Introduction and basic concepts



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§3.05(2) (a) not obliged to retreat unless could ensure complete safety of person being protected, (b) obliged to encourage person being protected to retreat if he knew he could obtain complete safety in doing so, and (c) same rules of non-retreat in dwelling/place of work apply to other’s dwelling.

  • “your own shoes,” where  is justified to use force when he reasonably believes it’s necessary based on who he reasonably took to be the victim (similar to MPC).

    1. Encourages intervention.

    2. Based on ’s subjective beliefs, but belief must be reasonable for  to get off

  • “other person’s shoes,” where  is justified based on if the other person in fact had a right to use defensive force.

    1. Seems like SL: intervene at your peril (not used by MPC).




      1. Duty to Retreat: MPC 3.04(b)(ii): if using deadly force, there is a duty to retreat, not one if using less force.

        1. State v. Adams: Abbott should have retreated from Michaels who was not armed, but not required as to other assailants because they had weapons and were attacking him.




      1. Force in Law Enforcement:

        1. MPC § 3.04 (1) OK when making arrest if officer believes that such force is immediately necessary to effect lawful arrest.

        2. (2) Limitations:

          1. (a) no force unless (i) actor makes knows purpose of arrest (or purpose is otherwise known or cannot reasonably be made known); and (ii) in case of warrant, warrant is valid,

          2. (b) deadly force not justifiable unless (i) felony; and (ii) authorized to act as a peace officer; and (iii) believes force creates no substantial risk to innocent and (iv) believes that: (1) crime involved use or threat of deadly force; or (2) substantial risk tha person will cause death or bodily harm if apprehension is delayed.

    NOTE: no immediacy clause here about the risk of future danger from the criminal

        1. (3) To prevent Escape from Custody – when force could justifiably have been employed to effect arrest

        2. (4) private person assistang an unlawful arrest is OK when (a) summoned by official and believes arrest to be lawful. (b) if summoned by a private person, additional requirement (ii) that arrest would be lawful if facts were as he believes them to be.

        3. (5) (a) Force is generally justified if actor believes it immediately necessary to rpevent commission of suicide, inflicting serious bodily harm upon himself, or committing a crime involving bodily harm, except:

          1. (i) limitation of force in protecting oneself, other, property, etc. apply

          2. (ii) use of deadly force NOT justifialbel unless (1) actor believes substantial risk that criminal will cause death or serious bodily harm to another and use force does not risk harming innocents; or (2) use of force necessary to suppress riot or mutiny and rioters have been warned that force will be sued if they don’t suppress




        1. Tennessee v. Garner: cop shot a fleeing burglar who he knew to be unarmed. TN statute said this was OK. argued this was an unconstitutional statute because it was an unreasonable seizure of criminal. Restricted police use of deadly force to:

          1. believes suspect poses a significant threat to cop or another and

          2. warn suspect before using force, if feasable

          3. Force is necessary to make arrest or prevent escape.



    1. Necessity Defense (Choice of Evils)

      1. Theory

        1. Sometimes people have to commit an illegal act as the lesser of 2 evils

        2. The law would be ridiculous if there was no room for exceptions

        3. Legislature does not focus on exceptions because it would be too difficult to raise every situation

        4. Arguments against: exception will swallow up the rule, legislature may have contemplated excuse and purposely structured the law to avoid it.

        5. Imminence: not the MPC standard – OK to commit act to avoid future danger

        6. Reasonableness of excuse decided by jury based on instructions from the judge.




      1. MPC §3.01 – Justification (1) is an affirmative defense; (2) does not abolish civil liability for action

      2. MPC §3.02 –

        1. (1) conduct actor believes to be necessary to avoid harm is justifiable if: (a) hare or evil sought to be avoided is greater than that sought to be prevented by legal prohibition; and (b) neither Code nor other law provides defenses for specific situations; and (c) no plain legislative purpose to exclude justification claimed.

        2. (2) When actor was reckless or negligent in bringing about situation requiring choice of harms, justification is unavailable in prosecution for offense established by mens rea of recklessness or negligence.




