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ASSIGNMENT TWENTY-SIX - Rape & Sexual Assault

It only tales a split second to do something you'll regret for the rest of your  life.

[Disclaimer: I, Bushrod Springwater,  fancy myself as a fairly sensitive guy, but no male can understand what it is like to be a female. Therefore, what I say here about sex crimes (1 - lots of links), (2 - law enforcement discussion of psychology of sex offenders) that may be perpetrated against female victims has to be understood as coming from the perspective of a male. One good thing I can say is that some males are getting the point: Reported rapes seem to be going down. In 2006, for example, there were 80,414 - still an appalling number, and one that the males of this country could lower dramatically if we could get control of ourselves and our relation to females. There may be something to this idea that love of the heart trumps love of the flesh.]

This is the last installment in my note-taking. In today's class, we talked about a number of crimes that are not mentioned in Johnson or Dressler. [ Note: I need to read Assignment 26 in the professor's notes (Guns) that describes several other offenses not mentioned in Johnson or Dresser; this could be useful in the event that I want to be able to spot and discuss the presence of these crimes on the essay portion of the exam. I also need to read Dressler's chapter on rape.]

Today we were introduced to the following crimes not covered by the casebook: sex crimes (rape and sexual assault), assault (1), battery (1), mayhem, kidnapping, false imprisonment (1), (2), enticing a child, arson, forgery (1), criminal mischief (malicious mischief), perjury (1), bribery (official and commercial), counterfeiting, misprison of a felony, compounding a crime (1), obstruction of justice, barratry (1), DWI, money laundering (1), crimes against public order and morals, and stalking (This last one refelects last one reflects the moronic attitude that "You can't make someone love you. All you can do is stalk them until they become afraid and give in.)

At C/L, rape is unlawful sexual intercourse by a man with a woman who is not his wife without her consent by means of force, threat (fear), or fraud. It carried the death penalty at C/L. So, a man (D) couldn't be guilty of raping his own (D's) wife as a principal in the first degree. D could however be guilty as an aider and abettor when D helped some one else rape D's wife.

Consent of the female was a defense. The prosecution had to prove that the rape was without the female's consent. That meant that the proof had to show that the defendant was aware that the female was not consenting. What constitutes consent? Words or actions generally reflect consent or the lack of it. A big issue today is whether the word "no" should be sufficient under all circumstances to indicate a lack of consent. [I can think of some scenarios when the word "no" is accompanied by conduct that is totally inconsistent with the word "no." But the safe thing would be to stop and clarify the inconsistency. Personally, Springwater would walk anytime he heard the word "no." There's lots of fish in the sea.] In the history of rape, lack of legal capacity to consent expanded to encompass the woman who was unconscious or mentally incompetent. What about the use of drugs (1) like rohypnol to break down a victim's ability to resist sexual advances? Here's an even tougher one: If a female consents to intercourse and then changes her mind half-way through the act, is it rape if the male, knowing of the withdrawal of consent, keeps grinding? There's a California case on this as People v. John Z, 29 Cal 4th 756 (Cal. 2003).

Proof of "sexual intercourse" required proof of penetration. That was defined as penetration of the female vulva by the male penis. [If I'm ever a prosecutor, I have to remember that I have to prove penetration to prove rape. I've got to get the C/W to tell the jury that her sexual organ, usually her vagina, was penetrated by the actor's penis. Lots of rookie prosecutors try to sanitize the testimony and fail to prove penetration. Why? They are embarrassed to force their complaining witness to talk about this sort of thing in front of strangers.] 

Rape is a general intent crime. Thus, a reasonable mistake of fact could also be raised as a defense on the issue of the defendant being mistaken as to the female's claimed lack of consent. In other words, the female might subjectively not be consenting, but the male had to be aware of it. But it would seem that what one person might think is a reasonable mistake of fact would not be reasonable to another. Like I just said, we've all heard the statement " 'No' means 'No'!"  But I'm not sure that fits in with what we teach young people by our media. [After all, don't females go for the brash, bold, biker, badboy dudes (I agree with the comparison to that steroid pumped-up male model Fabio that I see on the front page of all these soft-core romance novels that I see women buying at the Bookstop.) who literally and figuratively sweep them off their feet and into the boudoir?] What if a woman feels like she has been raped but never indicated a lack of consent? If she feels raped, has she been raped for purposes of the criminal law?

The force employed in rape could be actual or threatened. Lack of consent may not be too difficult to prove when there is strong evidence that the male used force or threat of force to commit the sexual intercourse. [I wonder what kind of force suffices for a threat. There are a lot of ways to coerce a person without threatening to use any force, whether it is deadly for non-deadly force. What happens if a boss threatens to fire his secretary if she doesn't have sex with him or a a landlord threatens to evict a female tenant unless she has sexual intercourse with him or a teacher promises a good grade in return for sex? None of those would qualify as a sufficient threat of force under the C/L concept of rape.]

Fraud could also be a basis for proving that the intercourse was non-consensual if it was fraud in fact(um). I think "fraud in fact" was when the D fooled or deceived the female about the nature of the act. Most of these books I'm reading say that it would be fraud in factum for a gynecologist to fool a female patient into believing that her sexual organ was being examined with an instrument, when in fact it was the good-doctor's penis that was being inserted into the female organ. But fraud in the inducement was not fraud that made the sexual intercourse non-consensual in the sense of being  C/L rape. Fraud in the inducement seems to be the kind of fraud where the female is deceived, but still knows she is having intercourse, as where the D has used false flattery, a false promise of marriage, or some other false misrepresentation or deception to break down the female's resistance to having sex. It seems like it may even be fraud in the inducement if the D sneaks into the female's bed and poses as another man in order to trick the woman into having sex with him. [Better check Dressler on this; he may disagree.] Apparently, even today, in most states fraud in the inducement (deception) does not constitute a basis for a rape prosecution.

