ACTUS REUS – voluntary act

I. Retributivist: people cannot control thoughts, can control actions

a. voluntary act (2) that causes (3) social harm.
II. Social Harm:
a. Result Crime (harmful result, homicide) vs. Conduct Crime (no harmful result
necessary for guilt, drunk driving)
III. Voluntary Act: willed muscular contraction. MPC 2.01 requires voluntary act for guilt.
Voluntary does not = intentional.
a. Involuntary acts
i. Automatism, unconsciousness, coercion (not an affirmative defense, because D is
saying he did not actually commit the offense). Prosecution must prove every
element of the offense beyond a reasonable doubt, including the defendant’s
voluntary act.
1. An act committed while unconscious is not a voluntary act, there can be no
criminal culpability.
2. When a person acts with no conscious control over his actions. Court must
look at the last culpable conduct, where a defendant acted with a culpable
mens rea in conjunction with the physical act that resulted in social harm.
a. Decina – D knew he was prone to seizures, chose to drive anyway
and killed four people (involuntary act, but voluntary acceptance of
risk)
ii. Subconscious acts (driving home on autopilot, not really remembering the drive) is
NOT involuntary.
IV. Possession: Possession is considered a voluntary act. There are two types of possession:
a. Actual: knowingly in possession, physically having it on your person.
b. Constructive: knowingly in a position or having the right to exercise dominion and
control over it and the ability to guide its destiny.
V. Omissions – A moral duty to act does not necessarily create a concomitant legal duty to
act, except in certain circumstances where there is a legal duty, not a mere moral
obligation. In such circumstances, a person may be held culpable for failure to act. The
omission must be the immediate and direct cause of the social harm, AND the omitter must
have the requisite mens rea of the offense. Generally, there is no duty to act, except when:
a. S – statutory duty (pay taxes, maintain license to drive)
b. C – contractual obligations (babysitter, caretaker)
c. A – assumed care of another (voluntarily) and thereby places victim in worse position
(offer to drive drunk person home from bar, he pukes in your car, you leave him by side
of road and he dies of hypothermia)
d. R – risk, omitter has created the risk (omitter must know that he has created risk)
e. S – status relationship (parent/spouse/employer/doctor)
f. Liability only when omitter is physically capable of performing the act.
VI. Attendant Circumstances: necessary conditions to meet the definition of the crime (“dwelling
house of another at night”)

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MENS REA – morally blameworthy state of mind (sine qua non)
I. Broad definition: generally culpable state of mind (Regina v. Cunningham “maliciously”
poison with gas)
II. Narrow definition: elemental, state of mind as required in definition of the offense
III. MPC 2.02: Always looking at what is in the defendant’s head
a. “A person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or
negligently, as the law may require, with respect to each material element of the crime.”
b. “When the culpability sufficient to establish a material element of an offense is not
prescribed by law, such element is established if a person acts purposely, knowingly, or
recklessly with respect thereto.”
Common Law MPC
Intentional: conscious desire/object to Purposely: conscious object to engage in
cause social harm, or virtually certain that conduct of that nature, or to cause such a
the social harm will occur as a result of result. Aware of the existence of attendant
the conduct. subjective circumstances or believes or hopes that
they exist. subjective
Knowingly: knowledge that attendant Knowingly: aware that his conduct is of
circumstances exist. subjective that nature, or that attendant
circumstances exist. Aware that it is
practically certain that his conduct will
cause such a result. subjective
Willful blindness: ostrich instruction. D Willful Blindness: when knowledge of
must be aware of a high probability that the existence of a particular fact is an
the circumstances exist, and must element of an offense, such knowledge is
deliberately fail to investigate to avoid established if a person is aware of a high
confirmation of the facts. (notice objective probability of its existence, unless he
part). actually believes that it does not exist.
(focus is subjective).
Recklessness: old CL – B<PL. Now, CL Recklessly: consciously disregards a
recklessness is essentially identical to substantial and unjustifiable risk that the
MPC. Conscious disregard of substantial material element exists or will result from
and unjustifiable risk. subjective his conduct, where, given the
circumstances as the actor is aware of
them, the disregard of such risk constitutes
a gross deviation from the standard of
conduct that a law-abiding person would
observe in the actor’s situation. *look at
magnitude of loss and probability of
occurrence in calculating “substantial and
unjustifiable”* subjective
Negligence: burden of refraining from Negligently: should be aware of a
conduct is far less than the probability and substantial and unjustifiable risk that the
magnitude of loss, and actor did not material element exists or will result from
refrain from conduct, then actor was his conduct, where failure to be aware
negligent (B<PL). Gross deviation from constitutes a gross deviation from the

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 the standard of care. objective standard of care that a reasonable person
would observe in the actor’s situation.
(only objective standard – does not
involve a state of awareness). objective
a. Subjective – what was the defendant’s awareness / what did the defendant know?
b. Objective – what would a reasonable person’s awareness have been?
II. Motive v. Intent
a. Motive is the why of the actus reus, not the mens rea
b. Can be relevant in three areas:
i. Specific intent crimes (“with the intent to commit a felony therein”)
ii. Claims of defense (eg self-defense)
iii. During sentencing
III. Transferred Intent
a. Not needed - in most statutes, need not intend harm against the particular person (kill a
human being, not a particular human being)
b. Does not apply:
i. When the social harm is different (property v. personal injury).
ii. When intended harm occurs and additional harm also occurs (jurisdictions split).
iii. When statute prohibits it (killing the President is different than killing someone
else).
iv. In misidentification cases (thought A was B, wanted to kill B but killed A).
IV. General Intent: the mens rea that goes with the actus reus of the crime. Only need to prove
that social harm was performed with a morally blameworthy state of mind. (rape)
(common law)
V. Specific Intent: mens rea above and beyond that required for the actus reus (common
law). (General and specific intent abandoned by MPC – mental state must apply to each
and every element in every crime)
a. Can come from:
i. Attendant circumstances
ii. Future conduct
iii. Motive
VI. Strict Liability
a. Strict Liability Doctrine: Authorizes conviction of a morally innocent person for violation
of a crime, even though the crime, by definition, requires proof of a mens rea
i. A person who is ignorant of, or misunderstands the meaning of, a criminal law
may be punished for violating it, even if the ignorance or mistake was reasonable
b. Strict liability Offenses: crimes that, by definition, do not contain a mens rea
requirement regarding one or more elements of the actus reus. (Statutory rape. Public
welfare.)
i. Courts generally interpret statutes to have implicit mens rea requirement, unless
there is clear evidence of legislative intent to do away with it. (presumption
against SL).
ii. But, a statute can be interpreted as strict liability if:
1. P – Penalty is small (fine, not imprisonment). *Usually dispositive.
2. R – Reasonable standard imposed by the statute
3. I – Intent (legislative intent/policy clearly indicates SL)
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 4. S – Stigma (no moral stigma attached)
5. M – Malum prohibitum crime (wrong because prohibited), not malum in se
(wrong because morally wrong) crime derived from common law.
iii. Public welfare offenses (malum prohibitum) – eg. National Firearms Act
1. Regulate dangerous products
2. Heighten duties of those in certain industries or activities that affect public
health, safety, or welfare
3. Have no mental element, consist only of forbidden acts or omissions
iv. Defenses for strict liability crime:
1. “I didn’t do it” – did not commit the actus reus.
2. “This is not intended to be a SL crime” – given the nature of the crime, or
the consequences, enforcing this as a strict liability crime violates
Constitution or fundamental notions of due process and therefore a mens
rea requirement should be read into it.

