Table of contents
Name of Content
|PART-ONE||Letter of Transmittal||1|
|Background of the report||4|
|PART-THREE||Definition of criminal law||5|
|Goals & purposes of criminal law||6|
|Sources of criminal law||6|
|Law of Bangladesh||7|
|Limitations & Obstacles of criminal Law||21|
Letter of Transmittal
December 31, 2010
Barrister A.M. Masum
School of Business
Ahsanullah University of Science & Technology.
Here is a report on “Criminal Law”, which you asked me to prepare on the December 06, 2010.
To know about the climate change, I have gone to the Internet server, Text books, which I observed as relevant to the topic of the report. The information provided by you in your class lectures was also helpful to us.
In this report, we have tried our best to know about the different causes for Criminal law. Also we have collected information about the criminal law, types of criminal, prevention law & the law for prevent criminals.
Therefore, I hope that this report will fulfill the need to understand the crime definitions, elements, methods; law for punishment, law in different countries & how nations can protect themselves assure you that the report is totally self-explanatory.
I will be available anytime if you face any difficulty to translate any meaning of this report.
Saosan Binte Nasir (10.02.51.053)
I would like to give thanks to those people who helped me to prepare this report and I am very much grateful to them for their cordial assistance, helpful co-operation and essential suggestion. At first I would like to express deep gratitude to my honorable course teacher Barrister A.M. Masum School of Business, Ahsanullah University of Science & Technology, for his sincere guideline and valuable remarks, thoughtful comments and essential suggestion. He inspired us and gave us encouragement to complete this report. I would like to express our gratitude to the all the internet surveys, where I have gone to collect information for preparing our report & also the honorable friend Aminul Hoque. I am really grateful to them all of the persons stated above played a great role by helping us to make this report a successful one. So again, special thanks to all of them & the author of Business Law: CIMA & Handbook of commercial Law& Partnership: Nirmolendu Dhar. And also the author of criminal law, Thomas J. Gardner & terry M. Anderson.
Criminal law, also termed as Penal law, encompasses the rules and statutes dealing with any criminal activity that causes harm to the general public, with penalties. It also covers criminal procedure connected with charging, trying, sentencing and imprisoning defendants convicted of crimes. It regulates how suspects are investigated, charged and tried. Criminal law also includes decisions by appellate courts that define and interpret criminal law and regulate criminal procedure, in the absence of clear legislated rules. In this report shown that goals & purposes of the report, the sources of criminal law, common law, model pental code, punishment, Bangladeshi law, law in different countries, types of crime, general principal in criminal trials, violent crimes etc. a nation always have to know about the criminal law & how can they protect themselves by follow these law. So we all have to know about the criminal law process.
Crime is a part of human life since peoeple lived in groups. Ancient document indicate that conduct we now called murder, theft or roberry wes identified by criminals by thousad years ago, by civilizations.criminal law regulate human regulations & regulate what not to do by nations. In that circumstances what they should do in that area. Criminal courts in heterogeneous societies around the world, including the United States, Canada, Britain, France, Holland, Australia, and Israel, face cultural conflict situations. Cultural conflict situations are situations in which different groups in society have different conduct norms for the same situation. In cultural conflict situations, cultural minorities that act according to their cultural norms, values, and worldviews may be accused of committing crimes because the criminal law reflects the norms, values, and worldviews of the dominant groups.1 Examples of such cases are bigamy and family honor murder. criminal courts have dealt with cultural conflict situations for more than one hundred years2 and the growing academic and public debates on cultural defense,3 no empirical research based on a sample of cases has been conducted on judicial decisions in cultural conflict cases. The current research, therefore, empirically examines judicial decisions in cultural conflict decisions. This Article begins with a review of the cultural defense debate. It continues with a review of what is known about judicial decisions in cultural conflict cases. Following that is a discussion of the various possibilities for addressing cultural conflict cases. The Article then turns to examining the circumstances in which it is predicted that a cultural defense will be accepted. The methodology and the findings are presented, and the Article concludes with a discussion of the implications for future academic and public debates as well as for practitioners’ work.
(THORSTEN SELLIN, CULTURE CONFLICT AND CRIME 63-67 (1938).
Definition of criminal law
Criminal law, also termed as Penal law, encompasses the rules and statutes dealing with any criminal activity that causes harm to the general public, with penalties. It also covers criminal procedure connected with charging, trying, sentencing and imprisoning defendants convicted of crimes. It regulates how suspects are investigated, charged and tried. Criminal law also includes decisions by appellate courts that define and interpret criminal law and regulate criminal procedure, in the absence of clear legislated rules. In order to be found guilty of violating a criminal law, the prosecution must show that the defendant intended to act as he/she did. In other words, there had to be intention (Mens rea). Criminal law is typically enforced by the government. The state, through a prosecutor, initiates the suit. Criminal law encompasses Substantive Criminal law; Criminal Procedure; and the special problems in administration and enforcement of criminal justice.
