Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport

1. Basic Criminal Law: The United States Constitution, Procedure and CrimesAnniken U. Davenport

2. UNIT THREE: CRIMINAL LAW Chapter 9 Crimes Against the Person: Violence

3. Introduction • In this chapter we consider crimes of violence against the person that do not necessarily result in loss of life. • Violence against women is a major problem in the United States. • Rape and Other Sex Crimes • Rape was traditionally defined as forced sexual intercourse with a woman, not one’s wife. • Today, every state has amended its rape laws to reflect that both males and females can be victims of rape. • States generally have a hierarchy of sex crimes in their crime codes.

4. Most rape statues require that three elements be proven in a rape case. These are: • Proof that a sex act took place. • Proof that the charged sex act took place by force or threat of force. • Proof that the sex act performed by force or threat of force was without consent. • The Role of Physical Evidence in Rape Cases • Physical evidence plays a major role in rape cases. In particular, the presence of semen and saliva can be powerful evidence that sexual activity took place. • In a sexual assault case, it’s crucial that evidence be promptly gathered and preserved. • Prompt reporting and immediate medical attention are crucial to a successful prosecution.

5. Defense to Rape • The most common defense to a rape charge is that the victim consented to sexual activity. • Sexual activity and lack of consent can be proven directly by the victim’s testimony and indirectly through evidence such as bruises, medical damage, ripped clothing, and other signs of a struggle or that physical force had been used. • If the rape case involves a stranger and there was no biological evidence obtained from the victim, a common tactic is to claim that the victim misidentified her assailant. • Rape Shield Laws • Rape shield laws are a codified rule of evidence that provide for the exclusion of a rape victim’s sexual history unless it is directly relevant to his or her consent or other evidence in the case.

6. Evidence that the victim had consensual sex with the defendant before is admissible if the court finds it relevant to the questions of whether the victim consented this time. • Evidence that the victim discussed wishing to have a sexual relationship with the defendant before the alleged rape may also be admissible. • Assault • Assault is an act of force or threat of force intended to inflict harm upon a person or to put the person in fear that such harm is imminent. • Battery was the actual physical harm. • Some state have enacted statutes that create a special class of assault for the unauthorized administration of an intoxicant.

7. Essential Elements of Assault • The defendant commits assault if he or she: • Attempts to cause or knowingly, recklessly, or intentionally causes bodily injury to another; or • Negligently causes bodily injury to another with a deadly weapon; or • Attempts by physical menace to place another in fear of imminent serious bodily injury. • The statue defines bodily injury as “impairment of physical condition or substantial pain”. • Serious bodily injury is: ”Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

8. Generally aggravated assault can be charged if the state can prove that the defendant attempted to cause or caused serious bodily injury to the victim under circumstances manifesting extreme indifference to the value of human life. • Simple assault is often graded as a misdemeanor, while aggravated assault is generally graded as a felony of the first or second degree. • Domestic Violence • Most states do not make domestic violence a specific crime. • The best way to look at domestic violence may be to view it as a syndrome, consisting of a series of criminal acts perpetrated against a spouse or paramour rather that a specific crime.

9. Federal Efforts to Combat Domestic Violence • Congress passed the Violence Against Women Act (VAWA) in 1994, and declared that “all persons within the United States shall have the right to be free from crimes of violence motivated by gender.” • Essentially, VAWA gave victims of domestic or sexual violence a federal private right of action against the assailant for damages. • The first test of the statute came when a student at Virginia Tech claimed she had been forcibly raped by two members of the varsity football team. • The U.S. Supreme Court heard the case, United States v. Morrison, and concluded Congress didn’t have the authority to “…regulate non-economic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.”

10. The Supreme Court decision likely will mean Congress will not set up a parallel federal criminal and tort law system. • In response to the Morrison decision, VAWA was amended in 2000. • Congress focused on providing criminal penalties that punish behavior that crosses state line. • The major criminal provisions are: • Interstate Domestic Violence • Coercing Across State Lines • Interstate Violation of a Protective Order • Interstate Stalking • Possession of Firearm

11. Hate Crimes • In recent years there has been an increase in the number of state and local governments that have enacted what are popularly known as hate crimes. • Generally, hate crimes consist of enhanced punishment for crimes that are motivated by hate or bias against a group, ethnicity, or religion. • There is hate crime legislation covering a wide range of bias, including: • Race, ethnicity, and religion • Sexual orientation • Gender • Institutional vandalism and interference with religious practices • Mental and Physical disability • Age • Political affiliation

12. Essential Elements of a Hate Crime • To obtain a conviction for a hate crime, the prosecution must prove the underlying criminal offense such as murder, rape, assault, battery, or harassment; and • Also prove that the defendant was motivated to commit the crime by bias against a group or category covered by the specific hate crime law in the jurisdiction. • The Supreme Court has upheld enhanced penalties for hate crimes. • Abduction and Kidnapping • All 50 states as well as the federal government have laws in place criminalizing abduction, whether the victim is a child or an adult.

13. State Statutes • Kidnapping is generally defined as the crime of taking and detaining a person against his will by force, intimidation or fraud. • Abduction is generally defined as the illegal carrying away, by force or deception, of a person. • Essential Elements of Kidnapping and Abduction • To prove kidnapping, the government must show that the victim was taken or detained against his or her will. • Kidnapping doesn’t require that the perpetrator demand a ransom.

14. Federal Statutes • Federal law defines a kidnapper as someone who “unlawfully seizes, confines, inveigles, decoys, kidnaps abducts, or carries away and holds for ransom or reward or otherwise any person…” and transports that person “… in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary if the person was alive when the transportation began.” • Child Abuse and Neglect • Since Elizabethan days government has served in the role of parens patriae. That role has required government to protect the interests of those who cannot protect themselves.

15. Corporal Punishment and Child Abuse • One of the first areas of conflict between the criminal law and parental authority is in the area of corporal punishment • Pennsylvania provides that the use of force on another person is justifiable if: • The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor; • The force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct; and • The force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation. • The reality is that corporal punishment as a defense allows for a considerable amount of leeway for parents.

16. Child Sexual Abuse • The medical definition of child sexual abuse is very broad and encompasses a long list of potential criminal charges, including rape, indecent assault, statutory rape, incest and sexual assault. • Depending on the jurisdiction, the fact that the defendant believed a consenting sex partner was over the age of consent in the jurisdiction may or may not be a defense. • It is a federal offense to cross state lines with the intent to engage in a sexual act with a child under 12 or to transport a child across state lines in order to engage in criminal sexual activity with that child. • Practice Pointers • Those working with victims of domestic abuse should guard against unrealistic expectations.