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CAUSATION
I. Actual Cause
a. Establishes candidates for responsibility for an event.
b. But for D’s voluntary act, would the social harm have occurred when it did?
c. Substantial Factor Test/ Multiple Sufficient Factors
i. When there is more than one actor and actions would have been independently
sufficient to cause social harm  both actors can be held culpable if either
action would have caused harm to occur
ii. Would the social harm have occurred when and as it did?
iii. Acceleration of social harm is enough to be culpable (Oxendine – two actors
beat child).
II. Proximate Cause
a. Determines the cause of the event or social harm on which we base culpability.
b. Actual AND direct cause is always the proximate cause. Problems when there is
intervening cause. Intervening cause can supersede culpability (break chain of
culpability).
c. Intervening Cause Factors – FICHIASCO (Is intervening cause a superseding factor?)
i. Foreseeability of the intervening cause
1. Dependent/responsive: in response to the situation created by the defendant.
(more likely to be foreseeable)
2. Independent/coincidental: wholly unrelated (lightning/escaped tiger)
ii. Intended Consequences: Defendant’s mens rea/intent. (Got what they wanted)
iii. Human Intervention: free, deliberate, informed HI/Victim’s own act
1. Suicide after rape/ drag racer turns car around to continue race (act of free
will).
iv. Apparent Safety: dangerous forces come to rest.
v. Contribution to the social harm is minimal: de minimis. Intervening cause is
insignificant in relation to the initial cause.
vi. Omissions – An omission will rarely supersede an earlier, operative wrongful
act. (Trend may be moving towards treating omissions as superseding cause,
though -- Oxendine – father whose son had been beaten had duty to take him to
hospital)
d. MPC:

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 i.
III. Concurrence of the Elements
a. Actus reus + mens rea + causation must all concur
b. State v. Rose – driver hit person accidentally (no mens rea then), then dragged person. If
death happened while dragging, and there is culpable mens rea during the dragging, then
D can be culpable for death.

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HOMICIDE
I. Common law: Homicide is the killing of one human being by another human being. At
common law, homicide is divided into categories of murder and manslaughter.
II. **Year and a day rule: old CL, D could not be prosecuted for murder unless victim dies
within a year and a day of the act inflicting injury.
III. *** malice aforethought no longer has any set meaning, it means whatever the legislature
says it means.
a. Can infer malice aforethought from intent to kill, intent to cause GBH/SBI, depraved
heart, intent to commit a felony.
b. Murder is the unlawful killing of a human being by another human being with malice
aforethought, and can be either first or second degree.
i. First degree (specific intent): The intentional killing of a human being by
another human being with malice aforethought that is willful, premeditated,
and deliberate. This means that the actor must have had intent to kill that was
deliberated on for some period of time, even if brief, before the act. There are
certain types of killings that automatically rise to the level of first degree murder,
such as killing by a certain means and felony murder. (**can infer that an actor
intended the natural and probable consequences of his actions** - deadly
weapon shows intent to kill).
1. Killing by certain means: can include killing with poison, by lying in
wait, by use of an incendiary device
2. Felony murder: Killing committed during the commission or attempted
commission of an enumerated felony (BARRK – burglary, arson, rape,
robbery, kidnapping)
a. Limitations:
i. Res Gestae (things done) – limits the application of felony
murder to killings that occur within the course of the felony,
as determined by the temporal and geographic proximity of
the death to the commission of the felony. (temporary safety
can mean end of felony).
ii. Who is the shooter? (Killing that was not committed by the
felon. Agency approach looks at whether the killing was
committed by someone who could be considered an agent of
the felon/co-felon/accomplice – if so, the felon is culpable for
the killing. Proximate cause approach considers the felon
culpable for anything that happens during the commission of
the felony, regardless of who causes it.) “birds of a feather”
3. Six factors court looks to in order to determine whether a killing was
premeditated and deliberate: (quantitative and qualitative considerations)
a. Lack of provocation from the victim;
b. Actions and words of the defendant before and after the killing;
c. Any threats on the part of the defendant before or during the killing;
d. Whether the victim and the defendant had a poor history;
e. Whether there was an additional lethal attack after the victim was
already helpless; and
f. Evidence of brutality.
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 4. Factors analyzing intent-to-kill:
a. Planning activities
b. Motive
c. Facts about the nature of the killing that show attention to detail
ii. Second degree: The intentional killing a human being by another human being
with malice aforethought that does not rise to the level of willful, premeditated,
and deliberate. There are also three types of killings that can be classified as
second degree murder: intent to cause grievous bodily harm or serious bodily
injury; extreme reckless killing or depraved heart murder; and unenumerated
felony murder.
1. Intent to cause GBH/SBI: Can infer implied malice aforethought if
intended harm.
2. Depraved heart/Extreme Reckless (general intent): Killing that occurs
under circumstances evincing an extreme indifference to the sanctity of
human life. Conscious disregard of an extremely substantial and
unjustifiable risk to human life. Malice is implied due to disregard for
human life.
a. Some courts require that a person be aware of a risk of death to
another, others require only that a person be aware of a risk of
SBI to another.
b. Recklessness v. Extreme Recklessness: look at
i. Objective circumstances (given circumstances, how would a
reasonable person act?)
ii. Degree of risk.
iii. Multiple victims?
iv. Base social motive (what is the purpose of the act? Is the
person doing it for immoral reason to begin with?)
3. During the commission of an unenumerated felony.
a. Limitations:
i. Inherently dangerous felony (in the abstract evaluates
statutory language to see if there is any way that the felony
could be committed in non-dangerous way. OR in the
particular evaluates circumstances of the actual felony
committed to see if it was committed in a dangerous way,
used when courts like felony murder.)
ii. Merger (If the underlying felony is not independent of the
murder, then the felony merges with the murder and cannot
serve as the basis for felony murder conviction. Assaultive in
nature, if underlying felony’s purpose is to harm someone,
then all assaults would rise to level of second degree)
iii. Res Gestae
iv. Who is the shooter?
c. Manslaughter: is the unlawful killing of a human being by another human being without
malice aforethought, and can be divided into voluntary and involuntary manslaughter.
i. Voluntary manslaughter: An intentional killing in the sudden heat of passion
as a result of adequate provocation when there has been no reasonable
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 opportunity to cool off, where there is a causal connection between the
provocation and the killing. Can be a defense or a charge.
1. Heat of passion: Can be any emotion. (Partial excuse.)
2. Adequate provocation in the traditional common law fell into four
categories: aggravated assault or battery of self or relative, mutual combat,
illegal arrest, or observing spousal adultery.
a. Modern approach considers adequate provocation to be provocation
that would cause a reasonable person to lose self-control. “Inflame
the passion of a reasonable person to tend to cause him to act for the
moment from passion rather than reason.” **Reasonable person:
gender, age, physical characteristics can be considered** (Partial
justification.)
3. Hot pursuit can be in heat of passion before cooling off.
4. Re-inflamed passion can be adequate (see rapist days after rape, he sneers
at you)
5. Words alone are not adequate provocation. (some jurisdiction – maybe
threats??)
ii. Involuntary manslaughter: Killing as a result of recklessness or negligence.
Not rising to level of extreme indifference as in depraved heart murder.
1. Gross negligence – gross deviation from the standard of care. When actor
should have known and failure to know constitutes a gross deviation from
the standard of care.
2. Some jurisdictions have misdemeanor manslaughter here.
d. Defenses to Manslaughter: Justification or excuse.
IV. MPC: §210
a. Murder under the MPC is not divided into degrees. A killing committed purposely,
knowingly, or recklessly under circumstances evincing extreme indifference to the
sanctity of human life. The commission of enumerated felonies can be seen as evidence
of such recklessness. In the absence of justification, excuse, or mitigating circumstances,
guilty of murder.
b. Manslaughter:
i. EMED: Killing committed under circumstances evincing extreme mental or
emotional disturbance (EMED) for which there is a reasonable explanation or
excuse. Mitigating defense.
1. Based on circumstances as the defendant believed them to be. what’s in the
defendant’s head
2. Distinct from HoP: no immediacy required, no provocateur required, more
subjective, cumulative stressors can be sufficient, words can be sufficient.
ii. Recklessness not rising the level of extreme indifference as in murder.
1. Recklessness v. Extreme Recklessness: look at
a. Objective circumstances (given circumstances, how would a
reasonable person act?)
b. Degree of risk.
c. Multiple victims?
d. Base social motive (what is the purpose of the act? Is the person
doing it for immoral reason to begin with?)
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 c. Criminally Negligent Homicide: Substantial and unjustifiable risk of which actor should
have been aware. (common law would call this involuntary manslaughter)

DEFENSES – burden on D to prove defense, except failure-of-proof defenses.