C/L rape was gender specific. By that I mean that it was a one-way crime. A man could be guilty of raping a woman, but if a woman forced a man to have intercourse with her, it wasn't C/L rape. It was legally impossible according to the C/L definition.

The C/L required the female victim to physically resist the would-be rapist when reasonable, unless, as C/L developed, she was unconscious or a minor  or mentally incompetent or unless the rapist used fraud in fact(um), e.g., the doctor telling female patient he was inserting an instrument when he was really inserting his penis. The resistance requirement seems to force the woman to put herself in danger of being physically injured. Some people describe rape as a crime of opportunity that can be discouraged by preventive action. We talked about whether the current equality of males and females should mean that women should be viewed as having just as much power and duty to try to fight off a rapist as a male might. If women and men are to be treated equally, should there be a legal requirement that the rape victim (whether male or female) resist the would-be rapist? I'm not sure about that one, but I do think that it would be more likely that a woman would fight back in cases of "date (or acquaintance) rape" than when she is threatened by a stranger who appears out of the shadows. In the date rape scenario, the guy may think she is consenting if she just kinda pliably lies there without saying anything or otherwise indicating resistance.

On the mistake of fact defense to negate lack of consent, I think there are still a few jurisdictions that may make it unavailable in rape cases. In other words, the focus in those few jurisdictions is on whether the alleged victim did not consent and not on whether the defendant thought she consented.

On the question of corroboration, the early C/L certainly didn't require it. An old fashioned swearing match was fine. In the early 1900's, some states began to require it. The MPC has an absolute rule. Texas has an in between type of statute in Art. 38.07 CCP.

Hint: Things to look for re rape: penetration, spousal exclusion for husbands, D's awareness of lack of consent, reasonable mistake of fact, threat or use of force.

The MPC contains a whole raft of sex crimes that could take a long time to master. Here are a few thoughts on the MPC rape crime. Under Sec. 213.1 MPC the husband could not be guilty of raping his wife as the primary actor. So, it maintains this concept of spousal immunity. But the husband or another woman could be liable as an accomplice to sex crimes in Article 213 under Sec. 213.6  (2) MPC when he/she causes another person not within the spousal exclusion to perform the sexual act. In a way, the spousal exclusion makes sense when I  think that the MPC final draft was in the early 1960's, before there was such an emphasis on women's rights and before there was the current repudiation by women of a wife being under any control of or obedience to the husband. Of course, any forcible sexual attack by the husband on his wife would certainly have been considered as assault in those days under both the MPC and C/L.

The MPC has a number of sexual offenses other than rape in Article 213. The basic tenor of the Article is pro-defendant, but the MPC does expand sex crimes to some extent. For example, all forms of penetration, i.e., oral, vaginal, and anal, are included in the definition of  "sexual intercourse." There are several crimes and several grades of punishment. Rape under 213.1 (1) MPC can be a first or second degree offense depending to on whether the actor inflicts serious bodily harm on anyone or the complaining witness was not a voluntary social companion of the defendant and hadn't previously permitted sexual liberties (see the statute); gross sexual imposition (a new crime that includes threats that are not physical in nature but are nevertheless coercive, e.g., threats of economic harm, such as loss of a job), under (2), is a third degree felony.

Non-consent of the C/W and resistance by the C/W are not elements of the MPC rape offense. The prosecution does not have to prove that the defendant knew that the C/W had not consented . The MPC focuses on the behavior of the male, e.g, use of force or threat of serious physical harm.

It's interesting that the age of consent under the MPC is ten and over, especially when you contrast it with Texas, where it's 17 and over!

The sexual intercourse is MPC rape if the female is unconscious or if her power to appraise or control her conduct has been substantially impaired by the D administering or employing drugs, intoxicants, or other means for the purpose of preventing resistance. It's also rape if the female is coerced by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone. The MPC centers on the amount of force or the severity of the threat in determining the nature of the crime and the punishment. 

If the accused and the alleged victim are "living as man and wife," irrespective of the legal status of the relationship, Sec. 213.(6) MPC says that this would fall within the spousal exclusion. But, if spouses are living apart under a decree of judicial separation, the spousal exclusion does not apply.

The MPC has a corroboration requirement. Sec.213.6 (5) MPC says that no person shall be convicted of any felony under Article 213 upon the uncorroborated testimony of the alleged victim.

The concept of "rape shield" statutes (1) is one of current vintage.  On the issue of credibility (1) of the C/W's claim that she didn't consent, the common practice for many years was to allow the defense lawyer to introduce evidence of the C/W's history of "prior sexual misconduct" to rebut the claim of lack of consent. This might involve proof that the C/W had consensual sex with a variety of partners, on a variety of occasions, and in a variety of forms. The modern approach is to have so-called "rape shield" statutes, as is the case in many jurisdictions such federal court and in Texas cases under  Rule 412 of the Tex. R. Evid., that place severe limitations on the ability of the defense to introduce such evidence of prior sexual misconduct. These rape shield statutes usually have narrow exceptions, such as prior sexual encounters between the C/W and D, that are allowed into evidence on the issue of consent. There is typically an in camera hearing, before the judge and out of the presence of the jury, to determine what prior sexual history of the C/W will be allowed into evidence.  Sec. 213.6 (3) MPC does have a provision  that allows proof of sexually promiscuous conduct as a defense to the offense of corruption of a minor and certain types of sexual assault, provided that the defense proves such by a preponderance of the evidence; however, this does not apply to the offense of rape. [ As a matter of interest I checked the FBI web site and found that there were 90,491 reported rapes last year. I wonder how many went unreported.]

