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Crimes Elements & Examples CPT Kennebeck Law Division.

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1 Crimes Elements & Examples CPT Kennebeck Law Division

2 Overview A.Elements of a crime B.General nature of criminal law C.Trespass Offenses D.Crimes against the person E.Arson F.Sex crimes G.Theft Offenses H.Drug Offenses I.Inchoate Offenses J.Defenses

3 Terminal Learning Objective Action: Discuss specific crimes, elements and the UCMJ. Condition: Given a guided classroom discussion. Standard: Discussed specific crimes, elements and the UCMJ.

4 Elements of a crime and Max Punishment

5 Elements of a Crime Knowing the name of a crime is not enough: –Look it up!! Investigation/prosecution depends on understanding the elements EACH element must be proven beyond a reasonable doubt Motive IS NEVER an element of a crime

6 Elements of a Crime Criminal Intent General intent crimes rare (e.g., battery) –DO NOT need to prove accused intended the precise harm or result which occurred –Must prove act was VOLUNTARY so that accused’s act was not accidental Specific intent crimes –Accused possessed the mental state specified by the statute –Cues : “knowingly,” “willfully,” “for the purpose of,” “premeditated design,” & “with intent to”

7 Severity of Offense The severity of an offense is gauged by its maximum punishment As between several offenses, the one that has the highest maximum punishment is the most serious offense What are the punitive discharges and which is most severe?

8 General Nature of Criminal Law Applicable criminal codes: –Uniform Code of Military Justice [UCMJ] –Federal statutes –State statutes Assimilation  adoption –Art. 134, UCMJ, assimilates federal criminal laws –18 USC §13 assimilates state criminal laws

9 General Nature of Criminal Law: Article The General Article Prejudicial to GOADITAF –Direct and palpable impact –Not remote or indirect possibility Service-discrediting –Directly injure reputation of service –Tend to bring service into disrepute Crimes and offenses not capital –Assimilation

10 General Nature of Criminal Law: Article Conduct Unbecoming Officer Examples: –Cheating on examination –Insulting another officer –Consorting with known prostitutes –Nonsupport

11 Disrespect and Disobedience Article 89: Article 90: Article 91: Article 92: Disrespect toward an officer Assault or disobey an officer Assault, disobey or disrespect an NCO, warrant or petty officer a.Disobey General order or reg; b.Disobey some other order c.Dereliction of duty

12 What is disrespect? –Behavior that detracts from good order and discipline –Name-calling, refusal to salute, marked disdain –Insolence, undue familiarity, other rudeness Must “victim” be in the execution of his office? –NO for officers –YES for NCO, warrant & petty Disrespect

13 Superior to accused? –For Officers, MUST be superior Same armed force? Must be superior but need not be in chain Different armed forces? Must be superior AND in chain of command –For NCO, warrant & petty, superior = added element Knowledge? –Accused MUST have knowledge that person disrespected had the alleged rank

14 Disrespect Truthful remarks OK? –NO; TRUTH IS NO DEFENSE Actual presence required? –Officers: Need not be present –NCO, warrant & petty: MUST be present (within sight or sound of offender)

15 Disrespect Is “victim’s” behavior always irrelevant? –NO, victim can lose protected “status” –DIVESTITURE: behavior that departs substantially from required standards appropriate to rank or position –Marine officer said, “Let me see you put me flat on my back” Enlisted Marine did – NOT DISRESPECT What about assault though?

16 Disrespect: Differences between Officer and NCO offenses Commissioned officer cannot be found guilty of Disrespect to NCO (but try Article 133) Disrespect to NCO does not require that “victim” be accused’s superior (required in Article 89) Disrespect to NCO requires that “victim” be in execution of office (not true for officers, Article 89) Disrespect to NCO requires that disrespectful behavior or language be within the sight or hearing of the “victim” (not true for officers, Article 89)

17 Disrespect Examples Accused contemptuously turned and walked away from superior who was still talking to accused - Ferenczi, 27 CMR 77 Accused greeted female superior with “Hi, sweetheart” - Dornick, 16 MJ 642 Accused pointed finger at trial counsel and said, “You are going to get it.” - Gray, 14 MJ 551

18 Disrespect Examples “Sergeant, well, if you don’t like it, I’ll take you in the back room and fight you too” - Richardson, 6 CMR 88 [When read his Art. 31 rights] “Aw, man, I don’t have time to listen to this sh*t” - Lewis, 7 MJ 348 “If you have something to say, say it to my face.” - Barber, 8 MJ 153

19 Disobedience Common Themes Lawfulness of orders presumed –You disobey a superior’s order at your peril Order must relate to a military duty –accomplish a military mission or safeguard or promote the morale and discipline From someone with authority

20 Disobedience Common Themes Ideally, an enforceable order is: –A positive command –Specific –Contains time for compliance But something less will often do –Politely phrased orders are still orders –Lack of suspense implies immediate compliance expected

21 Disobedience Personal orders [Arts. 90 (Officer), 91(NCO), and 92 (MP, sentinel) –Knowledge of “victim’s” status must be proven –Can be proven by circumstantial evidence “Impersonal” orders [Art. 92] –AR or general order (GO or GCMCA) –Accused’s lack of knowledge not a defense