      1. Cases:

        1. People v. Unger: Escaped prisoner from IL work farm claims his escape was justified because of death threats and sexual assaults (never reported incidents from fear of reprisal). Escapees may claim defense of necessity and duress. Here duress was not valid claim (nobody forcing him to escape w/ death threat). Five factors relevant in justifying escape (all 5 elements need not be true): (i) specific threat, (ii) no time for compliant, (iii) no opportunity to result to courts, (iv) no evidence of violence against prison personnel, (v) immediately reports to proper authorities once he is safe.

        2. Dudley and Stephens: Men lost at sea kill and eat sick cabin boy to survive. Killing an innocent person is not justified to preserve one’s own life.

        3. Israeli Torture Case: necessity defense may not be used to promulgate rules permitting torture (“shaking”) to interrogate and prevent criminal activity. However, a necessity defense may be used if agents are indicted.

      2. Necessity defense in civil disobedience:

        1. Commonwealth v. Hutchins: can’t grow marijuana for medical purposes and claim necessity defense – opens the door to subjectivity, other options, separation of powers (legislature already said no).

        2. Commonwealth v. Leno: People illegally operated a needle exchange program and claimed necessity to prevent the spread of AIDS. Conviction upheld – (1) legislature dealt with the issue directly; (2) danger must be clear and imminent (effect of program speculative)

        3. U.S. v. Schoon: Protestoers disrupted an IRS oppice and disobeyed police orders, climed protests was necessary to stop American involvement w/ killings in El Salvador. Protesters performing indirect act of civil disobedience may not claim necessity defense.




    1. Choice of evils in Medical Cases (euthanasia and assisted suicide):

      1. Cruzan: Comatose patient sought order allowing hospital to discontinue life support. Competent adults have a due process right to refuse or discontinue life-preserving treatment, but for incompetents states may require life support absent a clear showing, while still competent, of intent to die in such circumstances.

      2. Washington v. Glucksberg: WA terminally ill patients and doctors seek declaratory judgment that statute banning assisted suicide is unconstitutional. Due process does not protect a “liberty” to commit suicide.




    1. Duress

      1. Theory: Duress is when actor is threatened with specific harm if he does not perform specified actions. Necessity is a justification; duress is an excuse.

        1. How liberal should duress be?

        2. How imminent must the danger be?

        3. Is the defendant responsible for putting himself into the situation?

        4. What is serious threat? Physical? Financial?

        5. Does the “lesser evil” idea drop out here, because we are dealing with an excuse?

        6. Objective vs. subjective standard: MPC formulation is a person of ordinary firmness.

        7. Contributory fault

        8. Acquittal vs. mitigation of sentence – should it always be the latter?

        9. Could members of criminal conspiracies exculpate themselves by threatening to kill each other early on in the planning?

      2. MPC § 2.09

        1. (1) affirmative defense that actor was coerced by use/threat of force against self or another, which “a person of reasonable firmness in his situation” would have been unable to resist. [NOTE: Objective person in subjective situation]

        2. (2) defense unavailable if actor recklessly placed self in situation in which duress is probably, unavailable if he was negligent in placing self in situation whenever negligence suffices to est. culpability of offense charged.

        3. (3) Not a defense that a woman acted on command of her husband

        4. (4) Section does not preclude defense under 3.02

      3. MPC § 2.10 – Military Orders are a defense if actor does not more than execute order of his superior, which he does not know to be unlawful.




      1. State v. Tuscano: Chiropractor convicted of conspiracy to write false insurance claims used common law duress defense, claiming he was forced to cooperate through threats from co-conspirators. NJ Supreme Court says that duress is s defense to any crime (except murder ) if actor was coerced by use/threat of unlawful force against himself/another, which a reasonable person in situation would be unable to resist.

      2. Contento-Panchon: appeals court admits duress defense when one of ’s passengers threatened to kill him and his family if he did not participate in drug trafficking.




    1. Intoxication

      1. MPC § 2.08 Intoxication

        1. (1) only a defense if it negatives an element of the offense

        2. (2) for recklessness, intoxication does not work if one would have been aware of the risk sober.