Of even more recent origin is the requirement of sex offender registration. (There's a guy on probation for kiddie porn about half a block from my crib.) The sex offender registration laws are designed to notify the public as to the identity and location of convicted sex offenders. The offender is typically required to register with a law enforcement agency and supply a photograph, address, and current place of employment. In a score of states, this information is put on the Internet. See Smith v. Doe, S. Ct. 1140 (2003) holding that such registration laws can be enforced upon those whose offenses predated the enactment of the registration statute. For the rather complex Texas Sex Offender Registration Program, See Chapter 62, Tex. C.C.C.P. Freak yourself out by checking this nationwide  web site where you put in your address and it shows you a detailed map with the name, address, and photo of the registered sex offenders in your neighborhood. (Aside from the dud down the block, this says there are only seven in my zip code.)

Statutory rape was a statutory outgrowth of the judge-made C/L crime of rape. This statutory law made it unlawful for a man to have sexual intercourse with a female child under the age of ten, irrespective of whether or not the female child consented. The MPC also protected the child under ten from rape. For the crime of sexual assault of a child, Texas uses the age of under seventeen as the cut-off for defining a child. Some jurisdictions use the under eighteen as the cut-off. It is important to notice that lack of consent is not an issue in statutory rape.[ For the exam, I can think of situations involving the use of force or threat of force against a child where there might be both a potential statutory rape and rape crime.] This statutory rape law is based on the policy that a "child" (as defined by the law) is simply not legally capable of consenting to sex. The statute is there to protect children from sexual predators. So, in cases of statutory rape you don't have to have force, threat of force, fraud, or any of the coercive aspects of rape.

In most jurisdictions, the defendant's good faith honest reasonable mistake of fact regarding the girl's (boy or girl child in gender neutral Texas) age is no defense to statutory rape (sexual assault of a child in Texas). That makes it pretty much a strict liability crime as to age. All the defendant really has to intend  to do is have sex with the person; as long as the person turns out to be a child (minor), it doesn't matter what the defendant thought about the person's age or what anyone might have thought. We just look at chronological age of the child and whether the defendant had sex with the child. There are a few states that do allow reasonable mistake of fact re age as a defense to statutory rape.

MPC mistake of age is covered in Sec. 213.6(1). It's not available as a defense when the criminality of the conduct depends on a child being below the age of ten; however, when criminality depends on the child's being below a critical age other than ten, it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed that the child was above the critical age.

A Different Kind of Sex Crime: I recently saw a 1998 video called Crimes of Honor that claims that in parts of the Islamic world women are killed by male relatives because they have dishonored their families by engaging in unacceptable sexual relationships, e.g., sisters or daughters killed because they have lost their virginity in an illicit relationship or, perhaps, even because they have refused an arranged marriage or have abandoned their husband. How does that grab you? 

Well, after fourteen weeks of study, we have met the criminal law, and it is us, i.e., you and me. In conclusion, I'll take a quick gander at a few other crimes in the MPC, e.g., Arson (1) - Article 220 (There were 66,065 cases of arson in the US in 2006).;  Assault - Article 211 (There were 789,793 cases of aggravated assault in the US in 2006.); Burglary - Article 221 (There were 1,990,468 cases of burglary in the US in 2006.); Kidnapping (Bushrod Thought: Does it make sense to you that heavyset perople are harder to kidnap?) and Coercion - Article 212; Robbery - Article 222; Bribery - Article 240. I've noticed that the MPC doesn't have codified laws on terrorism, drug offenses, stalking (1), (2 - 117 pages on stalking and domestic violence), (3), (4), (5 - Cornell), obscenity, gambling, hate & bias crimes, RICO (racketeers or gang activity) (1), environmental crimes (1), cybercrimes, alcoholic beverage regulation, public safety crimes (traffic, DWI, reckless driving etc.), weapons (1 - Texas concealed handgun law that allows private citizens to pack), (2 - Texas handguns in general), (3) among others.     

Enough bilge water. I want to end with a question, not an answer. Before I lower the curtain for good, there's something I've been meaning to ask. May I borrow your notes? BOO YAH!

TO BUSHROD 1

TO HOME PAGE

TOP

Consummatum est. (It is finished.)

ASSIGNMENT TWENTY-FIVE - False Pretenses (vis a vis Larceny By Trick) - Wire & Mail Fraud :

[I have five absences and used up all my sick leave at work. Today, I called in dead.] On this final session using the Johnson casebook, we focused on the statutory offense of false pretenses that was created back in the common law days to fill gaps in the larceny law (1). The minor accident of being totally ignorant about this material won't deter me from offering my views on what I think it means. This is what I got from the session and my reading.

Guns sets out the elements, but basically the crime involves a D who: (1.) obtains title (title must pass) or title and possession  (but not possession alone), (2.) to someone else's property, (3.) by knowingly (recklessness doesn't work under the majority rule) making a false representation (a misrepresentation),  (4.) of a material present or past fact of monetary significance, (5.) which the defendant knows to be false, (6.) with the intent to defraud, i.e., intending to cause the victim to pass title. The professor says this often comes up on exams in the context of trying to determine whether a crime is false pretenses or larceny by trick or embezzlement. From what I read, the general rule for statutory false pretenses required that the proof show that there not only was a false representation, but that D knew that it was false. Apparently there were a few states that had statutes that would allow recklessness as sufficient, but the majority required proof of knowledge. 

Here's a good hypothetical explanation that I ran across:    

    If D1 persuades V to loan D1 V's lawnmower (or bicycle or chainsaw or etc.) and D1 intended at the time to permanently deprive V of the lawnmower, it's C/L larceny.

    If D1 really just wanted to borrow the lawnmower at the time V loaned it to him, but after D1 gets possession of it decides to convert it to D1's use, it can be embezzlement; but since the original taking was not trespassory, it can't be larceny. (If D1 had just gone over to V's house and taken the lawnmower without V's permission and later decided to keep it, you could use the "continuing trespass doctrine" to make the taking a larcenous trespass to possession and, thus, larceny.)