22 Failure to Obey Other Lawful Order or Regulation [Art. 92, UCMJ] 1. Lawful general orders or regulation – Lack of knowledge not a defense 2. Other lawful orders –Knowledge required –MPs, guards, and sentinels –Also policy orders from CO 3. Dereliction of duty imposed by: –Treaty, Statute, Regulation, Lawful order, SOP, or custom of the service

23 TRESPASS OFFENSES Burglary [Art. 129, UCMJ] Housebreaking [Art. 130, UCMJ] Unlawful Entry [Art. 134, UCMJ]

24 Trespass Offenses Offenses are similar because all involve an unauthorized entry Offenses differ mainly because each involves different: - Intent by accused - Kind of place entered

25 Burglary - Elements Accused Unlawfully Broke and Entered Dwelling house Of another Breaking in the nighttime Entering in the nighttime Breaking with the intent to commit [except 123a] Entering with the intent to commit [except 123a]

26 Burglary - Elements: Intent Both breaking and entering must be done with the intent to commit a crime inside Crime need not be actually committed so long as intent existed at the time of the breaking and the entering Criminal intent formed after breaking or entering will not suffice to support burglary Intended crime must be a violation of Arts [except 123a]

27 Housebreaking - Art. 130 A lesser included offense of burglary No breaking required “Building or structure of another”: –Includes rooms, tents, houseboats, storage sheds, holds, boxcars, enclosed trucks –Need not be in use at time of entry Can occur in daytime or nighttime Intent: Must intend to commit a UCMJ violation [except a purely military offense] at the time of entry

28 Unlawful Entry - Article 134 A lesser included offense of burglary and housebreaking No breaking required WHERE? –Real property (land) -OR- –Structure (usually used for habitation or storage) –Usually would not include vehicle even if used for storage [but could be an Art. 134 offense]

29 Unlawful Entry - Article 134 Specific criminal intent to commit a criminal offense of any kind once inside is NOT REQUIRED Entry must be “unlawful”: Made without the consent of anyone authorized to permit entry or without other lawful authority Must be either service-discrediting or prejudicial to GOADITAF

30 Trespass Offenses BurglaryHousebreakingUnlawful Entry Breaking required Breaking NOT required Dwelling houseBuilding Real or personal property amounting to a structure Specific intent to commit Art offense at time of break & enter Specific intent to commit any “nonmilitary” offense at time of entry General intent, w/o permission, AND service-discrediting or prejudicial to good order & discipline

31 Applying the Elements At 0900 hrs SFC enters dining facility and finds PFC on couch in his office sleeping. PFC says he was coming home from a party - was cold/tired - so he entered the facility through an open window to get warm. What is the misconduct?? Offenses? Issues?

32 Example Soldier A enters B’s home. The door is ajar, but A has to move the door a little to enter. A enters to retrieve his 9mm handgun (actually A agreed to sell the gun to B, but B has not finished paying for it). –What is the most serious offense committed by A? –What if he entered at 1300 hours?

33 Crimes Against the Person 1.Murder 2.Manslaughter 3.Negligent Homicide 4.Assault a)Simple b)Battery (also called ACB) c)Aggravated

34 UCMJ Homicides Intentional Killings Reckless Killings Deaths a consequence of accused’s decision to commit a crime Serious Negligence

35 UCMJ Homicides Murder –Premeditated murder –Intentional murder –Wanton murder –Felony murder Manslaughter –Voluntary manslaughter –Involuntary manslaughter Negligent homicide

36 Murder - Art. 118, UCMJ 1.Premeditated murder - capital 2.Intentional murder 3.Wanton murder 4.Felony murder - capital

37 Premeditation Two components: –A consciously conceived thought of taking life, AND –An intentional act or omission by which the life is taken Order of these components immaterial Lack of delay between formation of mental element and action is immaterial

38 Premeditation: Proof of Intent Confession Inferred from circumstances: –US v. Matthews [ACMR 1982] - Victim stabbed 53 times –US v. Teeters [ACMR 1981] - Victim pursued until she collapsed unconscious; accused tied her, raped her & after putting towel around neck to catch blood, slit her throat; accused then stabbed victim 32 times –US v. Bullock [ACMR 1981] - Prior anger & threats indicative of premeditation

39 Premeditation: Transferred Intent US v. Black [CMA 1953]: –Accused and Lewis argue –Accused: “I have 8 rds in my M-1 for you” –Accused gets M-1 and finds Lewis –Accused fires, hitting Lewis in left chest –Bullet exits right rear chest & hits Kirchner –Accused: “Sorry, buddy, it was not meant for you… it was meant for Lewis” –Kirchner and Lewis die Convicted of premeditated & unpremeditated Should have been convicted of 2 x premed.