I. Defenses work to
a. Demonstrate that the Prosecution has failed to meet their burden, OR
b. Establish that no social harm worthy of punishment occurred, OR
c. Find that the defendant or the defendant’s actions are not deserving of punishment.
II. Burden of Proof
a. Burden of Production
i. Prosecution has for every element of crime.
ii. Defense has for every affirmative defense.
1. Failure of proof defenses: D need only raise reasonable doubt.
b. Burden of Persuasion
i. Prosecution has for every element of crime.
ii. Defense has for every affirmative defense.
1. Defense must prove any affirmative defense by a preponderance of the
evidence.
III. Prosecution must prove beyond a reasonable doubt concurrence of four ingredients of
criminal liability:
i. Voluntary act (or omission) by the defendant.
ii. Social harm specified in the definition of the offense.
iii. Defendant’s mens rea.
iv. Actual and proximate causal connection between actus reus and social harm.
IV. Failure of Proof Defenses **Not true defenses**
a. Failure of proof if D can demonstrate at trial that prosecution has failed to prove an
essential element of the offense charged. (prosecution has burden of disproving FoP
claim)
i. Mistake of Fact (negates mens rea)
1. D thought he was shooting at a tree stump, which was actually a human.
ii. Unconsciousness (negates actus reus)
1. Sleepwalking at time of crime.
iii. Alibi (negates actus reus)
b. Mistake of Fact – negates mens rea
i. May exculpate because it undermines the moral basis for punishment (given
MOF, did D possess the requisite mens rea or not?)
ii. Common law
1. First must determine type of crime
a. Specific intent: any mistake of fact negating the mens rea, that goes
to the specific intent portion of the crime, no matter how
unreasonable, will relieve culpability. (larceny)
b. General intent: a mistake of fact negating mens rea must be
reasonable to relieve culpability. (rape)
c. Strict liability: no mens rea, so mistaken belief cannot negate mens
rea and will not ever relieve culpability. (speeding)
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 2. Moral Wrong Doctrine (not used anymore, offends principle of legality):
even if D has reasonable mistake of fact, if he is acting in an immoral
manner, he can still be charged with the crime.
3. Legal Wrong Doctrine: if D has reasonable mistake of fact and believes he
is committing a lesser offense, he can still be convicted of the more serious
offense. (as opposed to MPC – elemental requirement, D punishable for
lesser offense even if actually committed the more serious offense).
iii. MPC (elemental)
1. Mistake of fact is a defense if it negates the mental state required to
establish any element of the offense (either the person had the culpable
state of mind or they did not). If D lacks mens rea, he cannot be culpable,
doesn’t matter if MoF was reasonable or not.
c. Mistake of Law
i. Treated more strictly than mistakes of fact.
ii. Common law
1. Ignorantia legis neminem excusate (ignorance of the law is not an excusing
defense) We still punish, even if D didn’t know of the law.
2. Specific intent: if mistake of law negates mens rea, doesn’t matter if
reasonable or not.
3. General intent: no mistake of law, even reasonable, will exculpate D.
4. Strict liability: mistake of law is irrelevant.
5. In almost every offense, there is no mens rea element that could be negated
by a mistake of law. Exceptions:
a. Reasonable Reliance: defendant relying on
i. statute that is later declared invalid
ii. judicial decision later declared erroneous
iii. official interpretation from one charged with the
interpretation, administration, or enforcement of the law (very
limited. Puts burden on individual to get proper official
interpretation)
b. Fair Notice: nature of the statute prevents a citizen from receiving
fair notice of existence of the law.
i. ie LA statute requiring felons to register if staying in city
(statute triggered by status (just being in LA and being a
felon) as opposed to action)
c. Different law mistake negating mens rea: (Specific intent)
i. When knowledge that conduct constitutes an offense is part of
the requisite mens rea. Involves knowledge of a different law
that affects the situation.
ii. One may know that bigamy is an offense, but knowing
whether their divorce is valid will affect whether they have
knowingly committed bigamy.
iii. D has mechanic fix car, then doesn’t pay bill and takes car
back after shop closes. D believes that car still belongs to her
(actually, law states that mechanic has lien on her car so
technically not her property). D cannot be charged with
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 larceny because, even though she is not mistaken about the
law of larceny, she is mistaken about a different law, which
negates her mens rea as required by larceny.
iii. MPC – allows for mistake of law defense in claims of:
1. Reasonable reliance where you have all three of the following:
a. Official statement of the law
b. In an official order or decision by an authority responsible for the
interpretation, administration, or enforcement of the law, and
c. The reliance is otherwise reasonable.
2. Fair notice where:
a. D believes his conduct is not illegal and the statute defining the
offense was not known to him, and
b. The statute was not published or otherwise made available before the
violation.
3. Different law mistake negates mens rea, or when the offense specifically
requires knowledge of the law.
d. Diminished Capacity: mental disease or defect not rising to the level of insanity. ***Not
actually a true defense, this is actually FAILURE OF PROOF negating mens rea.
i. Functions in two ways:
1. Negates the mens rea of the crime charged: I did not commit the crime
because I did not have the requisite mens rea. OR
2. Reduces the degree of the crime for which the D may be convicted, even if
conduct satisfied all elements of the higher offense. Defendant is partially
responsible; this is a form of lesser legal insanity. Due to mental
abnormality, D is not fully responsible for the crime charged.
a. Sane defendant, but impaired rationality or self-control.
b. Mitigates murder to manslaughter.
ii. Three approaches:
1. Some states limit diminished capacity to specific intent crimes only, other
states limit it to only apply in mitigating murder to manslaughter.
2. MPC: Some states admit evidence of diminished capacity to negate the
mens rea of ANY crime (may still be found guilty of lesser offenses).
3. Some states do not allow defense of diminished capacity at all. The only
defense available for mental defect is insanity.
V. Offense Modification Defenses – Specialized Defenses (pertain to specific crimes)
a. Authorize acquittal of D, even though conduct satisfies the elements of the offense,
when the underlying purpose for prohibiting the conduct is negated by the
conditions that constitute the defense. Negate requirement that actus reus caused
social harm AND negate reason to punish. ***not true defense, undermines
prosecution’s showing***
b. Abandonment defense to conspiracy, defense of impossibility to attempt. Decision to
abandon criminal goal negates culpability and dangerousness and renders punishment
unnecessary.
VI. Justification Defenses – Negates the social harm. **Focus is on the act, not the actor**
a. Conduct that would otherwise be criminal, under the circumstances is socially
acceptable and deserves no criminal liability. Defendant does not deny committing
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 the act, but the result of the conduct is not deemed a social harm given the
circumstances. Even though prosecution has proved every element of the offense.
b. Triggering conditions permit a necessary and proportional response.
c. Accomplice liability – if the primary actor is justified, accomplice is not culpable.
d. Self-Defense: ** Does the person deserve a cape?**
i. CL: A person who is not an aggressor is justified in using force on another if
he reasonably believes the use of such force is necessary to protect himself
from the imminent use of unlawful force by the other person.
ii. MPC:  the use of force upon or toward another person is justifiable when
the actor believes that such force is immediately necessary for the purpose
of protecting himself against the use of unlawful force by such other person
on the present occasion.
iii. Aggressor
1. Person can be the aggressor even if he/she started a non-deadly conflict.
2. First person to use force is not always the aggressor.
3. Whether someone is an aggressor is a question for the jury.
4. Jurisdictions are split on whether words alone are sufficient to make one an
aggressor.
5. Aggressor has no right to claim self-defense. *Dispositive* Must lose
aggressor status.
a. Deadly aggressor must expressly or impliedly communicate retreat.
b. Non-deadly aggressor may communicate retreat (some states require
retreat), or be met with disproportionate force to lose aggressor
status (MPC).
iv. Necessity
1. Imminence
2. Degree of force: One only has right to use the amount of force necessary to
repel an attack (if attacked by 94 y.o. weak man with knife, must
incapacitate without deadly force if possible).
3. Retreat: some states (MPC) require retreat if person knows he can do so in
complete safety.
a. Castle doctrine no need to retreat if attacked in own home (even in
MPC).
v. Proportionality
1. May not use force excessive to the harm threatened. Even if deadly force is
the only way to repel non-deadly attack, cannot use deadly force.
vi. Imminent Unlawful Force
1. Imminent
a. MPC is more broad “immediate”
b. Battered woman’s syndrome
i. Confrontational: D and abuser currently in conflict (regular
self-defense)
ii. Non-confrontational: Lull in the conflict/abuse (MPC
jurisdictions are more likely to allow self-defense here)
iii. Hiring someone to kill abuser (no self-defense b/c not
imminent or immediate).
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 2. Unlawful (any conduct that constitutes tort or crime, even if there is valid
excuse).
a. Arrest by police is lawful, but excessive force is unlawful.
vii. Reasonable Belief
1. Reasonable person. Remember that MPC cares only about what is in D’s
head (reasonable not as much of a requirement).
a. BWS: women who kill men kill for very different reasons usually.
Laws that are designed to reflect the paradigm of men killing men do
not adequately encompass women who kill.
b. Should laws reflect repeated abuse as a form of necessity (repeated
abuse is almost uniquely in the realm of women killing men).
c. If we continue to subjectivize reasonable requirement, does self-
defense move from justification to excuse?
2. Generally, unreasonable belief means self-defense will fail.
a. Unreasonable belief can result in imperfect self-defense in some
states (also if one fails to retreat after being non-deadly aggressor)
 reduce murder to manslaughter.
e. Defense of Others
i. Can be asserted to the same extent that the Other has the right to self-defense.