        3. (3) does not consitute mental disease

        4. (4) intoxication that is (a) not self-induced, or (b) pathological is an affirmative defense if actor lacks substantial capacity either to appreciate criminality/wrongfulness of act or to conform conduct to requirements of law

        5. (5) Definitions: © “pathological” intoxication grossly excessive in degree, give amount of intoxication, to which actor does nto know he is susceptible

        6. General points: intoxication must not be self-induced, or must be pathological. Drunk people are responsible for risks they would have been conscious of if sober.

      2. Cases:

        1. Regina v. Kingston: Man is drugged by blackmailer and molests boy under influence. Court rules that involuntary intoxication may allow lesser sentence (House of Lords: no excuse if evil intent is already there and just brought out by liquor).

        2. Roberts v. People: drunk who shot at victim claims voluntary intoxication prevented him from forming required intent to kill. Cout holds that voluntary intoxication is a defense if it made the defendant unable to understand (i) what he was doing, (ii) why he was doing it, or (iii) that he as likely to cause harm, but not that it merely made defendant unable to understand act was immoral. NOTE: “special rule” takes away something from defendant.

      3. Jurisprudence of drunk driving. Should one be able to raise a drunkenness defense? It seems that above a certain blook acohol level, this is a strict liability offense. Policy concerns. Is drunk driving treated less seriously because of class based concerns?

      4. Specific Intent vs. General Intent: dubious distinction, not in MPC. Some case law reflects the idea that intoxication can negate specific intent (e.g. intent to kill in “assault with intent to kill”), but not general intent (assault).




    1. Insanity/mental illness

      1. Theory

        1. Need insanity defense because we value connection between culpability and free will.

        2. Do the mentally ill lack free will? Can’t control myself vs. don’t understand the choices.

        3. Difference between mental disease and mental defect.

        4. What about battered women?

        5. Is the excuse over-inclusive or under-inclusive?

        6. Punishment of the insane through mandatory confinement. Is this punishing people who are otherwise not guilty, or are guilty people getting off by claiming insanity and then recovery at confinement hearing?

        7. What is the duty of the prosecution to raise insanity defense to protect society?

        8. The role of experts: are they just hired guns? How does a “scientific” evaluation help us the answer the moral questions regarding culpability?

        9. Faking the insanity defense – the case of Jimmy “the chin” Gigante, faked insanity for 20 years. Criminals have a social learning curve; many of them are able to utilize insanity to their advantage.

      2. Definitions of Insanity:

        1. Mcdonald Rule Standards for treatment may not be the same as standard for criminal responsibility. Defect includes any “abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.

        2. Am. Psyc. Assoc.  “conditions that grossly and demonstrably impair a person’s perception or understanding of reality.” This is more restrictive to a jury

        3. American Bar Assocaiton  “impairments of mind, whether enduring transitory, or to mental retardation which substantially affected mental or emotional processes of Dat time of allege offense.” [allows for temporary insanity]




      1. MPC:

        1. General: test cognitive ability (capacity to appreciate wrongfulness), and volitional capacity to conform to law (“volitional prong”); much criticized because hard to show if couldn’t or just didn’t conform.

    More recent movement to drop the volitional prong

    Superior to M’Naughten test because it doesn’t require total incapacity, only substantial incapacity.



          1. Supposed to apply to cases where  knew wrongness, but was overcome.

          2. Gives real prominence to psychiatrists who could testify that a person couldn’t act any other way.




        1. § 4.01 (1) person not responsible if at time of conduct, lacks substantial capacity either to appreciate criminality [wrongfulness] of conduct or to conform his conduct to requirements of law. (2) does not include abnormality manifested only by repeated criminal or anti-social conduct

        2. §4.02 admissibility/relevance of evidence of mental defect

          1. admissible when relevant to prove that defendant did or did not have state of mind which is an element of offense

        3. §4.03 mental defect or disease is (1) an affirmative defense, (2) evidence is not admissible unless, w/in 10 days after entering plea of not guilty, files written notice of insanity defense. (3) verdict must state acquittal because of insanity.

      1. M’Naghten’s case: shot the PM’s secretary (mistook him for PM) because he was persecuted by the tories in his home town. He was acquitted, but House of Lords invited all English judges to answer questions on the propert application of insanity defense.

