A death that is caused by
unexpected or unintended means.
Death resulting from an accident from an unusual event that was unanticipated by everyone involved. A death may be considered Â"accidentalÂ" even if it was intentional or expected. For example, an insurance policy may provide that its accidental death benefit will be paid if the insured is murdered (although generally not if the beneficiary committed the murder).
A death that is the result of a
purposeful human act lawfully
undertaken in the reasonable belief
that no harm would result.
The killing of a human being by the
act, procurement, or omission of
another human being.
the act of decapitating a dead body is not considered
The "alive" requirement has been modified in some states, where the killing of a fetus is now
(1) Homicide that is permitted
under the law (execution). (2) A killing justified
for the good of society. (3) The
killing of another in self-defense
when danger of death or serious
bodily harm exists. (4) The killing
of a person according to one's
duties or out of necessity but
A killing conducted in a manner
that the criminal law does not
prohibit. Also, a killing that may
involve some fault but is not
The unlawful killing of a human
being without malice. Manslaughter
differs from murder in that malice
and premeditation are lacking.
Murder is the first of the three types of criminal homicide
The unlawful killing of a human
being, carried out with malice or
planned in advance.According to
common law, the killing of one
human being by another with
Types of Homicides
Justifiable, excusable, and criminal
Types of Criminal Homicides
Murder and manslaughter
The purposeful, knowing, reckless,
or negligent killing of one human
being by another. Also, a form of
homicide for which criminal
liability may be incurred. Criminal
homicide may be classified as
murder, manslaughter, or negligent
only to those homicides to which criminal liability may attach. Generally
speaking, any homicide that is not classified as justifiable or excusable may be considered
Model Penal Code: three types of criminal homicide
(1) murder (of which there may be
various degrees), (2) manslaughter (of which there may be various kinds), and (3) negligent
homicide (which some consider to be a variety of involuntary manslaughter).
The killing of a human being by
criminal negligence or by the
failure to exercise reasonable,
prudent care. Also, a criminal
offense committed by one whose
negligence is the direct and
proximate cause of another's
The corpus delicti of a criminal homicide consists of:
the death of a human being
and the fact that the death was caused by the criminal act or agency of another person.
the victim's death was the natural and probable consequence
of another person's unlawful conduct
Today, to conduct a successful prosecution on a charge of criminal homicide, the
state must establish the corpus delicti of the crime of homicide, that is, the prosecution must
establish the cause of death and show that death was caused by the criminal act of another.
essential element of homicide
"killing of a human being."the victim must have been alive before the homicidal act occurred. Hence,
under common law, the killing of an unborn child was not chargeable as homicide because
the fetus was not considered "alive" in the sense of a "walking, breathing,
human being." As one court noted: "Where the birth process has not begun,
the courts are reluctant to consider the fetus a human being for homicide purposes."
if the fetus had been born prematurely at the time it was killed, it would
have had at least a 75 percent chance of survival for at least a limited period of time outside of
Killing of a Fetus
The "alive" requirement has been modified in some states, where the killing of a fetus is now
considered homicide. California's penal code, for example, was changed a few years ago to read:
"Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."12 The
change in the California law came in the case of Keeler v. Superior Court, in which a California
court held that the killing of an unborn fetus is not murder, since "a killing cannot be a
criminal homicide unless the victim is a living human being."13 By 1996, following California's
lead, 13 states had amended the wording of their homicide statutes to include a viable
fetus under the notion of a living human being. For purposes of such statutes, the term viable
is said to mean that if the fetus had been born prematurely at the time it was killed, it would
have had at least a 75 percent chance of survival for at least a limited period of time outside of
the womb. Four states (California, Minnesota, Massachusetts, and South Carolina) have
adopted even more stringent statutes, which say that, except for legal abortions, the killing of
any developing fetus beyond a given age (usually six or seven weeks) constitutes homicide.
In 2004, the California Supreme Court ruled that the killing of a fetus constitutes
second-degree murder, even when the killer had no idea that the expectant mother was
"[w]hen a defendant commits an act, the natural consequences of
which are dangerous to human life, with a conscious disregard for life in general, he acts with
implied malice towards those he ends up killing.... There is no requirement the defendant
specifically know of the existence of each victim."