1. Run through normal self-defense analysis, then plug in Other.
ii. Alter-ego rule: One may only assert defense of others if the Other ACTUALLY
had right to self-defense.
iii. Reasonable appearances rule (majority): One can assert defense of others as long
as it reasonably appeared that the other had a right to self-defense.
f. Defense of Habitation – can overlap with self-defense.
i. Common law: Defense of habitation may be used when V is trying to get into
home, or when V has entered the home, and intends to commit a forcible felony.
ii. MPC: Spells out specific offenses and allows deadly force to prevent an offense
from occurring when there is threat of deadly force.
iii. Broad approach (old common law): Person may use any force apparently
necessary to repel an invasion of home, regardless of whether the intruder
constitutes an actual threat or not.
iv. Middle approach (most jurisdictions): a person may use deadly force to prevent
unauthorized entry into a home if there exist reasonable and factual grounds to
believe that unless so used, a felony would be committed inside.”
1. Requires unlawful entry, force used to prevent entry must be necessary,
reasonable belief as to the impending felony. (if person knows that person
entering is just confused drunk neighbor, may not use force).
v. Narrow approach: Person may use deadly force if the intruder also represents an
apparent threat to the personal safety of the occupant.
1. Unlawful entry about to occur or just occurred, intruder intends to kill or
injure occupant, such force is necessary to prevent it.
g. Defense of Property
i. One CANNOT use deadly force in defense of property.
1. Can use non-deadly force to prevent the unlawful taking of property, but
only force necessary to prevent the taking.
14
 2. Use of force in defense of property is limited to retrieving property
immediately after it is taken.
ii. What if person takes your insulin and you are diabetic?
1. MPC: more broad, so easier to encapsulate this as self-defense (could use
deadly force).
2. CL: More difficult to bring this from DoP into self-defense.
h. Law Enforcement
i. Police officers can commit acts that would otherwise be considered crimes and
be justified.
1. Police may not use deadly force to effect an arrest unless:
a. Officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the officer or
others, AND
b. Such force is necessary to prevent escape.
i. Necessity – negates actus reus (acting in the interest of the general welfare)
i. CL:
1. Necessity requires:
a. The act must have been done to prevent a significant evil
b. There must have been no adequate alternative
c. The harm caused must not have been disproportionate to the harm
avoided.
d. Available only in an emergency. Harm is imminent.
e. Harm measured is the one that is reasonably foreseeable (not the
harm that actually occurs).
f. Predicament cannot be actor’s own fault.
2. Not traditionally available for murder.
3. Traditionally available for natural threats only.
ii. MPC – choice of evils (broader than CL). Affirmative defense.
1. Conduct actor believes to be necessary to avoid harm or evil to self or
others is justifiable if:
a. The harm or evil to be avoided by the conduct is greater than that of
the offense charged.
b. Neither the MPC nor anything in the law provides an exception for
the specific situation involved.
c. A legislative purpose to exclude the justification does not otherwise
plainly appear.
2. When the actor was reckless or negligent in bringing about the situation
requiring the choice of evils, the defense is unavailable in any prosecution
for which recklessness or negligence will suffice.
3. Actor must honestly believe the act is necessary to avoid an evil.
4. Available for murder.
5. Threat can be natural or human.
6. No imminency requirement.
VII. Excuse Defenses **Focus is on the actor, not the act**
a. Although prosecution has proved every element of the crime, the defendant is not
culpable because they lack the moral blameworthiness.
15
b. Rationale:
i. Purpose of the system.
ii. Free choice theory
1. Person may be blamed for conduct only if he/she had the capacity and fair
opportunity to function in a uniquely human way (freely choose whether to
violate the moral/legal norms of society.
2. Free choice exists if, at the time of the conduct, the actor has the substantial
capacity and fair opportunity to understand the facts relating to the conduct;
appreciate that the conduct violates society’s mores; and conform his
conduct to the dictates of the law.
iii. Character theory
1. Person’s moral character is central to the concept of deserved punishment.
2. Punishment should be proportional to wrongdoer’s moral desert, as
measured by the actor’s character.
iv. Causation theory
1. Person should not be blamed for conduct if it was caused by factors outside
person’s control.
c. Accomplice liability – if primary actor is excused, accomplice may still be culpable.
d. Duress – excuse because D is non-deterrable, his choice is heavily circumscribed and he
did not cause the harm (coercer did). ***negates mens rea***
i. Common law
1. Results in acquittal.
2. Only available when D was not at fault in getting into the coercive
situation.
3. Three elements:
a. An immediate threat of death or SBI from a human being to self or
another
b. A well-grounded fear that the threat will be carried out
c. No reasonable opportunity to escape the threatened harm.
4. In general, not available for murder.
5. BUT can use to dispute the underlying felony in a felony murder charge.
ii. MPC: affirmative defense.
1. D was compelled to commit the offense by use or threatened use of
unlawful force upon D or another.
2. Person of reasonable firmness in D’s situation would have been unable to
resist the coercion.
3. Unavailable if D exposed self to threats purposely, knowingly, or
recklessly.
4. No imminence requirement.
5. Available in murder.
e. Intoxication
i. Ask three questions:
1. How did D become intoxicated?
a. Voluntary or involuntary.
2. How does D claim it affected his culpability?
a. Mens rea? Actus reus? Mistake of fact?
16
 3. What kind of offense is charged?
a. General intent, specific intent, strict liability?
ii. Voluntary Intoxication
1. Common law: Voluntary intoxication is available as a defense to negate
mens rea in specific intent crimes, but not general intent crimes.
a. Can lead to bizarre results:
i. If police show up to assault after penetration has occurred, it
is general intent rape, and voluntary intoxication is not
available as a defense.
ii. If police show up before penetration, it is specific intent
attempt to assault, and voluntary intoxication is available.
2. MPC: permits voluntary intoxication as a defense to negate the mens rea in
any crime, but also allows for the voluntary intoxication to serve as
evidence of recklessness.
3. Some states have abolished the defense entirely.
iii. Involuntary intoxication
1. Involuntary intoxication is available as a defense to specific intent and
general intent crimes.
2. Four kinds of involuntary intoxication:
a. Coerced - D was compelled to drink against his/her will (hazing).
b. Pathological – intoxication grossly excessive in degree, given the
amount of the intoxicant, to which the actor does not know he is
unusually susceptible.
c. Innocent mistake – where D did not know, or was tricked with
respect to the character of the substance.
d. Unexpected intoxication from ingesting medically prescribed drugs
– under medical advice and without D knowing its potentially
intoxicating effects.
f. Insanity – affirmative defense
i. Principles of punishment are not served when the truly irresponsible are
punished.
ii. Tests of Insanity:
1. M’Naghten Rule states that a person is insane if, at the time of committing
the act, D was laboring under such a defect of reason, from a disease of the
mind, that he did not know the nature and quality of his own act; or if he
did know the nature and quality of his act, he did not know that what he
was doing was wrong.
a. Focus on cognitive deficiency, no volitional element. Very narrow.
b. This is the dominant test.
c. Focus is on whether the actor knew that what he was doing was
legally wrong, not whether he believed it was not morally wrong.
2. Irresistible Impulse states if the disease of the mind creates delusion as to
the act, or the inability to distinguish right from wrong, OR the inability to
refrain from doing the act, there is no responsibility.
a. Broadens M’Naghten to encompass mental illness which affects
volitional capacity.
17
 b. Goes to the free will aspect of criminal responsibility.
c. Three factors:
i. Acted from an irresistible and uncontrollable impulse
ii. Lost the power to choose between right and wrong and to
avoid the act because his free agency was destroyed
iii. D’s will has been (involuntarily) so completely destroyed that
her actions are beyond her control, so the alleged crime was
solely the product of the mental disease.
d. *** no states use this test anymore
3. Durham test (product of the mental disease): There must be a
relationship between the disease and the criminal act and the relationship
must be such as to justify a reasonable inference that the act would not have
been committed if the person had not been suffering from the disease.
a. Causal link is the key here. This test was too vague, and was finally
abandoned by Brawner (MPC)
4. MPC approach (from Brawner): A person is not responsible for criminal
conduct if, at the times of such conduct, as a result of mental disease or
defect he lacks substantial capacity either to appreciate the criminality
[wrongfulness] of his conduct OR to conform his conduct to the
requirements of the law.
a. Appreciate is more broad than CL knowing
b. Does not require complete impairment; includes volitional and
cognitive components.
c. Moral wrong: A D may establish that he lacked substantial capacity
to appreciate the wrongfulness of his conduct if he can prove that at
the time of his act he substantially misperceived reality and harbored
a delusional belief that under the circumstances as the D honestly but
mistakenly understood them, would not have morally condemned his
actions. (deific decree).
5. Federal Test: Congress statutorily defined insanity in 2006.
a. A person is excused if he proves by clear and convincing evidence
that, at the time of the offense, as the result of a severe mental
disease or defect, the defendant was unable to appreciate the nature
and quality of his acts OR the wrongfulness of his acts.
b. Mental disease or defect does not otherwise constitute a defense.
iii. Insanity v. Diminished Capacity:
Insanity Diminished Capacity
 Used when mental illness or  Used when mental illness or
defect is present. defect is present.
 Affirmative defense where D  Failure of proof defense.
has burden of proof.  Only available in limited
 Available for all crimes. crimes.
 Leads to commitment  Leads to acquittal of the
proceedings if successful. offense charged.