        1. The legislative hearing produced the “M’Naghten Rule” that the jury should acquit a defendant as insane who:

          1. Has a mental disease

          2. Which cause a defect of reason

          3. Which made  unable to understand either the act’s nature/quality or its wrongness.

    NOTE: The rule contains no volitional prong like MPC; it is a cognitive test.

        1. Criticisms: vague (what is a defect? Words suggest a permanent or chronic impairment), objective standard of morality (decide by British courts)



      1. Hinkley: tried to kill President Reagan to impress Jodi Foster. It established a standard in the US similar to M’Naghten rule (still a cognitive test the focuses on inability to appreciate act:

        1. as a result of sever mental disease or defect

        2.  was unable to appreciate the nature and quality

        3. or wrongfulness of the act.

        4. Mental disease is not otherwise a defense




      1. Cases:

        1. Blake v. U.S.: Schizophrenic robbed a bank. Defense challenged notions of insanity. Ruling that one may be found not guilty by reason of insanity if he lacks “substantial” capacity to appreciate wrongfulness of conduct or to conform to law. Irrelevant after Hinkley rule

        2. State v. Crenshaw: Husband butcherd his wife for presumed infidelity, contending insanity and religious belief (Moscovite) let him to believ it awas a moral act. Court rules not insanity defense if defendant knew act was illegal, but thought it was moral anyway. The argument that the religion required the killing of unfaithful wives did not constitute deific command, because he claimed no direct contact with God.

        3. State v. Guido: woman kills husband and claims insanity at the time of the act. Was diagnosed with “anxiety neurosis,” and attorney spoke with doctors who changed their minds and declared insane. Doctors claim they changed their diagnosis after ’s attorney explained the mental disease under M’Naghten Rule is more than just psychosis. Expert witnesses can change insanity conclusions mid-trial w/o changing medical findings of ’s condition, if they do so in good faith.

        4. Brawner: Evidence of ’s mental condition is relevant to show that lacked requisite intent, even if condition falls short of legal insanity. This follows MPC more than Wilcox [OH holding that there is no middle ground: either plead insanity of don’t].

        5. Robinson v. California: convicted of being addicted to narcotics (arrested after cops found needle marks on his arm), challenges state’s right to criminalize a status. Court holds that it is unconstitutionally cruel to criminalize addiction alone, because addiction is a disease. There was no actus reus under the statute – no usage or possession of drugs – (concurrence) there was a mere desire to commit the crime of drug use in the state w/o any act. What about people born addicted to drugs?

        6. Powell v. Texas: challenged conviction of public drunkenness on grounds that he was a chronic alcoholic and punishment was against 8th Amendment– has an uncontrollable compulsion to drink, and once he drank, he had no control over his impulse to go out in public. Expert witness admitted that compulsion was not completely overpowering, and Powell admitted that on morning of the trial he had one drink and was able to stop afterwards. Holding limits Robinsonin the former case, could not be convicted of a status. In this case, can be convicted of act of appearing in public while intoxicated. Conviction upheld because there was an actus reus.

        7. U.S. v. Moore: Heroine addict was convicted of drug possession and trafficking, contends addiction is a defense to prosecution. D.C. Cir. Rules that drug addiction is not a defense for drug possession. Such defense would violate public policy, since it would tend to excuse every act committed for drug money. More like Powell than Robinson.

        8. Kansas v. Hendricks: question if state can impose of indefinite civil commitment on pedophile.



    Part IV – Specific Offenses


    1. Rape

      1. Theory:

        1. Are societal norms settled in this area?

        2. Is there a gender gap between males and females in this area? How does that affect the appropriateness of the criminal law?

        3. What type of crime is rape? Assault? Infringing upon sexual autonomy? Gross personal violation? Theft of sex?

        4. Issues:

          1. Consent – what constitutes consent? Is there a requirement to resist? What constitutes resistance? NOTE: earlier statutes require more resistance from a woman than more modern statutes.

          2. What about fear? How reasonable must fear to resist be? What if a victim is “frozen in fear”? Does no manifestation of refusal constitute consent?

