not commit felonies in the first place and that deterrence will be served by the threat of a possible murder conviction of one’s felony is part of a causal chain that leads to an unjustified death.
 (A prisoner escaping from prison (a felony) might be charged with some degree of homicide if a policeman chasing him has a heart attack and dies.)

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o If just any felony could trigger the felony murder rule, then the results might seem terribly irrational and unjust–even absurd.

Why?

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 Suppose Mrs. Smith, an elderly and religiously devout resident of Georgia when homosexual sodomy was a felony comes to the house of Bob and Rob to borrow a cup of sugar, observes them through the window engaged in sodomy, gets very upset, has a heart attack and dies.
 Surely nobody would think that Rob and Bob should be convicted of murder.
 To avoid this kind of absurdity, most states limit the felony murder rule to what are called inherently dangerous felonies–

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inherently dangerous felonies–

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• i.e., felonies (kidnapping, rape, armed robbery, etc.) that have some tendency to lead to lethal consequences. It might be argued, of course, that this is sneaking in a mens rea requirement of some kind by the back door since a person engaged in an inherently dangerous felony must be aware that some significant unjustified risk of death or grave bodily harm is present. In short, he must be reckless.

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Statutory Rape.

(cases that dont require mens rea [strict liability])

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. A legal adult can be convicted of rape if having consensual sex with an underage person (a person who cannot give legally valid consent).

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Recall that self defense is a _________

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justification

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what does it mean that "self defense is a justification"

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o This means that it is an act that, in special circumstances, is right and permitted by the law even if in typical circumstances this kind of act (intentional killing of a human being, for example) is a serious crime.
o Since the act is regarded as justified, there are no legal consequences following an acquittal.
 (This differs from an excuse.

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how does a justification differ from an excuse

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An excuse acknowledges that what was done was wrong and unjustified but claims that the person who performed the act could not help it–because of mental illness, perhaps–and thus should not be held criminally responsible. An acquittal may be followed by such legal consequences as involuntary confinement in a mental hospital

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o In most jurisdictions one may use deadly force (intentionally kill) another human being as self defense only if it is reasonably believed by the actor that the use of that force is o In most jurisdictions one may use deadly force (intentionally kill) another human being as self defense only if it is reasonably believed by the actor that the use of that force is o In most jurisdictions one may use deadly force (intentionally kill) another human being as self defense only if it is reasonably believed by the actor that the use of that force is ___________

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necessary to prevent an unlawful deadly force aggression against the actor or some other innocent party.

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deadly force

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Deadly force can mean any force that, as in rape, has a significant chance of producing death or grave bodily harm

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Requiring that the beliefs involved in self defense be reasonable is usually referred to as __________

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a standard of objective liability.

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A standard of subjective liability (with which the Model Penal Code at least flirts) would require :

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only that the actor believe the use of deadly force to be necessary, not that the belief be reasonable.

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A reasonable belief requirement asks each member of the jury to answer the question:

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“What would you, as a normal and reasonable representative of the community and its values, have believed in the situation faced by the actor?”

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o A third group of writers suggested that the phrase "impossible to leave" is ambiguous—

battered womens sundrom

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 can mean psychologically impossible (in which case an excuse might be generated but no justification)
 or physically impossible--e.g., a history of police failing to intervene and protect the woman, her going to shelters for battered women only to be discovered by the husband and dragged home and beaten again, etc.
 This might go toward grounding at least a partial justification--reduction from murder to manslaughter, for example.

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o Others thought that if the real problem with the woman was some kind of psychological pathology, then this might ground an ______ but not a ________

women's battered syndrome

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excuse but not a justification

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• This rule, the M’Naghten Rule, was for a long time adopted in most American jurisdictions and is stated this way:

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o A person merits the verdict not guilty by reason of insanity if because of a mental disease he, at the time of his act, was so lacking in reason that he did not know what he was doing (the nature and quality of his act) or did not know that it was wrong.

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Simply having a mental disease at the time of the criminal act does not earn one a justified verdict of not guilty by reason of insanity.

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o The mental disease must be one that enters into the explanation of the criminal conduct.
o A compulsive exhibitionist probably has a mental disease and arguably should be excused for exposing himself, but it would be absurd to think that this disease should excuse him for the crime, for example, of embezzlement.

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In 1972 (Furman v Georgia

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the Supreme Court ruled that, although the death penalty is not per se a violation of the 8th Amendment ban on “cruel and unusual punishment,” it is cruel and unusual as administered.

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in 1976 (Gregg v Georgia

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the Supreme Court considered a capital sentencing scheme proposed by Georgia and ruled that it sufficiently addressed the Furman worries about capital sentencing being arbitrary and capricious and also treated all murderers as individuals.