(Written by Congress and state legislators)
Substantive Criminal law defines the crimes committed against the state and may establish punishment. It defines how the facts in the case will be handled, the classification of the crimes (such as, whether the crime is a felony or a misdemeanor), as well as how the crime should be charged. In essence, it deals with the “substance” of the matter. Criminal statutes determine which courts will hear what cases and who will prosecute those cases.
Criminal Procedure describes the methods through which the criminal laws are enforced. For example: when the accused can be searched; when evidence can be seized; and when eyewitnesses can be investigated. Criminal Procedure deals with a defendant’s individual, constitution rights – including the right to remain silent, the right to a speedy, public trial by a jury, the right to a competent attorney, and the defendant’s right to confront his or her accuser.
Enforcement of criminal laws in the United States has traditionally been a matter handled by the states. Criminal statutes, which vary by jurisdiction, describe the type of conduct that has been deemed a crime, the intent required, and in some instances, the proper punishment. In the application of punishment, there are typically five objectives: retribution; deterrence; prevention/incapacitation; rehabilitation; and restitution. There are limitations on the punishment that may be imposed. The U.S. Constitution’s Eighth Amendment states: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ A number of state constitutions also contain the same, or similar, provisions.
(Written by Congress and state legislators)
Goals & purposes of criminal Law
The U.S. constitution is the supreme law of the United States, its preamble states that the purposes of the united constitution are to establish “justice, insure domestic tranquility, promote the general welfare, & secure the blessings of the liberty to our selves. The U.S. supreme court stated that the “most function of any government to provide for the security of the individual & his property”.
(Lanzetta V. New Jersey, 59 s.et. 618 (1939)
The generally recognized goals & purposes of the criminal justice system are to:
- Discourage & deter people committing crimes,
- Protect society from dangerous & harmful people,
- Punish people who have committed crimes,
- Rehabilitate & reform people who have committed crime.
(Criminal Law: Thomas J. Gardner & Terry M. Anderson; chapter -1)
Sources of Criminal Law
 Common Law – Common law is judge-made law. Even when superceded by statutory law, common law may serve to interpret ambiguous statutory terms.
 Criminal Statutes –
Today, statutory law is the prevailing source of criminal law and essentially has replaced common law. Although most states have abolished common law crimes, a few have enacted “reception” statutes, expressly recognizing common law offenses when statutory law does not provide a punishment for such offense. In effect, such a statute “receives” the common law offenses in place at the time of the statute’s enactment. Generally speaking, statutory law classifies a crime as a felony or a misdemeanor, both of which may be subdivided into degrees. A felony is punishable by death or imprisonment in a state or federal prison. The maximum punishment for a misdemeanor is a monetary fine, incarceration in a local jail, or both. Some jurisdictions also have an additional classification of “violation” or “infraction” for which only a monetary fine is authorized.
 Model Penal Code –
Although the Code – published by the American Law Institute is not the law in any jurisdiction, it stimulated adoption of revised penal codes in at least thirty-seven states. Although some state legislatures have adopted only small portions of the Model Code as their own, other jurisdictions (including New Jersey, New York, Pennsylvania, and Oregon) have enacted many of its provisions. Courts, on their own, sometimes turn to the Model Code and its supporting commentaries for guidance in interpreting non-Code criminal statutes.
(Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc Chapter – 1 . All rights reserved.)
Law of Bangladesh
Law of Bangladesh is primarily in accordance with the English legal system although since 1947, the legal scenario and the laws of Bangladesh have drifted far from the West owing to difference in socio-cultural values and religious guidelines. In November 2007, Bangladesh has successfully separated the Judiciary from the Executive but several black laws still influence the rulers in creating Special Tribunals in using several black laws including the Special Powers Act.
Fundamental Rights In Bangladesh
Bangladesh People(s) has 23 Fundamental Rights. It Approve by The Constitution of Bangladesh, Part- Article 26 to 47A. The Fundamental Rights in Bangladesh under below
- Laws inconsistent with fundamental rights to be void (Article-26)
- Equality before law (Article-27)
- Discrimination on grounds of religion, etc. (Article-28)
- Equality of opportunity in public employment (Article-29)
- Prohibition of foreign titles, etc. (Article-30)
- Right to protection of law (Article-31)
- Protection of right to life and personal liberty (Article-32)
- Safeguards as to arrest and detention (Article-33)
- Prohibition of forced labour (Article-34)
- Protection in respect of trial and punishment (Article-35)
- Freedom of movement (Article-36)
- Freedom of assembly (Article-37)
- Freedom of association (Article-38)
- Freedom of thought and conscience, and of speech (Article-39)
- Freedom of profession or occupation (Article-40)
- Freedom of religion (Article-41)
- Rights of property (Article-42)
- Protection of home and correspondence (Article-43)
- Enforcement of fundamental rights (Article-44)<
- Modification of rights in respect of disciplinary law (Article-45)<
- Power to provide indemnity (Article-46)
- Saving for certain laws (Article-47)
- Inapplicability of certain articles (Article-47A)
The Judiciary of Bangladesh
The Judiciary of Bangladesh consists of a Supreme Court, subordinate courts and tribunals.