40 Premeditated Murder Capital Offense - RCM 1004 Premeditated murder is a capital offense if: 1.Accused in confinement for at least 30-year term 2.Accused committed murder while committing or attempting to commit enumerated offenses 3.Accused committed murder for hire 4.Accused hired or compelled other to murder 5.Accused murdered to avoid apprehension or effect escape from custody or confinement 6.Accused guilty in same case of another murder

41 Premeditated Murder Capital Offense - RCM 1004 Premeditated murder is a capital offense if: 7.Accused murdered protected person (US official, cop, foreign official, firefighter, military officer or NCO in execution of office) 8.Accused murdered w/intent to obstruct justice 9.Accused first intentionally inflicted substantial physical harm or prolonged, substantial mental or physical pain and suffering on victim Mandatory minimum - imprisonment for life

42 Intentional Murder Intentional murder is unpremeditated Can result from: –Reluctance to refer as capital offense –Prosecution unable to convince judge or jury beyond reasonable doubt that premeditation existed –Reluctance to find guilty of capital offense MCM example: Housebreaker kills homeowner suddenly blocking his escape Intentional murder more serious than voluntary manslaughter

43 Wanton Murder - Mental Elements Requires intentional act (just don’t care) –“He knew it could kill and decided to do it anyway” –Failure to act is NOT enough Requires knowledge that death or great bodily harm a probable consequence of that intentional act –“He knew he could easily kill somebody”

44 Wanton Murder - Action Elements Action must be of nature to be inherently dangerous to others –Examples: Blasting in housing area Staging sham firefight in inhabited area Acts must show a “wanton disregard” for human life “Anyone would know he could easily kill somebody”

45 Wanton Murder - In Plain English He knew his actions could result in death, A reasonable person would know this He decided to do it anyway Wanton murder is an unpremeditated murder

46 Felony Murder - Elements A named or described person is dead Killing was unlawful At the time of the killing, accused was engaged in the perpetration or attempted perpetration of 1.burglary, 2.robbery, 3.rape, 4.sodomy, or 5.aggravated arson The death resulted from an act or omission of the accused –In other words, the death was a consequence of the perpetration or attempted perpetration of one of these offenses

47 Felony Murder - Example US v. Borner [CMA 1953] –3 soldiers took 3 pistols into Korean hills to hunt birds and ended up in isolated village –One expresses desire for sexual intercourse, another agrees, & both enter house occupied by 2 women while third acts as look-out –One rapes woman while her sister-in-law hides –Sister-in-law’s husband responds to scene –Someone shoots and kills husband –HELD: All three soldiers guilty of felony murder

48 Manslaughter Art Voluntary manslaughter 2.Involuntary manslaughter –Culpably negligent act …or –While perpetrating an offense affecting another

49 “Heat of Sudden Passion” “Adequate Provocation” Heat of passion = Act and intent to kill provoked by fear or rage causing total loss of self-control Adequate provocation = Sufficient to send a reasonable man into an uncontrollable rage No cooling off period: –Fatal attack must be made before self-control returns –If sufficient time passes between provocation and fatal attack for reasonable man to “cool off,” crime is not voluntary manslaughter

50 Voluntary Manslaughter Essentially, this kind of provoked passion is a partial affirmative defense to intentional murder Reduces what would otherwise be intentional murder to the less serious crime of voluntary manslaughter

51 Heat of Passion – Adequate Provocation US v. Saulsberry [ACCA 1995] Accused quietly watching TV when victim enters his room uninvited, takes drink, and becomes verbally abusive Shoving match ensues, which accused quits Victim attacks accused from rear, throws him on bed and begins choking him, pinning him in front of others Accused retreats to corner of room, victim begins taunting him verbally In the accused’s face, victim says, “What are you going to do, mother------, f--- you, what are you going to do, chicken----? Do you want me to teach you a lesson?” Accused stabs victim once in the heart CONVICTED of intentional murder HELD: Reduced to voluntary manslaughter - “These provocations were adequate to provoke uncontrollable rage, fear and passion in a reasonable person.”

52 Involuntary Manslaughter 1.Culpable negligence - death is foreseeable 2.While committing an offense directly affecting the person, other than those covered by felony murder

53 Involuntary Manslaughter Culpable Negligence “Degree of carelessness greater than simple negligence” Examples: –Setting up range with houses in zone –Triggering pistol at another without clearing –Assisting the injection of heroin in another –Repeatedly striking & shaking crying infant –Leaving Child with known abusive spouse!

54 Involuntary Manslaughter While Committing Offense Affecting the Person “Misdemeanor manslaughter” Rule: Perpetrating or attempting to perpetrate an offense other than burglary, robbery, rape, sodomy, or aggravated arson “Directly affecting”: Offense must affect a particular person rather than society in general

55 Negligent Homicide Death resulted from simple negligence of accused Simple negligence: An act or omission of a person who is under a duty to use due care, but who fails to use due care of a reasonable person in similar circumstances Examples: –Running red light, hitting and killing another –Erecting radio antenna next to high tension lines

56 Intent versus Negligence Degrees of intent: 1.Premeditation 2.Specific Intent 3.Wanton disregard (reckless, immoral, shameless) 4.Culpable negligence (blameworthy, degree of carelessness greater than simple negligence) 5.Simple negligence (failure to exercise that degree of care expected of reasonably prudent individual)

57 Homicide Example Man in an alley is raping an unconscious girl behind a dumpster. Bystander is walking down the alley when he and rapist see each other. Rapist suddenly pulls out his knife and slits bystander’s throat. –What is the most serious offense rapist can be charged with? –What if rapist is now a burglar and sees homeowner suddenly while in the home, then kills? What if it’s 0800 hours? What if homeowner just has a heart attack?