     But if D1 obtained both title and possession of the lawnmower from V, based on D1's fraudulent claim to V that D1 needed to sell the lawnmower for the general purpose of raising money to pay medical bills for the sick, there being no such medical bills and no such sick persons, there was no C/L larceny because V intends to pass title (and possession) to the lawnmower to D1; also, there was no embezzlement because the original possession was based on fraud (misrepresentation) and, therefore, was not consensual. So, to cover this situation, the crime of false pretenses was created. [It looks like strong proof of whether title was passed in hypos is whether V had title and intended to pass title.]

During the common law era, for the statutory crime of false pretenses to occur, the misrepresentation needed to be affirmative in nature. Failure to disclose a fact didn't constitute the statutory offense of false pretenses, unless these was a preexisting fiduciary duty to disclose the fact. Additionally, failure to correct the victim's false impression or misunderstanding was not sufficient to constitute a misrepresentation. Also, the traditional offense of false pretenses required that that the false representation (misrepresentation) had to be of a material present or past fact. False promises to do things in the future did not qualify. For example, if D pays V for a car with counterfeit money, this would be false pretense in the sense that D obtains title and possession to the car based on D's present misrepresentation that the money as real. On the other hand, if D obtained title (or title and possession) to the car from V based on D's promise to pay for the car tomorrow and then doesn't pay tomorrow, there was no false pretenses. As to the requirement that the misrepresentation had to be material, it seems that an oral statement of value of property was held to be mere opinion (puffing) and not a statement of fact.

A couple of other things need to be noted. It doesn't seem necessary for false pretenses that there be proof  that V suffered a pecuniary loss as a result of the misrepresentation.  Also, the false representation does not have to be the sole inducement for V giving up of title to the property to D. If D thinks his representation is false but it is in fact true, there is no false pretenses. ( Is this mistake one of those that would be a mistake of fact that would negate the possibility of fraud?) Also, the law of false pretenses protects the naive and gullible person; even if the V places unreasonable reliance on the material false representation. Finally, since false pretenses required a specific intent to steal, i.e., defraud,  valid mistake of fact or intoxication or claim of right might be potential defenses. 

The victim of false pretense must intend to pass title or title and possession for false pretenses to exist. There may be certain circumstances when possession and not title passes and the crime is larceny rather than false pretenses. I remember the Graham case, in Assignment 22, about the crooked lawyer who told the client he needed $2K to bribe the cops. For example, if the D gets the V to part with the property for a very specified purpose, e.g., to give a bribe to a particular third party or to buy a specific parcel of land, the idea is that title to V's property would pass only if the goal were achieved. The thing is that if the goal is not achieved, title does not pass, and, thus, there is no false pretenses crime. Instead, it may be larceny by trick, like the Graham case, if D only obtains possession based on a misrepresentation. One of the reasons the court in Graham said that the facts showed a larceny by trick may have been that the court felt like the facts wouldn't support a false pretenses conviction for the crooked lawyer. Why? It wouldn't be false pretenses if a false promise to do something in the future won't suffice for false pretenses, and if the Graham court looked at the scenario as not involving a misrepresentation of a present or past fact, i.e., that the police could be bribed,  but rather nothing more than a promise to try to do something in the future, i.e., try to fix the case with the police?

Concerning the California Ashley case, the court expanded the definition of false pretenses and adopted a minority rule that a false promise along with other elements such as reliance is sufficient for a false pretenses conviction. The policy issue seems to be whether we should punish people for making false promises that they don't intend to keep at the time they make them. Even if the answer to the expansion issue is "yes," should we leave the decision to the legislature rather than to the court as in Ashley? The Sec. 31.01 (1) TPC definitions of "deception" seem to take an expansive view of what in the old C/L days was false pretenses. [ Note: I'm not going to take up space reciting all the definitions, but from my reading of (E) in Section 31.01 (1) TPC it appears that making a promise that one doesn't intend to keep and that is likely to affect the judgment of the victim can be deception. However,  that statute also makes it clear that the mere failure to keep a promise is not sufficient evidence alone to prove that the promissor intended to default on the promise. There must be other evidence of that intent. I must look at the other TPC definitions of "deception" also. They are expansive in comparison the old concept of misrepresentation under false pretenses.]  From the reading I have done, it seems like the hottest areas of change concerning  misrepresentation are in the areas of  the legal effect of "false promises" and "misleading omissions."

So here's a somewhat overly simplified system I plan to use to help me sort out larceny by trick, embezzlement, and false pretenses - three major property crimes that can appear on the multi-state bar exam and our own. First, I will ask whether the complainant intended to part with title, title and possession, or possession only of the property in issue. If title or title and possession was meant to be passed to the suspect, it can't be larceny by trick or embezzlement. If anything, it's false pretenses. If possession only was intended to be given to the suspect, it can't be false pretenses, but it may be larceny by trick or embezzlement. In trying to determine if it's larceny by trick or embezzlement, I need to ask whether the suspect came into possession of the property lawfully. If so, it may be embezzlement, but it won't be larceny by trick. If the suspect came into possession of the property unlawfully, then it may be larceny by trick because in larceny by trick the complainant is fooled or conned by a fraudulent misrepresention into giving up only possession of the property.