The Supreme Court
The Supreme Court of Bangladesh comprises the Appellate Division and the High Court Division. It is the apex Court of the country and other Courts and Tribunals are subordinate to it.
a) The Appellate Division
The Appellate Division shall have Jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division. It has rule making power for regulating the practice and procedure of each division and of any Court subordinate to it. Chancery Research and Consultants Trust (CRC-Trust) maintains a website [Chancery Law Chronicles-First Bangladesh Online Case Law Database] where it has included the judgements of the Appellate Division of the Supreme Court of Bangladesh from 1972 to till date.
b) The High Court Division
The High Court Division, though a Division of the Supreme Court, is for all practical purposes, an independent court with its powers, functions and jurisdictions well defined and determined under the Constitution and different laws. It has both appellate as well as original jurisdiction. It hears appeals from orders, decrees and judgments of subordinate courts and tribunals. It has original jurisdiction to hear Writ Applications under article 102 of the Constitution, which is known as extra ordinary constitutional jurisdiction. It has further original jurisdiction, inter alia, in respect of company and admiralty matters under statutes. The High Court Division, in special circumstances, has also powers and jurisdiction to hear and dispose of cases as the court of first instance under article 101 of the Constitution. The High Court Division shall have Superintendence and control over all Courts and tribunals subordinate to it.
The Subordinate Courts and Tribunals
There are a wide variety of subordinate courts and tribunals. Such courts and tribunals are created by some relevant statutes. All their powers, functions and jurisdictions are well determined by the respective statutes. These are the basic courts in the system of the judiciary of Bangladesh. The major bulk of the cases, both civil and criminal, are tried and heard in such courts and tribunals. Certain tribunals are termed as administrative tribunals, Nari-o-Shishu Nirjato Daman Tribunals, Special Tribunals etc. Such courts and tribunals spread all over the country at district levels. The subordinate courts in Bangladesh can be divided in two broad classes, namely, civil courts and criminal courts.
i) Civil Courts
The civil courts are created under the Civil Courts Act of 1887. The Act provides for five tiers of civil courts in a district, which bottom-up are i) Court of Assistant Judge, ii) Court of Senior Assistant Judge, iii) Court of Joint District Judge, iv) Court of Additional District Judge and v) Court of District Judge. The first three are courts of first instances with powers, functions and jurisdictions in respect of subject matter, territory and pecuniary value determined by or under statutes. The rest two are generally courts of appeal in civil matters. now the civil suits are rapidly disclose in the court
ii) Criminal Courts
- Courts of Sessions
- Courts of Metropolitan Sessions
- Special courts/tribunals (Criminal)
- Courts of Metropolitan Magistrate
- Courts of Magistrate
The academic systems of the country allow two separate systems of qualifying legal degrees in Bangladesh which are college-oriented two year LL.B degrees and the University based four-year LL.B (Hons) degrees which require more extensive academic commitment and the seats at the universities remain competitive. But recent there has been a rise in the trend of obtaining foreign academic LL.B. degrees (especially from UK).
INCHOATE CRIMES, GENERALLY
Overview to Inchoate Conduct
Activity that occurs after the formation of the mens rea but short of attainment of the criminal goal is described as “inchoate” – imperfect or incomplete – conduct. The most common of these offenses are attempt, solicitation, and conspiracy. Inchoate crimes are typically treated as a lesser offense than the substantive crime.
Model Penal Code
[A] Punishment – In a significant departure from common law tradition, the Code provides for punishment of the inchoate offenses at the same level as the substantive crime, with the exception of crimes that carry a maximum penalty of life imprisonment (“felonies of the first degree”). [MPC § 5.05(1)] An attempt, solicitation, or conspiracy to commit one of these crimes constitutes a felony of the second degree. [MPC § 5.05(1)]
[B] Special Mitigation – The Code grants the trial judge authority to dismiss a prosecution of an inchoate offense, or to impose a sentence for a crime of a lower degree than is otherwise allowed, if the defendant’s conduct was so inherently unlikely to result in a crime that neither he nor his conduct represents a danger to society justifying his conviction and punishment at ordinary level. [MPC § 5.05(2)]
(Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. Chapter – 19, all rights reserved.)