58 Homicide Example Grandma has temporary custody of child while Mom serves sentence for drugs. Mom gets out and wants child. Child has been beaten before. Child comes to Grandma’s over the next few months after school, and Grandma can see evidence of new beatings. One day, child is lethargic and looks ill, and he was apparently beaten the night before (marks on child’s back). Child dies that night. –What is the most serious offense Grandma can be charged with?

59 Robbery - Article 122 Accused wrongfully took certain property From the victim’s person or from the possession and in the presence of the victim Against the will of the victim By means of: –Force and/or violence OR –Putting the person in fear of force and/or violence Such property not belonging to the accused Such property of some value Intent to steal (permanently deprive)

60 Robbery - Elements “Taking” required: –Forcible retention or withholding insufficient “From the victim’s person or from the possession and in the presence of the victim”: –Holding victim while his property is removed from another building and then destroyed in front of him will suffice

61 Robbery - Elements: “By means of…” 1.Force or violence (or both) –Picking pocket by stealth not sufficient –Purposeful bump by pickpocket will suffice –Knocking unconscious will suffice 2.By fear of: –Immediate or future injury –To person or property of: Self Member of family or a relative Anyone in victim’s company at time of robbery

62 Robbery - Elements: “By means of…” IF force, violence, or both are used, THEN fear is not required IF victim is placed in reasonable apprehension [fear] of immediate or future injury, THEN actual force not required

63 Example Sneak up from behind and hit on head, take wallet? Point a gun and take wallet? Pick pocket and take wallet? 2-man-team, one bumps, the other picks wallet?

64 Example Soldier’s wallet is taken from him at knife-point. Soldier is NOT in imminent fear because he is a black belt in Karate and knows he can defend himself from a knife-wielding assailant. Soldier does not attack assailant or defend himself. He just hands over the wallet. –What is the most serious crime committed? –Was there any type of assault?

65 Simple Assault - Art. 128 a. Assault by offer b. Assault by attempt

66 Elements of Simple Assault Accused Offered or Attempted To do bodily harm To a certain person With unlawful Force or violence

67 Offer vs. Attempt OFFER “An unlawful demonstration of violence, either by an intentional or culpably negligent act or omission, which creates in the mind of another a reasonable apprehension of immediate bodily harm.”

68 Offer vs. Attempt ATTEMPT “Requires a specific intent [by the accused] to inflict bodily harm and an overt act” –Overt act = an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm.

69 Offer vs. Attempt Investigative Focus Attempt (key = mind of the accused) –Did the accused specifically intend to inflict bodily harm on the victim? Offer (key = mind of the victim) –Did the actions of the accused cause the victim to form a reasonable apprehension of immediate bodily harm? Can both types exist together? – Yes, assaults are not mutually exclusive.

70 Simple Assault Must physical contact be made to constitute either assault by offer or by attempt? –No, if physical contact is made, see ACB - Art. 128 Can mere words or threats of future violence constitute either an assault by offer or by attempt? –No, but see provoking speeches - Art. 117 –Maybe, if accompanied by menacing acts or gestures Can “mere preparation” constitute either assault by offer or by attempt? –No

71 Assault Consummated by a Battery [ACB] - Art. 128, UCMJ - Elements Accused With unlawful Force or violence Did bodily harm To a certain person

72 ACB - Elements - “Unlawful” “Lawful” force = OK –E.G., MPs break up fight or forcefully apprehend –Playing football or rugby (within the rules) Even a “touch” is enough, but touching must be intentional or culpably negligent Touching merely for the purpose of attracting attention is not unlawful Mutual affray is unlawful

73 ACB - Elements - “Bodily Harm” Covers any harmful or offensive touching, however slight Examples: –Nonconsensual kissing –Nonconsensual unbuttoning blouse –Spitting on aware victim –Giving a shot to sleeping victim

74 ACB - Elements - “Bodily Harm” Pain not required Leaving marks not required Direct contact not required –Striking a victim’s skittish horse –Loosing a vicious dog on victim –Cutting clothes of victim without touching victim

75 Aggravated Assault (Distinguished from Simple Assault and ACB) Simple Assault: –Blow never landed ACB: –Harmful or offensive touching, however slight Aggravated assault: 1.Used means likely to inflict grievous bodily harm, OR 2.Grievous bodily harm was intentionally inflicted

76 Aggravated Assaults Two separate crimes of aggravated assault, both of which are committed in the typical aggravated assault scenario: 1.Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm (START) 2.Assault in which grievous bodily harm is actually (intentionally) inflicted (FINISH) (Actual, intentional infliction of grievous bodily harm is more serious)

77 Aggravated Assault “Means Likely” Accused unlawfully With a certain weapon, means or force Used in a manner likely to produce death or grievous bodily harm Attempted to do, offered to do or did Bodily harm To a certain person

78 “Grievous Bodily Harm” Grievous bodily harm = Serious bodily injury –Does not include: Black eye Bloody nose Or other minor injuries

79 Dangerous Weapon – “Means Likely” Refers to “ordinary items” being used as a weapon –Hammer –Bottle –Rock –Pipe –Boiling Water Focus is on how the item is actually used

80 Dangerous Weapon – “Means Likely” Firearms: –Use of loaded firearm increases punishment –Just pointing an unloaded firearm (not using it as club) is NOT an instrumentality (it’s just a simple assault with a more severe punishment) Can include another person: –US v. McGee [ACMR 1989] - Accused leaves child with boyfriend