18
 g. Infancy
i. Common law: Child under 7 presumed incapable; child between 7 and 14
rebuttable presumption of incapacity; between 14 and 17 rebuttable presumption
of capacity.
ii. Juvenile Justice System complicates CL. JJS has two discrete stated goals:
rehabilitation and protection of the public.
1. Children are inherently redeemable, while adults are not.
iii. If culpable for offense, court will not come to a finding of criminality, but
delinquency.
iv. Infant will be excused, or incapable of having the requisite mens rea for the
offense.
VIII. Extrinsic/ Non-exculpatory Defenses
a. Defenses that raise public policy issues, unrelated to the culpability or
dangerousness of D, or wrongfulness of conduct. Defenses that serve an important
public policy interest.
b. Social interest served by not punishing outweighs the utilitarian or retributivist reasons
for punishment.
c. Statute of limitations, diplomatic immunity, incompetency to stand trial.
d. Competency to stand trial
i. Different than the insanity defense, competency is evaluated first. The purpose
is to evaluate the defendant’s ability to assist in his own defense AND
understand the process he is involved in and the punishment he might
receive. If unable to do either of these, not competent to stand trial.
ii. Looks at the mental state of D at the time of trial, not at the time of the offense.
iii. If incompetent, D is committed until regains competency.
1. SCOTUS: Person cannot be held longer than reasonable period of time
necessary to determine whether there is a substantial probability that he will
attain capacity in the foreseeable future. Then move to customary civil
proceedings.