A criminal attempt occurs when a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense. Criminal attempts are of two varieties: “complete” (but “imperfect”); and “incomplete.” A complete, but imperfect, attempt occurs when the defendant performs all of the acts that he set out to do, but fails to attain his criminal goal. In contrast, an incomplete attempt occurs when the defendant does some of the acts necessary to achieve the criminal goal, but he quits or is prevented from continuing, e.g., a police officer arrives before completion of the attempt.
[B] “Result” Crimes – When the target crime is a “result” crime, the general rule is that a person is not guilty of an attempt unless his actions in furtherance of the target crime are committed with the specific purpose of causing the unlawful result.
Actus Reus of Criminal Attempts Courts have developed a number of tests to determine the point at which a defendant passes beyond the preparation stage and consummates the criminal attempt.
(1) “Last act” test – an attempt occurs at least by the time of the last act but this testdoes not necessarily require that each and every act be performed on every occasion.
(2) “Physical proximity” test – the defendant’s conduct need not reach the last act but
must be “proximate” to the completed crime.
(3) “Dangerous proximity” test – an attempt occurs when the defendant’s conduct is in
“dangerous proximity to success,” or when an act “is so near to the result that the danger of success is very great.”
(4) “Indispensable element” test – an attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan.
(5) “Probable desistance” test – an attempt occurs when the defendant has reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime.
(6) “Unequivocality” (or res ipsa loquitur) test – an attempt occurs when a person’s conduct, standing alone, unambiguously manifests his criminal intent.
(Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. ch-20, All rights reserved.)
Defense of Impossibility
[A] General Rule – At common law, legal impossibility is a defense; factual impossibility is not. However, today, most jurisdictions no longer recognize legal impossibility as a defense.
[B] Factual Impossibility – “Factual impossibility” exists when a person’s intended result constitutes a crime, but he fails to consummate the offense because of an attendant
circumstance unknown to him or beyond his control. Examples of factual impossibility are a pickpocket putting his hand in the victim’s empty pocket; shooting into an empty bed where the intended victim customarily sleeps; or pulling the trigger of an unloaded gun aimed at a person.
[C] “Inherent” Factual Impossibility – Although largely academic, the doctrine of inherent factual impossibility has been recognized as a statutory defense in at least one state (Minnesota). Where recognized, the defense applies if the method to accomplish the crime was one that a reasonable person would view as inadequate to accomplish the criminal objective.
[D] Pure Legal Impossibility – “Pure legal impossibility” arises when the law does not
Proscribe the result that the defendant seeks to achieve.
[E] Hybrid Legal Impossibility – Hybrid legal impossibility (or “legal impossibility”)
exists if the defendant’s goal is illegal, but commission of the offense is impossible due to a factual mistake (and not simply a misunderstanding of the law) regarding the legal status of an attendant circumstance that constitutes an element of the charged offense, e.g., receiving unstolen property under the belief that such property was stolen, or shooting a corpse believing it is alive. Today, most states have abolished the defense of hybrid legal impossibility on the theory that a defendant’s dangerousness is plainly manifested in such cases.
Many courts do not recognize the defense of abandonment. Where recognized, it applies only if the defendant voluntarily and completely renounces his criminal purpose.
Abandonment is not voluntary if the defendant is motivated by unexpected resistance, the absence of an instrumentality essential to the completion of the crime, or some other circumstance that increases the likelihood of arrest or unsuccessful consummation of the offense, or if the defendant merely postpones the criminal endeavor until a better opportunity presents itself.
[A] Actus Reus – The actus reus of a solicitation takes place when one person invites,
requests, commands, hires, or encourages another to commit a particular offense. For a solicitation to occur, neither the solicitor nor the solicited party needs to perform any act in furtherance of the substantive crime. The solicitation is complete upon communication of the solicitation to another.
[B] Mens Rea – Common law solicitation is a specific-intent crime. A person is not guilty of solicitation unless he intentionally commits the actus reus of the inchoate offense, i.e., he intentionally invites, requests, commands, hires, or encourages another to commit a crime, with the specific intent that the other person consummate the target crime.
[C] Relationship of the Solicitor to the Solicited Party – At common law, no solicitation occurs if the solicitor intends to commit the substantive offense himself, but requests assistance by another.
Model Penal Code
[A] Generally – The Model Penal Code provides that a person is guilty of solicitation to commit a crime if:
(1) His purpose is to promote or facilitate the commission of a substantive offense; and
(2) With such purpose, he commands, encourages or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or would establish the other person’s complicity in its commission or attempted commission. [MPC § 5.02(1)]
Prior to the enactment of the Code, most state penal statutes did not provide for solicitation generally and instead proscribed solicitation of specific offenses. As a result of the Code’s influence, many states today have solicitation statutes that apply to all crimes, or alternatively all felonies. Unlike at common law, under the Code, the relationship of the solicitor to the solicited party need not be that of accomplice to perpetrator.