81 Dangerous Weapon – “Means Likely” Grievous bodily harm need not ACTUALLY occur Examples: –Bottle, pool cue, flashlightvicious swing –Firecrackeravalanche –Sugar packet plane fuel tank –Fistshelpless victim –Steel-toed bootshead of victim

82 Unwarned sex: –by HIV-infected accused is an aggravated assault with a means likely to produce death or grievous bodily harm (with or without condom) –by genital herpes-infected accused is an aggravated assault with a means likely to produce death or grievous bodily harm (only without condom) Dangerous Weapon – “Means Likely”

83 Aggravated Assault “ GBH Intentionally Inflicted” Accused Unlawfully With the specific intent to inflict grievous bodily harm With force or violence Assaulted A certain person And grievous bodily harm was actually inflicted upon the certain person

84 ADD Firearm UNLOADED firearm, point only –Simple Assault (DD, 3yrs) LOADED firearm, point only –Aggravated Assault “means likely” (DD, 8yrs) STRIKE with firearm (loaded or not) –Injury? If GBH, then “intentionally inflicted” If no GBH, then “means likely” SHOOT firearm –Injury? Attempted murder or murder Aggravated assaults

85 ADD Firearm: Examples Point an unloaded firearm? Strike with a loaded firearm? Point a loaded firearm? Shoot a loaded firearm? First question to answer at the crime scene? Simple Assault Agg Assault Murder or Assault LOADED???

86 Example PFC Doe is sitting in the mess hall. He sees SPC Cheese and gets mad (Doe should have been promoted before Cheese). Doe grabs a chair and swings it as hard as he can at Cheese’s head. Cheese luckily ducks just in time. –What is Doe guilty of? –What if Doe actually hit Cheese?

87 Example Two soldiers argue and eventually soldier A hits soldier B in the mouth with a closed fist? Soldier B then hits A with a steel flashlight. –What is the most serious crime soldier A can be charged with? –What about soldier B?

88 Options other than Assault Riot or breach of peaceArt. 116 –Violent in nature (e.g.: discharge a weapon) Provoking speeches/gesturesArt. 117 –Words that would make a reasonable react with violence Conduct unbecomingArt. 133 –Lawlessness, indecorum, cruelty Communicating a threatsArt. 134 –Intent to wrongfully injure

89 Arson - Art. 126 Aggravated arson Confinement –Inhabited dwelling20 years –Occupied structure 20 years Simple arson –Value  $1001 year –Value > $1005 years Common elements: –Accused burned or set on fire –Act was willful and malicious –Property belonged to someone & had value

90 Arson - Art. 126: Distinctions Aggravated (1a) Aggravated (1b)Simple (2) Inhabited dwelling Structure Property of another Human being inside at the time Accused knew or should have known human being inside at the time

91 Aggravated Arson - Art. 126 Distinctions Aggravated Arson can be to your own house if occupied. Structure = Theater, Church, Boat, Trailer, Tent, Auditorium, or Shelter. No injury required

92 SEX CRIMES

93 Sex Crimes 1.Rape 2.Carnal Knowledge 3.Sodomy 4.Indecent assault 5.Indecent acts or liberties with a child 6.Indecent acts with another 7.Indecent exposure 8.Adultery 9.Prostitution and Pandering

94 Rape - Art. 120(a), UCMJ - Elements Accused committed an act of sexual intercourse –Any penetration, however slight, suffices By force And without consent

95 Rape – Elements Force Force can be actual or constructive Constructive force [enough to penetrate] may suffice if: 1.Victim incapable of consenting (passed out) 2.Resistance is futile or is overcome by threats [express or implied] of death or physical injury OR 3.Nonphysical coercion used to make victim comply, for example: Parental compulsion Military authority

96 Rape – Elements Lack of Consent Generally means: –Saying NO, or showing physical resistance –More than a mere lack of acquiescence But, lack of consent can be inferred IF: –Resistance would have been futile; –Consent was overcome by threats of death or great bodily harm; OR –Victim was unable to resist because of lack of physical or mental faculties

97 Rape – Elements Lack of Consent She DID consent? –If victim fails to make her lack of consent reasonably manifest by taking such measures of resistance as are reasonably called for by the circumstances, the inference MAY be drawn that she DID consent. Victim’s physical resistance = manifestation of lack of consent

98 Rape – Certain Issues Spouse can be charged with raping spouse Voluntary intoxication not a defense Consent obtained by fraud can be a defense (e.g., promise to marry, pay)

99 Example Soldier A enters B’s room. A is 250 pounds and B is 120 pounds. A is 6’ 3” tall. A has sexual intercourse with B. B says nothing and does nothing. –Has A committed rape? –What if A held a gun to B’s head? –What if A and B are same sex?