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INCHOATE OFFENSES – Solicitation  Conspiracy  Attempt  Target Offense
(All inchoate offenses are SPECIFIC INTENT)
I. Attempt
a. Attempts are felonies if the target offense is a felony, but graded as much less serious
than the target offense.
b. With all inchoate crimes we must balance the rights of the individual with the need for
police to intervene to prevent harm.
i. Do this by looking at D’s demonstrated propensity and willingness to commit
crime.
ii. Can look at this from intent perspective (subjective, what is in D’s head? What is
D intending to do?)
iii. OR from an act perspective (objective, what steps has D already taken?)
c. Mental state, need two types of mens rea:
i. Intent to complete the actus reus, AND
ii. Specific intent to commit the target offense.
iii. * Distinction between the mental state for the target offense and the mental state
for attempting the target offense.
1. Consider second degree murder. Can prove second degree murder by an
intent to kill OR by and intent to cause SBI. But if D does not have intent to
kill, we cannot charge with attempt to kill.
2. Attempted murder requires intent to kill. Intent to injure is not enough.
d. Actus reus of attempt – when has D crossed from preparation to perpetration?
i. Last Act Test: Most stringent
1. This is less about criminal prevention, more about catching criminals who
have the propensity to commit crimes.
2. Look at the physical acts of D.
3. Peaslee – attempted arson, but never actually lit the candle necessary to
start fire.
ii. Probable Desistance Test: At what point has the D done so much that it is
incredibly clear that he is intending to commit the offense; invested so much that it
is highly improbable that he will desist.
1. Point of no return. Looking for physical act that corroborates the mental
state that we are alleging the defendant has, that shows he is totally
committed to his plan.
iii. Dangerous Proximity Test: Looking at the proximity of the defendant to the
completion of the target offense.
1. Looking at physical acts of D.
2. Rizzo – police arrest D for attempted robbery, but target was not even in
building.
iv. Equivocality Test: Do defendant’s acts manifest an intent?
1. On a balance of probabilities, does it look like the actor was about to
commit a crime?
2. Given all the circumstances, all the physical acts, is it clear (unequivocal)
that D intended to commit the target offense?
v. Indispensable Element Test:
1. D has not yet acquired control of some necessary element of the offense, so
20
 we cannot know that D intended to commit the crime. D needs to assemble
all the elements/factors/actions necessary in order to be culpable.
vi. Substantial Step Test: MPC (looking at what is in the actor’s head)
1. Interpret acts as strongly corroborative of criminal purpose.
2. Once we know what you intend to do, any act that corroborates that intent
is enough to show that you were going to do it.
e. Defenses
i. Defense of Impossibility – specialized offense modification defense.
1. Theory: If it would be impossible for the defendant to have succeeded in his
attempt, then there is no reason to punish him. The purpose of punishing an
attempt is to prevent the attempt from taking place, so if there was no way
it actually could have succeeded, then there is no reason to punish.
2. Factual Impossibility: When the defendant’s intended result constitutes a
crime, but the attempt fails because of attendant circumstances beyond D’s
control. (shooting empty bed where intended victim usually sleeps, picking
an empty pocket, firing unloaded gun).
a. The rationale for punishing is that, as far as the actor knows, he has
done everything necessary to commit the crime intended and D
should not escape punishment because of some fortuitous
circumstance that made it impossible for him to succeed. Has the
intent, and took the actions he believed necessary to complete the
act.
b. Thus, factual impossibility is NOT available as a defense to attempt.
D has already demonstrated propensity for criminal activity.
3. Pure Legal Impossibility: when the conduct, even if complete, does not
constitute a crime. The law does not prohibit the intended goal of D’s act.
a. Pure legal impossibility DOES serve as a defense to attempt.
Because we cannot punish solely on the basis of mens rea, and the
conduct is not a crime; we would offend the principle of legality.
4. Hybrid Legal Impossibility: when the actor’s goal is illegal, but
commission of the offense is impossible due to a factual mistake about the
legal status of some attendant circumstances relevant to the conduct.
(bribing a juror who is actually not a juror, receiving unstolen property
thinking it was stolen, shooting a corpse, US v. Thomas – raping a corpse
believing she was alive).
a. There is no actual victim, no actual social harm because of the
factual mistake, so there is no real reason to punish.
b. Common law: hybrid legal impossibility IS available as a defense.
i. BUT, we really could think of hybrid legal impossibility as a
factual impossibility.  Trend towards MPC.
c. MPC: denies hybrid legal impossibility as a defense.
i. BUT, this means that we can punish people for what they
think they are doing, not what they have actually done
(woman convicted of attempt to accept stolen property for
thinking her VCR was stolen, but no proof of this).
ii. Defense of Abandonment
21
 1. Common law does not recognize abandonment as a defense to attempt.
a. Some courts do recognize the defense, but only if D has voluntarily
and completely renounces his criminal purpose.
i. Voluntarily means D must have repented, not abandoned
because of the difficulty of the crime.
ii. Completely means that D must not have abandoned
temporarily, but absolutely.
2. MPC: abandonment IS available as a defense to attempt.
II. Conspiracy
a. A mutual agreement or understanding, express or implied, between two or more
persons to commit a criminal act or to accomplish a legal act by unlawful means.
b. Purpose of punishment: to prevent crime further back in the chain than attempt, and to
protect against the special dangers of group criminality/organized crime.
c. Conspiracy does NOT merge.
i. **Under the MPC, conspiracy does merge with completed target offenses, but not
popular.
d. Procedural:
i. Conspirators may be tried together.
ii. Conspirators in different jurisdictions can all be charged in any of the jurisdictions
for acts in furtherance of the conspiracy. Any act in any place in furtherance of the
conspiracy gives grounds for jurisdiction in that place.
iii. Conspirators may be held culpable for the completed crimes of their co-
conspirators.
e. Mens rea: specific intent, requires two intents.
i. Intent to agree, AND
1. Things affecting mens rea can affect intent to agree (intoxication, could be
too intoxicated to agree)
2. Prosecution and defense will disagree about constitutes intent to agree. Is
“mhmm” enough? Anything less than a firm “no”?
ii. Intent to commit the target offense.
1. Is knowledge that the crime will occur enough? (opioid crisis, pharma
companies/doctors who provide huge quantities of opioids despite
knowledge of opioid crisis).
2. Willful blindness?
3. Courts say knowledge coupled with an interest in the outcome = inferred
intent. We can infer intent from knowledge when:
a. The purveyor of legal goods for illegal use has acquired a stake in
the venture;
b. When no legitimate use for the goods or services exists;
c. When the volume of business with the buyer is grossly
disproportionate to any legitimate demand or when sales for illegal
use amount to a high proportion of the seller’s total business;
d. OR if it is a serious crime for which the D has furnished the
equipment.
iii. Just like attempt, conspiracy to commit murder requires intent to kill, cannot be
implied malice.
22
 iv. Often proceed with conspiracy charge when felony murder fails.
f. Actus reus – is the agreement itself.
i. Common law: no act in furtherance of the conspiracy is necessary for culpability.
1. Must look at the surrounding circumstances to discern whether there was an
agreement (because we will not usually have a contract signed in blood).
a. Coordination can indicate conspiracy (well-coordinated assault at
red-light proved conspiracy of driver who did not participate in
actual assault).
b. Assistance can show intent to further the target offense.
c. BUT accomplice liability and conspiracy are two different things.
ii. Unilateral v. Bilateral agreement
1. Common law: Bilateral. Since the dangers of conspiracy are not present
unless there is agreement on both sides, there is no point in punishing
unless there is a bilateral agreement. Focus is on the act, the dangers of the
act.
2. MPC: Unilateral. The danger of conspiracy is still there, because the actor
has shown a propensity to engage in dangerous conduct and engage with
others in dangerous conduct, and this is enough to punish. Focus is on what
is in the actor’s head.
g. Defenses to Conspiracy
i. Wharton’s Rule: when the offense itself logically requires more than one agent,
you cannot have conspiracy to commit the offense. (dueling, adultery, bigamy,
incest).
1. Does not apply when a third party is involved to bring about the criminal
act.
2. Does apply when the immediate harm extends only to the participants and
no other participants are envisioned.
ii. Frustration of legislative purpose: We will not convict someone of conspiracy if
the conviction would frustrate the legislative purpose to exempt one from
prosecution (minor girl agrees to be transported across state lines. Legislative
purpose is to protect her.)
iii. Withdrawal: requires the defendant to fully repudiate the crime. Cannot withdraw
after conspiracy is complete (act in furtherance).
1. MPC: allows defense of abandonment for conspiracy after it has been
formed only if D withdraws AND thwarts the success of the conspiracy.
III. Solicitation
a. When an actor invites, requests, encourages, or commands another to engage in
criminal conduct.
b. Solicitation MERGES with conspiracy, attempt, or the target offense.
i. If the target of the solicitation is a conspiratorial act (solicitor wants solicitee to
engage in criminal conduct with solicitor), then it is attempted conspiracy and
merges with conspiracy if agreement occurs.
c. Common law requires that solicitor’s intent is that the other person commit the criminal
act, not merely that the other person assist.
d. Theory of punishment:
i. Solicitation is the least formed of the inchoate offense, least dangerous of the
23
 three.
ii. Preventative theory of punishment.
e. Mens rea:
i. Intent to perform the acts constituting the solicitation,
ii. AND specific intent that the other person commit the target offense.
f. Actus reus: asking, enticing, inducing, counselling.
i. Common law: the solicitation must be received in order to constitute the crime of
solicitation.
1. Otherwise, no actual harmful act even occurred (prisoner sends letters to
wife to threaten stepdaughter not to testify against him, but she never
receives the letters).
2. No act further than the RECEIVED solicitation is required.
ii. MPC: does not matter whether solicitation is received.
1. Looking at what is in the actor’s head. Attempted solicitation is solicitation.
g. Innocent instrumentality: if solicitor lies to another, so that the other person does not
think that what he is doing is illegal, solicitor will be charged with the crime itself, not
the solicitation. (stealing money from Dean Smith, but telling solicitee it is actually your
money that Dean Smith has waiting for you in his desk).
i. Solicitor here does not have the intent for solicitee to commit the crime, because
solicitee could not possess the requisite mens rea to commit the crime.
IV. Accomplice Liability
a. This is not a separate charge on its own. Accomplice is charged with the same crime as
the principal actor.
b. A person who has not personally committed the harm may be held accountable for
the conduct of another with whom he has associated himself in two circumstances:
i. If he assists the other person in committing the offense, OR
ii. In many jurisdictions, if he is a co-conspirator.
c. The acts of the primary party become the acts of the accomplice. If the acts do not
constitute a crime, the accomplice cannot be culpable for a crime either.
i. BUT, if primary party is not culpable for the crime because of an excuse defense,
that excuse does not transfer to the accomplice.
d. Four categories of parties to a crime at common law:
i. Principal in the first degree,
1. The one who actually physically commits the crime with the requisite mens
rea, or who commits the crime through an innocent instrumentality.
ii. Principal in the second degree,
1. One who has intentionally assisted in the commission of the crime in his
presence (actual or constructive presence – is the person in a position to
assist).
iii. Accessory before the fact,
1. Not actually or constructively present when the crime occurs (could be
solicitor).
iv. Accessory after the fact.
1. One who, with knowledge of the other’s guilt, assists the person in avoiding
arrest, trial, or conviction.
e. Mere presence is insufficient for accomplice liability. Must have the intent to assist or
24
 engage in the target act.
f. Typically, an accomplice cannot be guilty of a more serious crime than the principal.
i. BUT, an accomplice may have intent to kill or assist in killing while principal is
acting in the heat of passion.
g. Mens rea:
i. Intent to assist, AND
1. Unwitting assistance does not count.
ii. Mental state required for the commission of the offense (intent that the crime
actually occur, intent that the principal successfully commit the offense).
1. Feigning accomplice does not possess mens rea that crime succeed.
2. Some courts requires that people be much more careful about words and
actions for very serious crimes (murder), but in general you must have both
types of intent to be liable as an accomplice.
h. Actus reus:
i. Three types of assistance:
1. By act or physical conduct;
2. By psychosocial influence (incite, solicit, encourage) ;
a. Presence with a hidden intent to assist is not enough if the assistance
is never actually required, but presence with an understanding
(conspiracy) that the accomplice is there to assist IS enough for
psychological encouragement and accomplice liability.
3. By omission if the accomplice has a duty to act.
a. Failing to act to prevent a crime can be enough for accomplice
liability IF a duty is owed by the accomplice to the victim (SCARS).
ii. The conduct must actually assist, even if only a tiny bit. If the assistance is wholly
ineffectual, and there is nothing to show assistance by encouragement, then there
is not accomplice liability.
1. Accomplice opened a window, but principal came in through the door,
AND accomplice did not encourage (b/c that would satisfy second prong of
assistance), then no liability.
2. BUT, no causation requirement. Even if the crime would have occurred
without the assistance of the accomplice, this does not relieve the
accomplice of liability.
i. Foreseeable/Related Crimes:
i. Did Principal commit crime A?
ii. Did Accomplice assist in crime A?
iii. Did Principal commit other crimes?
iv. Were those other crimes reasonably foreseeable consequences of crime A?