[B] Renunciation – The Model Code establishes a defense to solicitation of “renunciation of criminal purpose.” A person is not guilty of solicitation if he:
(1) Completely and voluntarily renounces his criminal intent; and
(2) Either persuades the solicited party not to commit the offense or otherwise prevents him from committing the crime.[MPC § 5.02(3)]
Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. chapter 21 All rights reserved. Page – 52
Relationship to Target Offense
[A] General rule
 Common Law and Non-Model Penal Code Statutes – At common law, a conspiracy to commit a felony or a misdemeanor was a misdemeanor. Under modern statutory law, the seriousness of the crime of conspiracy varies. Some states continue to treat all conspiracies, regardless of the seriousness of their objectives, as misdemeanors. More often, however, the sanction for conspiracy corresponds to the contemplated crime so that conspiracy to commit a felony is graded as a felony, and conspiracy to commit a misdemeanor is a misdemeanor. In most states, a conspiracy to commit a felony is punished less severely than the target offense.
 Model Penal Code – As with other inchoate offenses, the Model Penal Code sanctions a conspiracy to commit any crime other than a felony of the first degree at the same level as the target offense. [MPC § 5.05(1)] If a conspiracy has multiple objectives, e.g., to rape and to steal, the conspiracy is graded on the basis of the most serious target offense.
[B] Punishment When the Target Offense is Committed
 Common Law – Unlike the crimes of attempt and solicitation, the offense of
conspiracy does not merge into the attempted or completed offense that was the object of the conspiracy. [Callahan v. United States, 364 U.S. 587, 593–94 (1961)]
 Model Penal Code – The Code merges a conspiracy with the object of the conspiracy or an attempt to commit the target offense, unless the prosecution proves that the conspiracy involved the commission of additional offenses not yet committed or attempted. [MPC§ 1.07(1)(b)]
Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. 62
Definition of Homicide
[A] Common Law and Statutory Homicide – At very early common law, “homicide”
was defined as “the killing of a human being by a human being.” This definition included
suicide. However, modern law defines “homicide” as “the killing of a human being by another human being.” Suicide, therefore, is no longer a form of homicide in most statutes. Homicide is divided into two crimes – murder and manslaughter.
 “Human Being” – The common law and majority approaches define the beginning of life as birth for purposes of interpreting the criminal homicide law. A minority of states now reat a viable – or, at times, even nonviable – fetus as a human being under the homicide statute. Re gding the end of human life, a majority of states, either by statute or judicial decision, are incorporated “brain death” in their definition of “death.”
 “Murder” – The common law definition of “murder” is “the killing of a human being
by another human being with malice aforethought.”
 “Manslaughter” – Manslaughter is “an unlawful killing of a human being by another human being without malice aforethought.”
 “Malice” – As the term has developed a person kills another act with the requisite malice” if he possesses any one of four states of mind:
(1) The intention to kill a human being;
(2) The intention to inflict grievous bodily injury on another;
(3) An extremely reckless disregard for the value of human life; or
(4) The intention to commit a felony during the commission or attempted commission of
which a death results.
[B] Model Penal Code – A person is guilty of criminal homicide under the Model Code if e unjustifiably and inexcusably takes the life of another human being [MPC § 210.0(1)]
purposely, knowingly, recklessly, or negligently. [MPC § 210.1(1)] The Code recognizes
three forms of criminal homicide: murder, manslaughter, and (unlike the common law)
[A] Degrees of Murder – At common law, there were no degrees of murder, and murder as a capital offense. Reform of the common law has resulted in the division of murder into degrees, with only murder in the first degree being a capital offense.
The Model Penal Code rejects the degrees-of-murder approach.
Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.
[B] Intent to Kill
 “Deliberate and Premeditated” – Typically, a murder involving the specific intent to ill is first-degree murder in jurisdictions that grade the offense by degrees if the homicide as also “deliberate” and “premeditated.”
 “Willful, deliberate, and premeditated” – Nearly all states that grade murder by degrees provide that a “willful, deliberate, premeditated” killing is murder in the first degree.
 “Intent to Inflict Grievous Bodily Injury” – Malice aforethought is implied if a
Person intends to cause grievous bodily injury to another, but death results. In states that rate murder by degree, this form of malice nearly always constitutes second-degree murder.
 Extreme Recklessness (“Depraved Heart” Murder) – Malice aforethought is
implied if a person’s conduct manifests an extreme indifference to the value of human life. In tates that separate murder into degrees, this type of murder almost always constitutes second-degree murder.
[C] Model Penal Code – A homicide is murder if the defendant intentionally takes a life,
Or if he acts with extreme recklessness (i.e., depraved heart murder).
Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. 67
[A] Common law – Generally speaking, sexual intercourse by a male with a female not is wife, constitutes rape if it is committed:
(2) By means of deception;
(3) While the female is asleep or unconscious; or
(4) Under circumstances in which the female is not competent to give consent (e.g., she
is drugged, mentally disabled, or underage).
Rape is a general-intent offense. As such, a defendant is guilty of rape if he possessed a orally blameworthy state of mind regarding the female’s lack of consent.
[B] Traditional Statutory Law – Traditional rape statutes define the offense as sexual
intercourse achieved “forcibly,” “against the will” of the female, or “without her consent.” like the common law, such statutes are gender-specific, i.e., only males are legally capable f perpetrating the offense, and only females can legally be victims of the crime.
[C] Modern Statutory Law – Many states now extend the law to specified forms of nonforcible, but nonconsensual, sexual intercourse, e.g., sexual intercourse by a male with an unconscious or drugged female. Increasingly, rape is now defined in gender-neutral terms regarding both the perpetrator and the victim. In the most reformed statutes, the offense has-been broadened to include all forms of sexual penetration; the name of the crime has been changed (e.g., “criminal sexual conduct” or “sexual assault”) and the offense is divided into degrees.
[D] Model Penal Code – A male is guilty of rape if, acting purposely, knowingly, or
recklessly regarding each of the material elements of the offense, he has sexualintercoursewith a female under any of the following circumstances:
(1) The female is less than 10 years of age;
(2) The female is unconscious;
(3) He compels the female to submit by force or by threatening her or another person
with imminent death, grievous bodily harm, extreme pain or kidnapping; or
(4) He administers or employs drugs or intoxicants in a manner that substantially
impairs the female’s ability to appraise or control her conduct. [MPC § 213.1(1)]
“Forcible” The traditional common law rule requires proof that both the female did not consent to the intercourse and that the sexual act was “by force” or “against her will” (“resistance” requirement). Generally speaking, nonconsensual intercourse is “forcible” if the male uses or threatens to use force likely to cause serious bodily harm to the female or, possibly, a third person. Intercourse secured by a non-physical threat does not constitute forcible rape at common law.
A minority of jurisdictions by statute or common law interpretation have abolished the
Resistance requirement. Where state have retained the resistance requirement, the trend is to reduce the significance of the rule by lowering the barrier, typically requiring only that the alleged victim asserted a degree of resistance that was reasonable under the circumstances or that was sufficient to indicate that the sexual intercourse was without consent. An extreme minority approach, applied at least in New Jersey, is that a male can be convicted for forcible rape based solely on the lack of permission for the sexual intercourse.[State in the Interest of M.T.S., 609 A.2d 1266 (1992)]
The Model Penal Code defines rape solely in terms of the male’s acts of aggression and does not require proof of resistance by the victim.
Marital Immunity Rule
At common law, a husband could not be guilty of raping his wife. The majority of states retain a partial exemption under which immunity does not apply if the parties are legally separated or are living apart at the time of the rape. minority of states maintain a total exemption for marital rape, while at least twelve states have abolished the rule.
The Model Penal Code recognizes a partial marital exemption that bars a rape prosecution gainst a spouse or persons “living as man and wife,” although they are not formally married. More stringent than the majority exemption, the only exception to the marital immunity rule is for spouses living apart under a formal decree of separation. MPC § 13.6(2)]
Evidentiary Issues at Rape Trials
[A] Corroboration Rule – At common law, the testimony of the alleged rape victim did
not need to be corroborated in order to convict for rape. However, a minority of states, by
statute or case law, have instituted a corroboration requirement. He Model Penal Code imposes a corroboration requirement. [MPC § 213.6(5)]
[B] Rape-Shield Statutes – If the defendant contends that the female consented to sexual intercourse with him on the occasion of the alleged rape, evidence of prior consensual sexual acts between the accused and the victim is admissible. However, today, most states bar voidance of the alleged victim’s prior consensual sexual activity with persons other than he accused and her reputation for lack of chastity under the so-called “rape-shield” laws.
Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.Page 69
The Model Penal Code is silent regarding the admissibility of evidence of the alleged victim’s sexual history or reputation for chastity.
[C] Rape Trauma Syndrome – Rape Trauma Syndrome (RTS) is a set of acute and long-term symptoms resulting from a rape or attempted rape. In the acute phase, a rape victim is as apt to appear calm and subdued immediately after an attack as she is to manifest fear, anger, or anxiety. Many woman in the acute phase also experience physical symptoms, such as tension headaches, fatigue, and disturbed sleep patterns. In the long-term phase, many rape victims develop phobias related to the circumstances of the rape.
There is a split of authority regarding the scientific reliability and, therefore, admissibility of RTS evidence. Jurisdictions that permit RTS expert testimony often admit it only for limited purposes, e.g., to explain the fact that the alleged victim appeared calm immediately after the rape if such conduct would likely be viewed by jurors as inconsistent with a claim of rape. Generally, however, RTS may not be introduced as proof of the commission of the rape itself. The Model Penal Code is silent regarding the admissibility of evidence of RTS.