100 Carnal Knowledge, Art. 120 Vaginal intercourse with a child under the age of 16, not your spouse, that does not involve force. Under Military and Federal criminal law, a child under the age of 16 may not legally consent to a sex act. Criminal liability is based on the absence of “legal” consent, not “factual” consent. Example: Nineteen year-old soldier has consensual sexual intercourse with her 15 year-old boyfriend. Max punishment: V < 12 = Life + DD; V > 12 but <16 = 20 yrs + DD

101 Sodomy, Art. 125 Oral or anal sexual intercourse with another person (same or different sex) or with an animal. Forcible sodomy raises the same Force and Lack of Consent issues as rape. Consensual sodomy is an offense in the Armed Forces. No marital exception. Max punishment: –By Force & w/o Consent: Life + DD; –With a child < 12: Life + DD; –With a child > 12 but < 16: 20 yrs + DD; –Consensual: 5 yrs + DD

102 Indecent Acts With Another Art. 134 Indecent: immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave morals with respect to sexual relations. Consent is not an issue Example: A couple engages in sexual intercourse in a commo van during a field training exercise. Max punishment: 5 yrs + DD

103 Indecent Assault Art. 134 An unlawful touching of another, not your spouse, where the touch is intended to gratify your lust or sexual desires. “Indecent” = conduct relating to sexual impurity that is grossly vulgar, obscene, or tends to excite lust and deprave morals with respect to sexual relations Example: On the pretext of correcting a uniform discrepancy, a male soldier repeatedly brushes his hand over a female co-worker’s breast. Max punishment: 5 yrs + DD

104 Indecent Acts with a Child Art. 134 An unlawful touching of a person under 16, not your spouse, where the touching arouses, appeals to, or gratifies your lust, passion, or sexual desires, the victim’s, or both Physical contact is required for this offense. Consent not a defense (remember that a child < 16 cannot “legally” consent to sexual acts) Example: Suspect digitally penetrates his 3-year-old daughter’s vagina Max punishment: 7 yrs + DD (THIS IS A FAIRLY COMMON CRIME IN THE SERVICE)

105 Indecent Liberties with a Child Art. 134 Liberties (no contact) versus Acts (contact) Is conducted in the presence of a person under 16, not your spouse, that is intended to arouse, appeal to, or gratify your lust, passion, or sexual desires, the victim’s, or both. No physical contact is required for this offense. Examples: A step-father requires his 13-year-old step-daughter to view a pornographic video with him; or a soldier masturbates in a 14-year-old girl’s presence. Max punishment: 7 yrs + DD

106 Indecent Language Art. 134 Oral or written communication to another which contains indecent language. “Indecent Language” = grossly offensive, shocks the morals, or incites lustful thoughts. Example: A male soldier masquerading as a woman calls women who have recently delivered babies to ask questions about their breast feeding experiences. Max punishment: –Victim < 16:2 yrs + DD –Other cases: 6 months + BCD

107 Indecent Exposure Art. 134 Intentionally exposing a part of your body to public view in an indecent manner. Negligent exposure is not punishable under the UCMJ. Example: A male soldier works out in the nude on a trampoline in his backyard and deliberately bounces above the level of the privacy fence around his yard. Max punishment: 6 months + BCD

108 Adultery Art. 134 Engaging in sexual intercourse with another person if you or the other person are married to someone else (either party is married) Must also demonstrate prejudice to good order and discipline or service discrediting conduct. Commonly added to other offenses, but seldom pursued on its own. However, if there is adultery, there is often other misconduct. Max punishment: 1 yr + DD

109 Prostitution and Pandering Art Engaging in 2.Compelling, inducing, enticing or procuring 3.Arranging or receiving consideration Prostitution = 1yr; Pandering = 5yrs New offense (13 Nov 05): –Patronizing a Prostitute Max punishment: 1 yr + DD

110 Theft Offenses 1.Larceny 2.Wrongful appropriation 3.Obtaining Services by Fraud

111 Larceny - Art. 121(a): Elements Accused wrongfully took, withheld OR obtained Certain tangible property From the possession of the owner or any other person Such property having some value With the intent to permanently deprive...

112 Larceny - Elements: Property of Another and Value Property = things, money, negotiable instruments –Not services [taxi, phone, gov’t quarters] Lost or abandoned property? Value –Fair market value –A penny will do From owner or from possessor?

113 Larceny – Elements Taking, Withholding or Obtaining Must be wrongful (without consent, by fraud) There must be some movement of the property OR exercise of dominion or control over property There must be a “carrying away” Includes taking by false pretenses Includes embezzlement [wrongful withholding]

114 Larceny – Elements Wrongful NOT wrongful if: –authorized by law –authorized by apparently superior orders OR –done by a person who has an equal or greater right to possession than the right of the person from whom property is taken Sham marriage: Larceny of BAH?

115 Larceny – Elements Intent With the intent: –To permanently deprive or defraud another person of the use and benefit of the property OR –To permanently appropriate the property for the use of the accused or any other person other than the owner Having a “good” motive does NOT negate wrongful intent [e.g., joke, teach lesson, demonstrate physical security defects]

116 Wrongful Appropriation - Art. 121(b) A lesser included offense of larceny Wrongful appropriation occurs when wrongful taking of the property of another is done with the intent to TEMPORARILY: –Deprive or defraud another person of the use and benefit of the property OR –Appropriate property for use of accused or any other person other than the owner

117 Criminal Intent: Temporary vs. Permanent Jewelry: Car: Food: Cash: Book: Clothing: Government vehicle Sell, pawn, donate Paint, tag, strip Consume Spend, donate Label it w/ your name Alter it Use for nonofficial purpose and return

118 Criminal Intent: Temporary vs. Permanent Return of property before being caught or suspected generally negates larceny but will still support conviction for wrongful appropriation

119 Example Soldiers A and B live in barracks. They are friends, and A wants to borrow B’s PS2. B has said NO several times, but mainly because they play it together all the time. Lately B has been gone a lot (girlfriend off-post), and A has lost his PS2 buddy. A decides that if B were here he would surely let him borrow the PS2. A knocks on B’s door and B’s roommate lets him in. A takes the PS2 assuring B’s roommate that B is OK with it. –What is the most serious offense committed by A? –What if A kept it for three days? A week? A month? –What if A rented out the PS2 to someone else?