25
Rape
I. Old English Common Law Definition
a. Carnal knowledge by a man, of a woman, not one’s wife, forcibly and against her will 
1.     Gender specific
2.     Carnal knowledge included intercourse; not all sexual assault
3.     Marital exemption
4.     Most rape statutes in the U.S. have an element of force
II. Law on rape is completely different across each state
a. What and when constitutes rape?
b. American Statutes use: “forcible”; “against her will” and “without her consent” –
sometimes all.
i. States use “and,” not “or” – this means that forcible is always required.
III. Rape is a general intent crime; (he does not need to know that she is not consenting)
IV. Elements of Rape
a. The Actus Reus
i. Sexual Intercourse
1. Used to be defined narrowly as penetration of actual intercourse. Other
kinds of sexual acts were not considered rape, but might be considered
assault 
2. Now many states have redefined rape as sexual assault and separate it into
degrees based on the level of force used, and /or the type of sexual act 
a. Penetration by a foreign object
b. Forced oral sex
c. Mouth constitutes a sex organ
ii. Force (shown by resistance)
1. How much force? When must force be used? How do we establish force?
2. Traditionally, the amount of force required was the force, or threats to use
force, that would cause serious bodily harm or death to Victim or third
person 
a. Is this appropriate? Consider the concept of the ideal victim?
3. Force is now defined on a continuum, with threats of death or grievous
bodily harm on the one end and the force inherent in any intercourse on the
other end 
a. For all the cases in the middle how do we find force?
b. State v. Alston – abusive relationship with history of Victim
complying with D’s demands for sex by passively submitting.
Victim told D relationship was over. D threatens to fix her face. D
wanted sex. Victim verbally refuses then submits
i. Court holds no evidence of force or threat, so case should
have been dismissed (remember traditionally we need force
and lack of consent) 
4. As a result force becomes resistance – dependable on the Victim’s behavior
a. This puts it on the victim which is a huge issue
5. Force on the other end of the Continuum
26
 a. Court finds that the mere physical force associated with the act is
sufficient to constitute “forcible” or “force used to overcome non-
consent”
b. In other words, the court separates the two components and
essentially removes the force requirement so that non-consent
becomes central 
c. But can we really separate the components here?
d. Is this “No” as sufficient resistance, or increased emphasis on non-
consent
6. Resistance Requirement – what constitutes sufficient resistance?
a. Rusk v. State (1979) – D takes victim’s car keys to induce/compel
her to come upstairs. She at one point asks “if I do what you want,
will you let me go without killing me?” Victim complies with D’s
demands
i. Does this meet resistance requirement?
b. Commonwealth v. Berkowitz (1992) – D and V have encounter in
dorm room, where D never receives an affirmative yes to his
advances. V does not actively resist (or does not have time to
actively resist) but does not welcome the advances either
i. Court finds that there was no evidence of force or forcible
compulsion here
ii. Is this consent with our societal values
iii. Against her will (Without her consent)
1. On whom should the burden be placed?
2. What is the difference between the absence of a refusal, and the presence of
consent?
3. If there is no verbal express “yes” what conduct could constitute consent?
4. What conduct by the male could render the consent invalid or tainted?
b. What about marital immunity rule?
c. US law on rape varies substantially from state to state (very few follow the code)
i. Most states no longer have resistance requirement, yet the force required may still
lead to an unspoken resistance requirement. 
ii. Def’n of force can run from “force or threats of physical force” to “requiring only
the force necessary to commit the physical act” to “force presumed from absence
of freely given permission”
1. Examining the statutes across the country, one can discern that sexual
intercourse, by the D with a V (not his wife) will rape, if it occurs:
a. Forcibly
b. By means of fraud (if she doesn’t know she is consenting to sexual
intercourse.) (or in some states if she thinks D is her husband) 
c. While victim is asleep or unconscious
d. Where victim is not competent to consent
d.   Mens Rea