Other Sex Crimes
[A] Statutory Rape – Today, “statutory rape” remains an offense in most states. Many
states apply a two-level approach to this offense: sexual intercourse with a very young girl (e.g., twelve years of age or younger) remains punishable at the level of forcible rape;
intercourse with an older girl (especially if the male is older than the female by a specified number of years) is a felony of a lesser degree.The Model Penal Code does not recognize any strict liability crimes, and thus does not recognize statutory rape, although it does punish sexual intercourse by a man with a female less than 10 years of age if he knew or should have known the female’s age.
[B] Gross Sexual Imposition – Unlike the common law, the Model Penal Code does not provide for rape on the basis of fraud. However, such conduct does constitute the offense of gross sexual imposition. Subject to the marital immunity exemption, a male is guilty of gross sexual imposition if he has sexual intercourse with a female in any one of three circumstances:
(1) The female submits as the result of a “threat that would prevent resistance by a woman of ordinary resolution,” e.g., if the woman is threatened by a supervisor with loss of employment. [MPC § 213.1(2)(a)]
(2) A male has sexual relations with a female with knowledge that, as the result of mental illness or defect, she is unable to appraise the nature of his conduct. [MPC § 213.1(2) (b)]
(3) A male knows that the female is unaware that a sexual act is being committed upon her or that she submits because she mistakenly believes that he is her husband. [MPC §
Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved Page 70.
[A] General Rule – Common law larceny is the trespassory taking (caption) and carrying away (asportation) of the personal property of another with the intent to permanently deprive the possessor of the property. Larceny is a specific-intent crime.
Real property is not the subject of larceny law. Moreover, only tangible forms of personal property are encompassed in the offense.
Grand and petty larceny were felonies at common law, with grand larceny being punishable by death. Today, grand larceny is a felony and petty larceny is a misdemeanor.
[B] Trespass – A “trespass” is the dispossession of another’s property without his consent, or in the absence of justification for such nonconsensual dispossession. Dispossession by fraud also constitutes a trespassory taking.
[C] “Of Another”
 Common law – Because larceny involves the trespassory taking of possession of
another person’s property, a person may be convicted of larceny of property he owns, e.g., if a landlord, who leases out furnished apartments, enters a tenant’s apartment and takes and carries away the furniture in violation of the lease agreement, he has taken the personal property “of another” for purposes of larceny law.
 Model Penal Code – The Code defines “property of another” broadly to include
“Property in which any person other than the actor has an interest.” [MPC § 223.0(7)] This definition includes a possessors or ownership interest.
[D] “Custody” versus “Possession” – Larceny involves the trespassory taking of personal property from the possession of another. Ownership is not the key. A person has possession of property when he has sufficient control over it to use it in a reasonably unrestricted manner. Possession can be actual or constructive. It is actual if the person is in physical control of it; it is constructive if he is not in physical control of it but no one else has actual possession of it, either because the property was lost or mislaid or because another person has mere “custody” of it. All non-abandoned property is in the actual or constructive possession of some party at all times. A person has mere custody of property if he has physical control over it, but his right to use it is substantially restricted by the person in constructive possession of the property. A person in physical control of property has mere custody of the property in any of the following situations:
(1) He has temporary and extremely limited authorization to use the property.
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(2) He received the property from his employer for use in the employment relation.
However, an employee who obtains property from a third person for delivery to the
employer takes lawful possession upon delivery, and thus cannot be convicted of larceny
of the property if he carries it away.
(3) He is a bailee of goods enclosed in a container. When a bailee is entrusted with container for delivery in unopened condition, he receives possession of the container but mere custody of its contents. When the bailee wrongfully opens the container and removes the contents, i.e., when he “breaks bulk,” a trespassory taking of possession of the contents results.
(4) He obtained the property by fraud. When one receives property from another
based on a false promise to return it, he receives only custody of the property, and is guilty of larceny if he appropriates it. On the other hand, if one has an honest intent when
he receives the property (and, thus, no fraud is involved), he receives possession of the
property, and any subsequent misappropriation constitutes embezzlement or no offense.
[E] Carrying Away (Asportation)
 Common law – A person is not guilty of larceny unless he carries away the personal
property that he took trespassorily from another. However, virtually any movement of the
property away from the point of caption is sufficient, e.g., larceny, rather than attempted
larceny, occurs even if a shoplifter is caught with the merchant’s property in his possession inside the premises.
 Model Penal Code – The Code does not require proof of asportation. [MPC §
223.2(1)] this feature of the Code has been incorporated into most states’ revised theft laws.