          3. Capacity to consent (age, mental defect, etc.)

          4. Use of violence vs. economic coercion, blackmail, etc.

          5. What is sexual intercourse? Vaginal, oral, anal, digital penetration?

          6. Is every intrusion a separate crime?

          7. Spousal exception – does it apply?

          8. Statute of limitations – how soon must a woman report.




      1. MPC § 213.1 Rape and related Offenses

        1. (1) Male who has sexual intercourse w/ female not his wife guilty of rape if (a) compels her to submit by force, threat of force, kidnapping; or (b) administers intoxicant to impair judgment or prevent resistance; or (c) female is unconscious; (d) unde 10 years old [strict liability here]

    Rape becomes 1st degree felony if (i) actor inflicts bodily injury upon anyone, or (ii) victim was not a voluntary social companion of actor and had not previously had sexual contact. Any penetration, however slight, is sufficient; emission not required


        1. (2) Gross Sexual Imposition: Felony in 3rd degree if (a) compels her to submit by any threat that would prevent resistance of a woman of ordinary resolution [presumably economic threats/blackmail are valid here]; or (b) knows that she suffers from a mental disease or defect; or (c) knows she is unaware that sexual act is being committed upon her or submits because she mistakes him for her husband.

    NOTE: rape, gross sexual imposition, and statutory rape in MPC all are specific to males




      1. MPC § 213.3 – Corruption of Minors and Secduction [statutory rape]

        1. (a) the other person is least than 16, and actor is at least 4 years older [3rd degree felony; rest of section is misdemeanor]; or

        2. (b) other person is less than 21 years old, and actor is guardian or otherwise responsible for general supervision of welfare; or

        3. (c) other person is in custody of law or detained in hospital or other institution, and actor has supervisory or disciplinary authority; or

        4. (d) other person is a female induced to participate by a false promise of marriage




      1. § 213.4 Sexual Assault – misdemeanor, includes “sexual contact” (touching of sexual or other intimate parts for purpose of arousing or gratifying sexual desire)

        1. knows the contact is offensive to other person

        2. knows other person suffers from mental defect

        3. knows other person is uanaare

        4. other person is under 10

        5. used intoxicants to impare awareness

    [same standards as §213.3 also apply.]

      1. §213.5 Indecent Exposure – exposes genitals for purpose of sexual gratification of himself or any person other than his spouse under any circumstance which he knows are likely to cause affront or alarm

      2. §213.6 General Provisions

        1. Strict liability for victim under 10 years old. If criminality depends upon critical above age of 10, defense if actor can prove by a preponderance of evidence that he reasonably believed child to be above critical age.

        2. Spousal exclusion applies to persons living as man and wife, regardless of legal status of realtionshiop. Exclusion is inoperative to couples who are legally separated. Spouse or woman can always be convicted as an accomplice when he or she causes another person, not w/in exclusion to perform.

        3. Past promiscuity is relevant to statutory rape – must prove defense by a preponderance of evidence

        4. Must bring complaint w/in three months after incident, or in the case of less that 16 years old or incompetent, w/in 3 months of parent, guardian learning of offense.

        5. Must have at least circumstantial corroboration of victim’s testimony in order to convict. Jury shall be instructed to evaluate testimony of a victim in light of emotional involvement of witness and difficulty of determinig truth w/ response to sexual acts carried out in private.



      1. Cases:

        1. State v. Rusk: Woman drives man home from bar; he takes her keys, so she’ll come to his room with him. He allegedly rapes her. A victim’s reasonable rear fo death or serious bodily injury obviates need to show actual force or resistance. Conviction originally overturned, but upheld by higher appellate court

        2. People v. Warren: Female cyclist carried off into the woods by assailant. Conviction reversed because woman did not scream, fight back or attempt to flee. [outlying case: 5’2” woman saying nothing to 6’3” man who carries her into the woods implies consent? ? ?]

        3. State v. Thompson: [non-physical threats] High school principal allegedly forced one of his students to submit to sexual intercourse by threatening to prevent her from graduating from high school. Court affirmed dismissal of sexual assault charge. He would have been guilty under MPC § 213.3(b), or possibly of “gross sexual imposition” under 213.1(2)(a) if threat of preventing graduation is seen as preveting resistance by ordinary woman her age.

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