120 Obtaining Services Under False Pretenses Art 134 Theft of services is NOT an Art 121 offense False pretense can be by means of any “act, word, symbol or token” –“Can I borrow your watch” (then keep it for good) Accused must KNOW that what he is saying to get the services is untrue

121 False Official Statement Article 107 –“Official” statement Made in the line of duty Includes statements to investigators Includes statements to civilian police IF related to military or there is a military interest Requires knowledge AND intent to deceive It happens more often than it’s prosecuted

122 False Swearing Article 134 –Official-ness not required (like Art 107) –Intent to deceive not required (like Art 107) –Requires OATH or AFFIRMATION

123 Drugs Distribution and possession require KNOWLEDGE on the part of the subject –Actual or constructive knowledge If you know what you are buying or selling is truly NOT a drug, then there can be no drug offense (attempted or otherwise)

124 Criminal Liability Principals Accessory after the fact Attempts Conspiracy Solicitation

125 Principals - Article 77 A principal is one who: –Commits –Aids –Abets –Counsels –Commands or –Procures commission of a UCMJ offense AND shares in the criminal intent or design

126 Principals - Article 77 Presence at scene of crime: Not necessary Not sufficient All principals are guilty of all crimes committed by other principals which are a natural and probable consequence of the original intended offense –Compare: Felony murder

127 Principals - Article 77 What if perpetrator is acquitted? Withdrawal: A person may withdraw from a common venture or plan and avoid liability for any offences committed after the withdrawal if: –Withdrawal occurs before the offense is committed –Withdrawer effectively negates earlier assistance, command, instigation, etc. AND –Withdrawal is communicated to would-be perps in time for them to abandon plan OR to LEO in time for them to prevent the offense

128 Principals – Max Punishment A principal is subject to SAME max punishment as charged offense –Whether they perpetrated crime or –Aided, abetted, counseled or commanded it –Whether or not they were present –Whether or not the actual perpetrator is convicted

129 Accessory After the Fact - Article 78 Accused has knowledge of offense Receives, comforts, assists the offender To prevent apprehension, trial or punishment –Hide evidence –Loan your car –Let accused hide in your quarters Is mere knowledge of the crime enough?

130 Accessory After the Fact - Article 78 What if perpetrator: –Is not subject to UCMJ? –Is acquitted? Actual knowledge is required, but may be proven circumstantially A specific intent offense: –accused must intend to hinder or prevent apprehension, trial or punishment

131 Accessories After the Fact: Max Punishment Accessories after the fact: –1/2 max of crime charged, except: No more than 10 yrs; No death

132 Misprision of serious offense Art. 134 Knowledge alone is not enough Need a “positive act of concealment” –MORE THAN just failed to notify authorities –Must “do” something to conceal the offense –Give advice, alter log book, etc. Principal need not be subject to the code. Serious Offense = Potential sentence of Death or confinement for over 1 year.

133 Attempts - Article 80 Specific Intent Overt Act –Goes beyond mere preparation –Solicitation of another is NOT enough –MUST be direct movement toward the commission of the offense –But need not be the last link in a chain of acts necessary to complete the offense

134 Attempt Example What if a person intends to rape a girl. He and two companions actually do rape the girl, but it turns out the girl was actually deceased at the time. –Charge RAPE? –Charge Attempted RAPE? –Charge another crime? Charge attempted rape!! (real case) There was specific intent and overt act because they intended to rape and they did have intercourse (overt act).

135 Attempts - Article 80 Voluntary abandonment –Valid defense IF accused: Voluntarily and completely abandon crime ONLY because of her own decision that crime was wrong. –NOT if they: Feared detection? Wanted better odds? Ran into unexpected problems?

136 Attempts - Article 80 Requires “more than mere preparation” –A characteristic of the actus reus used to prove the mens rea circumstantially Punishments –Same as for completed offense except: No death No mandatory minimums Not more than 20 years [except attempted murder]

137 Conspiracy - Article 81 Agreement –Common understanding between two criminals Overt act –The agreement itself is NOT enough –Any overt act, no matter how preliminary or preparatory in nature –May be done by any of the conspirators –Need not be a criminal act Legally buy a firearm or rounds Become a security guard to get access

138 Conspiracy - Article 81 Criminal liability –ALL conspirators are guilty –Of EACH criminal offense –Committed by EACH co-conspirators In furtherance of the conspiracy So long as the conspiracy continues So long as the conspirator remains a party to the conspiracy