[F] Personal Property
 Land and Attachments Thereto – The common law of larceny does not protect land because by its nature it is immovable. Items attached to the land, e.g., trees, crops, and inanimate objects affixed in the earth also fall outside the scope of the offense. Once they are severed from the land, however, they become personal property and subject to larceny law. In contrast, the Model Penal Code and many modern theft statutes cover all property (“anything of value”), [MPC § 223.0(6)] including “immovable” property, such as real estate, and “movable” property, “including things growing on, or found in land.” [MPC § 223.0(4)]
 Animals – At common law, animals in the state of nature or ferae naturae (e.g., wild
deer, wild birds, fish in an open river) were not “property” within the meaning of larceny
law. However, once an animal was confined by a person on his land or killed, it became his personal property, subject to the law’s protection.
Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc.Page-72 All rights reserved.
 Stolen Property and Contraband – It is larceny for a person to take and carry away
the property of another, even if the “victim” also had no right to possess the property in
 Intangible Personal Property – Because common law larceny involves the wrongful
taking and carrying away of personal property, property without a corporeal existence, i.e., intangible property, is excluded from its coverage. Today the vast majority of states follow the Model Penal Code and prohibit the unlawful transfer of intangible personal property rights. [MPC § 223.2(2)]
[G] Intent to Steal
 In General – Courts commonly state that a person is not guilty of larceny unless he
takes and carries away the personal property of another with the “specific intent to steal” the property. However, courts have construed reckless behavior to constitute intent if the
defendant knew that his conduct would create a substantial risk of permanent loss, i.e., that the defendant was guilty of recklessly exposing the property to permanent loss.
 Continuing-Trespass Doctrine – When a person takes possession of another person’s property by trespass, every moment that he retains possession of it constitutes a new trespassory taking that continues until he terminates possession of the property.
 Claim of Right – A person is not guilty of larceny if he takes property belonging to
another person based on the good faith belief that he has a right to possess the property.The defendant’s belief negates the specific intent to steal.
[H] Lost and Mislaid Property – An owner of property retains constructive possession of his lost property if there exists a reasonable clue to ownership of it when it is discovered. A reasonable clue to ownership exists if the finder: (1) knows to whom the lost property belongs; or (2) has reasonable ground to believe, from the nature of the property, or the circumstances under which it is found, that the owner can be ascertained.
Embezzlement is not a common law offense and thus is a legislative creation. Most embezzlement statutes set forth the following elements:
(1) That the defendant came into possession of the personal property of another in alawful manner;
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(2) That the defendant thereafter fraudulently converted the property; and
(3) That the defendant came into possession of the property as the result of entrustment by or for the owner of the property.
[A] In General – At common law, a person who “knowingly and designedly” obtains title to property by false pretenses is guilty of the offense of false pretenses. A “false pretense” is a false representation of an existing fact.
[B] Elements of the Offense
 False Representation – False pretenses requires a false representation, whether in the
form of writing, speech, or conduct. Generally, nondisclosure of a material fact does not
constitute false pretenses, even if the committer of the information knows that the other party is acting under a false impression. However, nondisclosure constitutes misrepresentation if the committer has a duty of disclosure, such as when he has a fiduciary relationship to the victim.
 Existing Fact
[a] Common and Statutory Law – At common law, the expression of an opinion, uttered with the intent to defraud another, does not constitute false pretenses. According to the modern majority rule, the offense of false pretenses also does not apply to misrepresentations regarding future conduct, although many states have recently expanded their theft laws to encompass false promises.
[b] Model Penal Code – Section § 223.3 provides that a person is guilty of “theft by deception” (the Code’s equivalent offense) if he creates or reinforces a false impression regarding the value of property. However, the Code expressly immunizes puffing, if the statement would not deceive an ordinary listener.
The Model Penal Code prohibits deception regarding a person’s “intention or other state of mind.” The Code expressly provides, however, that deception regarding the intention to fulfill a promise cannot be inferred solely from the fact that the promisor did not perform as guaranteed. [MPC § 223.3(1)]
(Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc.Page-72 All rights reserved, Ch- 26)
Computer crime, also known as cyber crime, e-crimes, hi-tech crime or electronic crime, is referred to any criminal activity that is done by means or through a computer or internet network.
Some of these include illegal access to protected websites, illegal interception of computer data, unauthorized data interference, and unauthorized interference with the functioning of a computer system, misuse of information technology devices, electronic fraud and internet-related forgery. As per statistics available with the US Uniform Crime Reporting Agency, more than 300 million people around the globe have access to World Wide Web, out of which, more than 1 million are engaged in one or the other types of cyber crime activities.
Although, there are several different forms of cyber crimes in vogue, all these can be broadly classified into four major types of computer crimes. Mentioned below are two important types of cyber crimes.
- Computer as a target: Objective of this crime is to damage or steal dat