[Bushrod's Soapbox: "I'm sick and tired of corporate crooks, and I'm not gonna take it anymore!" Speaking of financial crimes, crimes of persuasion, con-games, white-collar crime, (1), (2), (3 - the Cornell white-collar megasite) and fraud , I wondered if a substantial number of the high managerial agents, virtually all of them males, at these huge meltdown corporations, e.g.,  Enron, World Com, Global Crossing, etc., would ever be convicted. It turns out that some were. Bernie Ebbers got 25 years on July 14, '05, for his role in the $11 billion WorldCom accounting fraud. Father and son Rigas got 15 and 20 respectively in the Adelphia Communications looting. Richard Scrushy beat the rap in the HealthSouth book cooking case. What about our local embarrassment - Enron? Messieurs Ken Lay and Jeffrey Skilling were put on trial in early 2006 with two talented defense lawyers, Houston's own Mike Ramsey for Lay and California's Daniel Petrocelli for Skilling. Despite the lawyers dilgigent efforts to obfuscate their guilt in the shelter of the corporate maze, both Skilling and Lay were convicted on many counts of corporate fraud/conspiracy. Lay died before sentencing, but Skilling received more than a score of years in Club Fed. I found the indictment against the President's buddy Lay. Billions and billions of dollars seemingly vanished. How could that much dough be missing without a substantial number of ranking employees being knowing participants in massive fraud? Is the message in some of these long delayed cases - if you're gonna steal, steal big? Of course, the federal Congress responded to these economic catastrophes with gas-bag rhetoric and jaw-boning. After the cows were out of the barn, Congress did pass some band-aid legislation, e.g., Sarbanes-Oxley Act (SOX); that will mean nothing in preventing future corporate corruption without effective enforcement. Congress' answer to white collar property crimes is often to simply create laws, e.g., in 1996 they passed the Economic Espionage Act that purports to protect against misappropriation of trade secrets, and there is also a federal money laundering law. Again, the teeth of the law is in the enforcement. It's a lot easier for a federal prosecutor to convict some street thug of selling crack than to go after major white-collar crooks who steal tens of billions and who still have political power, plus bank accounts bulging with enough filty lucre to pay high priced mouthpieces. Supposedly, the FBI assigns more agents to white collar crime than any other area except national security. If this is so, maybe there's a future for criminal lawyers (prosecutors and defenders), in the areas of securities fraud, RICO, computer and Internet crime (1) (2 - article on unauthorized computer access, identity theft, cyberstalking, Internet fraud, Internet pornography), banking crime, criminal antitrust, bribery, extortion, tax fraud, and misappropriation of intellectual property (copyright violations, trafficking in counterfeit goods, theft of trade secrets, computer intrusion, etc). For a brief dose of some federal financial crimes look at the Secret Service web site.]

What is the definition of "property" for purposes of larceny/theft laws. C/L larceny protected only tangible personal property. This traditionally included crops severed from the land, objects, money, and certain animals. It didn't include real estate, intangibles, or services. So, if I hired a guy to fix my chariot knowing from the get-go that I wasn't going to pay him and I didn't or if I checked into an a roadside inn intending not to pay and skipped out on the bill, there was no larceny of the services provided by the labors of the mechanic or hospitality of the innkeeper. As the world has become more "civilized" or at least more commercial and wealth-oriented, the types of property that are subject to protection by the criminal law have expanded. Obviously, the MPC and TPC have created theft of services statutes that make it a property crime to steal services. We've also seen that there are statutes that penalize unauthorized use of property, e.g., UUMV, without the consent of the owner. Intangible property is typically protected by modern codes such as the TPC and MPC.

At early C/L, all larceny carried the mandatory death penalty (no taxpayer cost for expensive long-term warehousing of prisoners in penitentiaries). Eventually, the English Parliament decided that certain trivial larceny offenses should be exempt from capital punishment. This lower level of larceny was called petit (petty) larceny. The deciding line between the two levels of larceny seems to have been that the value of the property had to be less than 30 pence (the value of one sheep) for it to be petit (petty) larceny.

Sec. 223.0 of the MPC that was finalized in the early 1960s sets up three value levels that are no longer reflective of the value of the dollar. Those value sets are: petty=under $50, misdemeanor = $50 - $500, felony = over $500. [Note: The TPC values in Sec. 31.03 are more realistic. Apparently the TPC value ladder has changed a couple of times to keep up with inflation of the continually valueless dollar. Here's an abbreviated Dollar Value Ladder for Texas Theft Crimes:

C Misdemeanor: Less than $50 or less than $20 by Check; B Misdemeanor: $50 but less than $500 or @$20 by check but less than $500;  A Misdemeanor: $500 but less than$1500; State jail Felony: $150 but less than $20,000 or less than 10 head of cattle horses or exotic livestock or fowl or any part thereof under $20,000 or property is stolen from a person, corpse, or grave or the stolen property is a firearm or the value is less than $1500 and the defendant has two prior theft convictions or the property is an official ballot or carrier envelope for an election or the value is less than $20,000 and the property is insulated or noninsulated wire or cable of at least 50% aluminum, bronze or copper; Third Degree Felony: $20,000 but less than $100,000 or 10 or more head of cattle, horses or exotic livestock or exotic fowl stolen in a single transaction and having an aggregate  value of less than $100,00 or 100 or more head of sheep, swine, or goats stolen in a single transaction and having a value of less than $100,000; Second Degree Felony:$100,000 but less than $200,000; First Degree Felony: $200,000 or more. [People from other states will notice that we have a very strong livestock lobby in the Texas that gets special attention from the legislature. Also, there are many Texas Penal code crimes that have dollar values or dollar losses attached for purposes of determining punishment, e.g., Abuse of Official Capacity (Sec. 39.02); Breach of Computer Security (Sec. 33.02); Counterfeit Trademarks (Sec. 32.23); Criminal Mischief (Sec. 28.03); Execution of a Document by Deception (Sec. 32.46); Graffiti (Sec. 28.08): Insurance Fraud (Sec. 35.02); Medicaid Fraud (Sec. 35A.02); Money Laundering ( Sec. 34.02); Recruitment of an Athlete (Sec. 32.441); Theft of Telecommunication Service (Sec. 33A.04); Theft of Service ( Sec. 31.04); etc]

On the issue of value of property, the commentaries that accompany the MPC say that the MPC permits grading of theft offenses based on the thief's belief, if it's not a reckless belief, concerning the value of the property, rather than the actual value that the C/L and the TPC use in grading the severity of the offense. So, under the MPC, if the D thinks he is stealing a $5 bill and the particular $5 bill is a very rare and highly valuable piece of currency, the grade of theft could be based on the value the thief thought he was getting, i.e., $5. The contrary is also true. The grade of theft may also be raised based on the thief's mistaken belief that the value of the property was greater than it actually was.  Apparently, the MPC would allow a thief to be prosecuted at a high grade of punishment for stealing a painting he thought has great value, even though it was a forged copy with a much lower value.