139 Conspiracy - Article 81 Termination of the conspiracy –Important because: Long-running conspiracies mean long- running investigations Statute of limitations Statement of co-conspirator admissible so long as made during and in furtherance of conspiracy –Withdrawal can terminate conspiracy; BUT does not exonerate withdrawing conspirator from charge of conspiracy

140 Conspiracy - Article 81 Withdrawal –Must be affirmative act –Wholly inconsistent with adherence to conspiracy –Mere passive noninvolvement in final stages of crime not enough –Examples of effective withdrawal: Going to MP Leaving presence of co-conspirators [maybe]

141 Conspiracy - Article 81 Maximum punishment –Same as for offense conspirators intend to commit, except no death penalty –Pile on maximum punishment for each: Conspiracy Preparatory offenses Ultimate offense

142 Solicitation - Articles 82 & 134 Article 82 confined to four specified offenses: – Sedition(Revolt against civil auth.) –Desertion – Mutiny(Revolt against mil. auth.) –Commit act of misbehavior before enemy Article 134 covers any other UCMJ offense

143 Solicitation - Articles 82 & 134 Act –Ask or advise –Written, oral or by conduct State of mind –With the specific intent that the offense actually be committed Crime of solicitation is complete once solicitation made or announced or advice given –What if solicitation is accepted?

144 Distinctions: Attempt, Conspiracy and Solicitation Nature of the ACT: –Attempt: Overt act amounting to more than mere preparation –Conspiracy: Any overt act (no matter how preliminary or preparatory in nature) is enough so long as it shows the agreement is being executed –Solicitation: Ask or advise - no other act required

145 Example B asks A to help him rob bank  A + B agree to rob  B steals a gun for the robbery  B kills his wife because she knows about the robbery  A tells the police about the job  B robs bank & 1 person dies  Solicitation Not yet… Conspiracy Murder 2 Withdrawal? A = consp + murder 2 B = sol; consp; murder 2; robbery; murder 4

146 Defenses

147

148 Affirmative Defenses An affirmative defense wholly or partially denies criminal responsibility

149 Affirmative Defenses Self-defense Defense of another Intoxication Insanity Parental discipline

150 Self-Defense & Defense of Another 1.LEGITIMATE THREAT (Danger) –Objective standard –Factors = height/weight, strength, was retreat possible/reasonable? 2.FORCE USED (Necessity) –Subjective standard –Factors = age, intelligence, emotional control, experience

151 Potential Defenses Self-Defense: –Victim may respond to attack with the same level of force as his assailant and still claim S/D. –Victim may “offer” more force than permitted to use in an attempt dissuade assailant from continuing the attack and still claim S/D. –Rules on the use of deadly force for S/D are complicated (talk to JAG)

152 Defense of Others Equivalent force: Can use no more force than the one he is defending is entitled to use Accused acts at his peril: If he takes the wrong side in a fight, then he’s not entitled to this defense (can’t defend the aggressor) You can defend anyone (not an aggressor) –Meaning you do not have to have a “duty” to protect the person being defended

153 Intoxication Involuntary intoxication [accused was legally faultless] generally a valid defense Voluntary intoxication generally NOT a valid defense UNLESS accused was so intoxicated that he was unable to form a required mental state of offense –E.G.: Specific intent or knowledge requirement

154 Voluntary Intoxication Murder Voluntary intoxication –Only negates specific intent; therefore, only a defense to premeditated and intentional murder –By operation of law, voluntary intoxication will only reduce premeditated murder to an unpremeditated murder –By operation of law, voluntary intoxication will NOT reduce either premeditated or unpremeditated murder to manslaughter or any other lesser offense

155 Other Defenses - RCM 916 Justification Obedience to orders Accident Entrapment Coercion or duress Inability Ignorance or mistake of fact

156 Accident “A death, injury or other event which occurs as –the unintentional and –unexpected result –of doing a lawful act –in a lawful manner is an accident and is excusable.”

157 Accident Not a defense to involuntary manslaughter: –Airman D decided to look for his brother at a local bar [and] told wife to get his pistol. Wife gave him the pistol, but asked that he reconsider. D then said that he better not go because if someone messes with him he ‘would do this.’ At that time he raised his hand in the air, checked to see if there was a clip in the gun and ‘lowered my hand toward her….’ The gun fired. He estimated he was standing about 5 1/2 feet from her. Powder burns on the skin showed that the pistol could not have been fired more than 9 inches from her head.” –No Accident!

158 Alibi Alibi can create a reasonable doubt that accused not present when crime committed –Defense of choice for the semi-clever guilty –Never survives good investigation

159 Mistake of Fact Mistake of fact: –Accused entered building or structure thinking it was his own –Accused set fire to personal property or uninhabited structure thinking it was his own –Accused took property thinking it was his own Specific Intent Crimes - must be an “honest” mistake of fact General Intent Crimes - must be an “honest” and “reasonable” mistake of fact

160 Factual Impossibility Two men have sex with an apparently unconscious female. –Rape? –What if female is actually dead? Factual Impossibility. CANNOT be rape. BUT, what about attempted rape? –(Thomas)

161 Disclosure RCM 701 requires disclosure of certain defenses before beginning of trial: –Names of witnesses –Documents & physical evidence –Exams or tests conducted; experts –Certain defenses: Alibi Innocent ingestion Mental condition

162 Questions?


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