27
 i. Rape is a general intent crime, therefore knowledge that the woman is not
consenting is unnecessary as long as D has “blameworthy state of mind” regarding
her consent 
ii. Is this consistent with our societal understanding of rape?
iii. How would you change it?
1. Commonwealth v. Lopez (2001) – D and V present highly different
accounts of the event. D seeks instruction on Mistake of Fact. What is
required? Note dissent 
2. Mistake of Fact in Rape – in most jurisdictions, but not all, an honest and
reasonable belief that the woman consented will exculpate the D. 
3. Is this consistent with our requirement of a subjective mens rea. See D.P.P.
v. Morgan
e.     My Thoughts
i. The law could lead by instating an affirmative defense statute
ii. What about someone who is intoxicated and honestly didn’t know that they raped
someone?
1. Mens rea is the sine quo nom of culpability so how would this work?
iii. We don’t have a clear rule on intoxication and mistake of fact

o Originally a capital felony, now a very serious felony

 Most states set max. penalty at life
o Elements of rape
 The Actus Reus:
1. Sexual Intercourse
2. Force
 resistance
3. Against her will (without her consent)
 (1) Sexual Intercourse
1. Used to be defined narrowly as penetration of actual intercourse.  Other kinds of sexual acts
were not considered rape, but might be considered assault. 
2. Now many states have redefined rape as sexual assault and separate it into degrees based on
the level of force used, and/or the type of sexual act.
 (2) FORCE
1. Q:  How much force?  When must the force be used?  How do we establish that force was
used?
2. Traditionally, the amount of force required was the force, or threats to use force, that would
cause serious bodily harm or death to Victim or third person.
 Is this appropriate? Consider whether we have a concept of the ideal Victim.
3. Force is now defined on a continuum, with threats of death or grievous bodily harm on the
one end and the force inherent in any intercourse on the other end.
 Q:  For all those cases in the middle, how do we find force?
4. State v. Alston (1984)   abusive relationship with history of Victim complying with Defendant’s
demands for sex by passively submitting.  Victim told Defendant relationship was over.  Defendant
threatens to “fix her face”. Defendant wanted sex.   Victim verbally refuses then submits.
 Is this forcible rape?
 Court holds no evidence of force or threat of force, so case should have been
dismissed. (remember traditionally we need force and lack of consent) 

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  Ct. agrees that there was no consent, but says to find force, victim must demonstrate
resistance.
 As a result, force becomes resistance – dependent on the Victim’s behavior.
5. Force on the other end of the continuum
 State of NJ in the Interest of MTS: court finds that mere physical force associated with
the act is sufficient to constitute forcible or force used to overcome non-consent.
 In other words, the court separates the two components and essentially removes the
force requirement so that non-consent becomes central.
 BUT, can we really separate the components here?
 Is this "No" as sufficient resistance, or increased emphasis on non-consent?
6. Resistance Requirement – what constitutes sufficient resistance?
 Rusk v. State (1979): defendant takes victim’s car keys to induce/compel her to come
upstairs.  She at one points asks, “If I do what you want, will you let me go without killing me?” 
Victim complies with defendant’s demands.
 Q:  does this meet the resistance requirement?
 Look specifically at the dissents in both levels of this case.
 Commonwealth v. Berkowitz (1992):  D and V have encounter in dorm room, where D
never receives an affirmative yes to his advances.  V does not actively resist (or does not have
time to actively resist) but does not welcome the advances either. 
 Court finds that there was no evidence of force or forcible compulsion here.
 Is this consistent with our societal values?
 (3) CONSENT
1. On whom should the burden be placed?
2. What is the difference between the absence of a refusal, and the presence of consent?
3. If there is no verbal, express “yes”, what conduct could constitute consent?
4. What conduct by the male could render the consent invalid or tainted?
5. What about the marital immunity rule?
6. U.S. law on rape varies substantially from state to state.  (Very few follow the Code.)
 Most states no longer have resistance requirement, yet the force required may still lead
to an unspoken resistance requirement.
 Def’n of force can run from “force or threats of physical force” to “requiring only the
force necessary to commit the physical act” to “force presumed from absence of freely given
permission.”
7. Examining the statutes across the country, one can discern that sexual intercourse, by the D
with a V (not his wife) will be rape, if it occurs:
 1. forcibly.
 2. By means of fraud (if she doesn’t know she is consenting to sexual intercourse.)(or in
some states if she thinks D is her husband).
 3. While Victim is asleep or unconscious.
 4. Where Victim is not competent to consent.
 Mens Rea
1. Rape is a general intent crime; therefore knowledge that the woman is not consenting is
unnecessary as long as D has “blameworthy state of mind” regarding her consent.
2. Is this consistent with our societal understanding of rape?
3. How would you change it?
4. Commonwealth v. Lopez (2001): D and V present highly different accounts of the event.  D
seeks instruction on Mistake of Fact.  What is required?  Note dissent.
5. Mistake of Fact in Rape: In most jurisdictions, but not all, an honest and reasonable belief that
the woman consented will exculpate the D.
6. Is this consistent with our requirement of a subjective mens rea?  See D.P.P. v. Morgan.

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Other crimes
I. Burglary
a. The breaking and entering of the dwelling place of another at night with the intent to
commit a felony therein.
II. Larceny
a. The trespassory taking and carrying away of the property of another with the intent to
permanently deprive thereof.
III. Robbery
a. The taking on money or goods in the possession of another, from his or her person or
immediate presence, by force or intimidation.
IV. Arson
a. The malicious burning or exploding of the dwelling house of another, or the burning of a
building within the curtilage, the immediate surrounding space, of the dwelling of
another.
V. Receipt of Stolen Property
a. Receiving stolen property with the knowledge that it is stolen.
VI. Kidnapping
a. Unlawfully seizing and carrying away a person by force or fraud, or seizing and detaining
a person against his or her will, with an intent to carry that person away.
VII. Rape
a. In most jurisdictions: Forcible sexual relations with a person against that person’s will.

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Duress Common Law
 Human threat
 Threat must be serious bodily harm or death
upon D or another
 This is the D’s will being overpowered
 Threat must be imminent with no reasonable
alternative but to comply with coercive threat
 D must not have gotten himself into the
predicament
 Traditionally not available for murder
Necessity Common Law
 Traditionally not available for murder
 Traditionally available for natural threats only
 Available only in an emergency, where the
harm to be avoided is imminent
Necessity Common Law
 Justification
 Natural threat
 Threat can be less than serious bodily injury
or death
 Requires the D balance the two evils and
choose the lesser one
 Threat must be imminent and there must be
no alternative to the criminal act to avoid the
harm
 D must not have gotten himself into the
predicament
 Traditionally not available for murder
Necessity (choice of evils) MPC
 Threat can be human or natural
 Threat can be against property or person
 D must believe the harm he is avoiding is
greater than the harm he is committing, and
he must in fact choose the lesser of two evils
(subject to legislative/statutory provisions)
 Threat need not be imminent
 D must not have gotten himself into the
predicament, but may still raise the defense if
he recklessly or negligently created the
predicament, for a crime requiring purpose or
knowledge
 Available for murder
Duress MPC
 Human threat
 Threat must be unlawful force upon D or
another (does NOT need to be serious bodily
harm or death)
 D is compared to person of reasonable
firmness in D’s position in regards to the will
being overpowered
 Threat need not be imminent, can be as a
result of prior force
 D must not have gotten himself into the
predicament
 Available for murder
Choice of Evils MPC
 Available for murder
 Threat can be natural OR human
 No imminency requirement
Duress Common Law
 Excuse
 Human threat
 Threat must be SBI or death
 No balancing required, this is the D’s will
being overpowered
 Threat must be imminent with no reasonable
alternative but to comply with the coercive
threat
 D must not have gotten himself into the
predicament
 Traditionally not available for murder
Duress MPC
 Human threat
 Threat must be unlawful force upon D or
another person (does not need to be SBI or
death)
 D is compared with a person of reasonable
firmness in the D’s position regarding
overpowered will
 Threat need not be imminent
 Defendant must not have gotten himself into
the predicament, and may NOT raise the
defense if he purposely, knowingly, or
recklessly created the predicament.
 Available for murder
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