While service was not considered property subject to common law larceny, both the MPC in Section 223.7 and TPC in Section 31.04  criminalize theft of services.

Finally, with regard to the mail and wire fraud cases that end the casebook, take a look at federal mail fraud and wire fraud, the McNally v. United States, 483 U.S. 350 (1987) and the Congressional reaction to continue the expansion of these catchall federal fraud crimes.

Finally, we are done with theft. I don't know about you, but I have no desire for money. It's stuff that I want. Reading Johnson has been on my list of things I look forward to, right above a case of ringworm. Just kidding. Honestly, now that it's over, I'm glad I read every one of the cases. They flesh the policy issues and arguments out much better than just reading the UCL hornbook. You can catch sight of the players involved, the context in which the criminal law issues arise, and the complexities of the policy considerations. If the UCL hornbook of doctrine is the forest, the stories in the casebook are the trees. Even though the cases are written by appellate judges, they still give us the story of the case, albeit in condensed form. Sometimes it's easier to remember the doctrine if I can use a case as a mnemonic device. I think that reading all these cases in my casebooks has helped me to start reasoning in the analytical way lawyers do as they apply law to solve problems. [I'll be trying my new skill out on the essay portion of the exam.] After all, each case represents a set of facts, a legal problem, and the application of the law to those facts. The more I know about how the law sorts out the problems created by occurrences, the better prepared I'll be to do it when the time comes. Lawyers get paid for solving problems, either before they happen (as with many civil lawyers) or after they happen (as with all criminal lawyers and prosecutors). I'm going to try my best to be ready for that challenge. So, merci to Johnson and Cloud for their $106 plus tax collection of colorful and descriptive legal stories. But with all that black letter common law... Dressler is still my main man!

  

ASSIGNMENT TWENTY-FOUR - Robbery - Extortion - Federal Hobbs Act :

Greetings from the French Penal Colony. With another one of those three-and-a-half hour video reviews of criminal law now under my belt, I'm now ready to teach this course. Anyway, the class today focused on robbery, burglary, and extortion (1 - cop stuff re investigation of burglary and robbery), (2 - robbery and 3 - burglary and 4 - extortion discussed). There were also some federal cases dealing with the Hobbs Act (federal extortion) and mail and wire fraud. We didn't spend any class time on the federal stuff. Even though the casebook has quite a bit of material on the federal property crimes, I get the impression from the professor that these federal property crimes won't be emphasized nearly as much on the exam as the C/L, TPC, and MPC approaches.

ROBBERY (Gone Bad) (Worse): Al Capone said, "You can get much further in life with a kind word and a gun than you can with a kind word alone." The professor underscored that robbery  (There were 422,375 in the US in 2006.) is a crime that involves security of  the person and property. But to me, the violent crime against the person part is most important. I suppose that is why it existed before larceny. I guess you could think of it as a violent property crime. I need to be sure not to say "the house was robbed."  Houses are burglarized, people are robbed.  Robbery is pretty easy to understand. It's basically a combination of larceny and assault. I understand robbery was a common law crime that was defined as:  the felonious and forcible taking of property from the person of another or in his presence, against his will, by violence or putting in fear. Even though it may seem like robbery gives rise to  three convictions, i.e., for robbery, larceny, and assault, such is not the case. The larceny and assault are lesser included offenses of the robbery and merge into it. So, you could only convict the accused of robbery or of larceny and assault. The C/L definition of robbery appears to be that it's larceny from the person or in the person's immediate presence by force or threat of force. I see the elements of C/L robbery this way: (1) a tresspassory taking; (2)  accompanied by asportation; (3) of tangible personal property of value; (4) from the person of another or in his presence; (5) against his will; (6) by use of violent force or by putting him in fear through threat of immediate force; (7) with intent to steal the property (animus furandi). The taking by actual  force or fear from threat of immediate force has to be from the person of the victim or from the area near enough to the victim that the victim could have prevented the taking if it weren't for the use of force or threat of force by the robber.  It's clear that there has to be a taking (completed larceny) for C/L robbery to occur. Otherwise, if the larceny is not completed, the offense would be attempted robbery.  The actual force doesn't have to amount to deadly force or the threat of it.  Fairly mild force will suffice. The actual force needs to be applied to the person and not to the property. Snatching a purse from a shopping cart that V was pushing probably is not enough force to the person to support a robbery charge; tugging over a purse (purse-snatching)might be enough force to the person; grabbing it from off the V's shoulder probably might be enough, but slipping it off might not, see the Sein case. Remember you can have larceny/theft from the person without necessarily having a robbery. A good example would be pickpocketing where V never knew the wallet had been taken. Threat of immediate force (rather than actual use of force)  that creates fear in the robbery victim is the other way you commit robbery.  The threat has to be of immediate injury to the person or property of  the person being robbed. (Modern penal codes include threats to third parties, but C/L robbery didn't.)  When threats of future harm are used  to get the property, it's not robbery, but it may be extortion (blackmail). Also, the force or threat has to be the means of getting the property. An assault by the larcenist in the getaway after larceny was committed isn't going to be C/L robbery, though it may be under the TPC, based upon the meaning of "in the course of committing theft" in Chapter 29 TPC. (This may come up on the exam, either on the essay or the objective portions.)

Robbery is one of those common law specific intent crimes. At C/L, robbery  required a completed larceny as an element. So, a good faith honest claim of right (what seems to be a form of good faith honest, though not necessarily reasonable, mistake of fact as to one's right to have possession of property that he thinks is his) would logically be available to negate the intent to steal and, thus, remove one of the elements of robbery. Some of the stuff I read says that there is no C/L claim of right defense to robbery.  The idea is that it is not good policy to allow violent strong-arm self-help methods to collect debts. Dressler's UCL 4th p. 607 says the generally accepted rule is that claim of right can be a defense to robbery. So, I'll go with that as the general rule. It's logical, particularly when the D uses force to reclaim a specific item of property he truly believes is his, rather than some set-off such as taking some of V's cash for a debt. It looks like the MPC Section 223.1(3) would allow the claim of right defense in a robbery case, under the theory that D could still be convicted of any violent act such as assault or criminal coercion,  just not the property offense (including robbery). The TPC doesn't refer to the claim of right defense re theft or robbery.  Remember, C/L  larceny law indicated that taking property that one actually believes he has a right to take is not an intent to steal. An honest mistake, reasonable or unreasonable, would seem to negate the specific intent to steal.  [ If I talk about claim of right negating the robbery, I need to remember that there is still probably an assault.] Intoxication and mistake of fact may play into the scenario as potential negating factors, just as they can with the specific intent crimes of larceny and burglary.

We talked quite a bit about the TPC robbery chapter and how it doesn't require a completed theft for robbery to occur. It's pretty much based on the TPC definition of "in the course of committing theft" in Sec. 29.01 TPC. Dressler doesn't talk about c/l robbery [Note: I need to keep on the lookout for an  exam situation involving a  theft or attempted theft and an  assault committed by the thief while the thief is fleeing the theft or attempted theft. In Texas, that scenario seems to be robbery.] There's also the question of what constitutes a "deadly weapon" and "serious bodily injury" when you deal with TPC aggravated robbery.  These terms are defined in TPC Sec. 1.07. I'll check out those definitions in case the facts raise them.

BURGLARY (Gone real bad  - rap music): Burglary is a bit like an attempt, in the sense that it is complete with the burglarious entry made with the required specific intent. It doesn't require that the target offense (felony at C/L) be committed. The C/L definition of burglary that restricted it to the dwelling house at nighttime really had aspects of a property crime (breaking and entering the house ) and a crime against the person. (People are typically in their houses at night.)

On the question of burglary, I did some reading about C/L burglary. Here are a few of the interesting tidbits I picked up:

• Common law burglary required breaking and entry. Breaking, by itself,  or entering, by itself,  was not sufficient. The two elements didn't have to occur at the same time, but both had to occur during the nighttime, though not necessarily on the same night. 
  

• Common law burglary had to occur at nighttime, probably because most folks are in their homes at night. However, C/L burglary did not require the occupants of the dwelling to be at home a the time the burglary occurred.
  

• As to what constituted a dwelling at C/L for purposes of burglary, the C/L seems to have recognized that the concept of dwelling included buildings within the curtilage that were used by the inhabitant of the dwelling or members of the household . This apparently included rooms that served as an office within a house.  The curtilage was considered to be the area immediately surrounding the dwelling that could be fenced.
  

• At common law, if two people were co-inhabitants of the same dwelling, neither could burglarize the other because the dwelling house would not meet the requirements of "dwelling of another." The dweller could not burglarize his own house.
  

• Breaking may be "constructive," as when the opening or entry is accomplished by fraud or trickery, e.g., the burglar posing as a telephone repairman (more likely as a chimney sweep in C/L days)  to gain entry.
  

• Further opening a partially open door or window to gain entry to the dwelling is a C/L breaking. Opening an inside door is sufficient for  breaking. Breaking out does not qualify as breaking.
  

• When an instrument is used only to break into the dwelling, the entry of the instrument into the dwelling is not considered to be an "entry." On the other hand, if the instrument is used to fish the desired property out of the dwelling, this is considered to be an "entry."  Intrusion of any part of the body qualifies as an "entry," whether for purposes of breaking or to accomplish the object offense.
  

• Houses that were abandoned were not dwellings. But if the house was occupied it was a dwelling; it didn't matter that the occupants were away on a vacation when the burglary occurred.
  

• At C/L the burglar had to form the specific intent before he entered the dwelling. Under the TPC it is not necessary that the burglar form the intent to commit a felony, theft, or assault before he enters the building.
  

    

There are lots of modern changes that have been made to the original concept of C/L burglary, e,g., nighttime, dwelling house, breaking, etc. Some  of these changes re the MPC and TPC are mentioned in the Guns notes. [There were 2.1 million burglaries reported in the US in 2001, compared to 7 million reported cases of theft.] 

EXTORTION: The offense of extortion (blackmail) was a natural statutory outgrowth or expansion of the judge-made common law offense of robbery. The two crimes differ, but extortion is a bit like robbery in that coercion or threat (intimidation) is used to get property or to try to get property. Extortion and robbery differ in some ways. For example, extortion doesn't require use of immediate force or threat to use force immediately as robbery does. The taking or appropriation  does not have to be from the person of V or in his immediate presence. The extortionate threat can be a threat to do something in the future. [ I'll be thinking extortion if I see an intimidating threat of future violence.]  Some of the threats that may qualify for extortion don't qualify for robbery. For example, the threat to ruin the victim's reputation by revealing true information in the future might suffice as a threat for purposes of an extortion statute, but certainly wouldn't be a sufficient threat for a C/L robbery prosecution.

My study group  talked  about how a person might extort money by a threat to release a man-killing biological toxin, such as anthrax, in the future if blackmail payments weren't made. The TPC consolidates extortion into the general theft statute under the concept of "coercion" as defined in Section 1.07 that makes consent ineffective, but the TPC seems to require that the extortionist actually appropriate the property, otherwise the coercive extortionate threat will be treated as an attempted theft under the TPC. It seems that there are two approaches to extortion; the majority of the states treat extortion as occurring when D makes specified threats for the purpose of getting property. A minority of the states also require that D actually appropriate the the property.  Texas falls in the minority that also requires misappropriation. [This could be worth remembering.]

What kind of threats (intimidation) suffice for extortion? Obviously, it will depend on the particular state's statute. It would seem like threats to inflict bodily injury or damage or destroy property would qualify. What about threats to vilify V or disclose or reveal truthful but damaging information about V to someone else? What's so wrong about buying silence? Does extortion extend to D threatening V to do something D has an otherwise lawful right to do, unless V gives D  property or some other benefit? [Look at TPC Section 1.07(9) as it relates to Section  31.03; also look at MPC Section 223.4 ]. On the subject of extortionate threats, what about a lawyer who threatens a lawsuit unless V pays? I read the case of Harrington, 260 A2d 692, which affirmed the extortion conviction of a very aggressive matrimonial lawyer who threatened to reveal V's adultery and tax evasion, unless V agreed to the divorce and payment of $175,000. I wonder, how far can I properly go in representing my client by threatening certain legal action and consequent revelation of damaging facts unless the other side settles?

What about the benefits that the extortionist seeks?  The TPC in Section 31.03 speaks of "property." The definition of property includes tangible and intangible personal property, documents that represent anything of value, and real property. What if D is seeking from V a kiss or sex or attendance at church or some sort of service? Would any of these be theft of service under Section 31.04 TPC.

[Here's my big question on the issue of extortion: Could the two alleged Washington snipers (Malvo and Muhammad) be properly charged under the federal Hobbs Act for federal extortion that obstructs interstate commerce? They left a letter demanding $10 million near one of the murder sites in Virginia and the police searches for them tied up traffic on the interstate highways. [Both were convicted of murder; Malvo received life, and Muhammad death.] See the recent 5th Circuit case of United States v. McFarland in October of 2002 where a Texas robber was convicted under the Hobbs Act and give a 97 year sentence. See also, United States v. Hickman, 179 F3d 230 (5th Cir. 1999)]

I'm trying to get a jump on getting my summer tan. Time to go put my head in the microwave.  And, hey comrades, never forget that we'll always have the upper hand on the profs if  we can just blankly stare at them with that "Whoa, daddy, let's see you do something to keep me awake or out of that solitaire game" expression on our faces.  

    

ASSIGNMENT TWENTY-THREE - Embezzlement - Tangible Personal Property -  Property of Another :

I'm sitting here at my computer wondering if Elvis would still be alive if he's eaten green vegetables and drunk green tea. Back to reality. We are getting close to the end of the semester. The professor has a page with copies of a couple of previous exam questions. I'm gonna try to work them in a timed exercise this weekend, so I'll have a plan of attack for the essay question.

Anyway, this session dealt with taking property with intent to repay later, receiving and concealing stolen property, the status of property in which the alleged thief has a possessory interest, civil debt vis a vis criminal taking, and embezzlement. The professor showed a few clips from "Something Wild" to demonstrate various property offenses, theft of service, malicious mischief (destruction of property), burglary, theft, armed robbery, and complicity theory. There's also some stuff on the clips re assault, attempted murder, self-defense, defense of a third party, etc. (I've seen this Jonathan Demme movie before, featuring Melanie Griffith at her rawest and best, before she got famous and pouty lips.)

In cases of larceny, on the issue of taking with intent to permanently deprive, the question comes up as to what happens when D takes V's property with intent to pay for it some time shortly after the taking. It looks like this was not C/L larceny if the property taken was offered for sale and what the owner wants is to sell the property for money. So, if I go to the local grocery store and the proprietor is not there and I take a gallon of milk intending to come back later in the day and pay for it, I'm not guilty of larceny. (In this world, I'd better have some mighty strong evidence that I intended to come back and pay for it. Maybe I could show that they know me in the store, that I trade there regularly, and that I leave a signed note saying I took the milk and will be back with the $ later in the day.) I certainly intend to deprive the store owner of his milk, but I don't intend to do it unlawfully in the sense that I intend to compensate him for the value of the milk.  If I have a good faith intent to make prompt payment in the immediate future, I don't intend to steal. The proprietor of the store actually wanted to be deprived of his milk. This gets a lot more dicey if I take some sort of fungible (interchangeable, e.g. cash) property that is not offered for sale but at the time of taking I intend to replace it soon thereafter with other fungible property. For example, suppose I take $5 from the petty cash drawer at work to pay for lunch, intending to replace the $5 when I get paid that afternoon. I intend to quickly replace the cash I took with the equivalent amount of cash, but not the same cash. Obviously, I could put five $1's in the drawer and take out a $5 bill. The only variable is that I am going to replace the $5 a bit later in time after taking it. Of course, the $5 cash I took was not goods held for sale. It looks like there is no clear answer to this one. Some cases hold that this could be larceny, some not. Hmmm. I can see why it could be larceny, because the $5 was not being offered for sale. My employer didn't want to be deprived of the $5. On the other hand, $5 is $5; so, if I intend to return the $5, I certainly don't intend to permanently deprive the owner of the value or use of the $5. It's almost akin to the situation of taking a person's personal property with the intent of using it for a brief period of time and returning it. Taking property where you intend that the owner will get it back isn't C/L larceny.  Another more clear-cut situation occurs when, without the owner's (V) permission,  a person (D) furtively takes a unique item (not fungible property) that is not being offered for sale and leaves compensation for it. Apparently, this would be considered as C/L intent to steal larceny. Again, the owner does not want to part with the unique item. If D takes it, D intends to permanently deprive V of this unique item without his permission, even if I leave compensation, e.g. its value or replacement value.

On this question of intent to permanently deprive, how do you know? In many cases it seems that the trier-of-fact (jury or judge in a bench trial)  will have to determine the mens rea by looking at what the alleged larcenist/thief did and said. It's the loss to the victim that you look at. The thief may intend to use the property, sell it, hide it, destroy it, etc. That's not they key. It's the intent to permanently deprive the owner of the use and benefit of his property that is the focus. [The  FBI crime reports for 2001 says 1.2 million cars were stolen.]

Receiving and concealing stolen property typically is defined as receiving stolen property knowing that it is stolen. The pr