It is generally
a felony to either solicit or to perform an illegal abortion.
the Unborn Victims of Violence Act16—
better known as Laci and
Conner's Law, after Laci Peterson and her unborn son (whom she had planned to name
Conner)—was signed into law in 2004 by then-President George W. Bush. The law makes
it a separate federal crime to "kill or attempt to kill" a fetus "at any stage of development"
during an assault on a pregnant woman. The law also specifically prohibits the prosecution
"of any person for conduct relating to an abortion for which the consent of the pregnant
woman, or a person authorized by law to act on her behalf, has been obtained or for which
such consent is implied by law."
Death determined by a "flat"
reading on an
usually after a 24-hour period, or
by other medical criteria.
Brain death is used today by
some courts to establish the death of homicide victims. Under the standard of brain death,
death is said to occur when a blood-flow test called a cerebral angiogram, or an electroencephalogram
(EEG), produces no evidence of physiological or electrical brain activity for a
given period of time (usually 12 hours). Brain death can occur even though the victim's
heart continues to beat and respiration persists.
of Death Act (UDDA)
A standard supported by the
American Medical Association, the
American Bar Association, and the
National Conference of
Commissioners on Uniform State
Laws, which provides that "[a]n
individual who has sustained
either: (1) irreversible cessation of
circulatory and respiratory
functions, or (2) irreversible
cessation of all functions of the
entire brain, including the brain
stem, is dead."i The UDDA
provides a model for legislation
and has been adopted in various
forms by many states.
Model Penal Code provides no definition of death. The code's Commentary cites two reasons
for this failure:
(1) Contemporary scientific understandings of death were not available
when the code was first drafted, making death difficult to define at the time; and (2) the delicate
contemporary interplay between criminal law and advances in medical science is still
too nebulous to reduce to statutory formulation.
The common law rule of death
"cessation of life," occurs when a person's heartbeat
and respiration cease
Difference between the Death according to common rule and the UDDA standards
Common Law Rule: Cessation of heart beat and cessation of respiratory function
UDDA standards: Irreversible cessation of brain function (including stem) OR irreversible cessation of circulatory and respiratory functions
Today, more than 30 states have adopted a "cessation of brain function" approach to
an evolutionary formulation
of the Uniform Brain Death Act originally proposed by the National Conference of Commissioners on Uniform State Laws, is supported by the American Medical Association,
the American Bar Association, and the national conference itself.
EEG measurement of brain function, the primary criterion by which brain death is
assessed today, is capable of recording only the brain's surface electrical activity and not
other electrical activity, which may be occurring deeper in the brain.
year and a day rule
A common law requirement that
homicide prosecutions could not
take place if the victim did not die
within a year and a day from the
time that the fatal act occurred.
was based on the belief that proof of causation (that is, the ability to show that actions by
the accused were the cause of the victim's death) becomes ever more difficult with the
passage of time—resulting in potentially unjustified prosecutions and convictions.
Today, only a few jurisdictions still follow the year and a day rule, although
others, like California, have extended the time limit. In California, for homicide
prosecutions to proceed, the victim's death must occur within three years
and a day from the time of the act
Voluntary, conscious conduct. An
affirmative act is not an omission
or a failure to act.
Criminal homicide must be the result of an affirmative act
For criminal liability to accrue, the cause of death must not be so remote as to
fail to constitute natural and probable consequences of the defendant's act. In other words,
for charges of homicide to be brought successfully, a person's death must be the proximate
result of a human act
Homicide Proximate Cause
a determination of proximate cause requires that death
be a natural and probable consequence of the act in question. A test that is frequently used
can be stated this way: If the original act had not occurred, would the victim have died?
an act that is determined to be the proximate
cause of death need not be the only or sole cause of a person's death
delays in medical treatment, whether avoidable or not, are
not in fact intervening forces and cannot legally be considered superseding causes of death
that would relieve murder defendants from criminal responsibility.34 An accused cannot be
found guilty of criminal homicide, however, when death is brought about by grossly
erroneous medical or surgical treatment rather than by the wound inflicted by the accused.
Finally, when the conduct of two or more people concurrently contributes to the death of a
human being, the conduct of each person can be viewed as a proximate cause regardless of
the extent to which each contributed to the death.
The elements of the crime of
• An unlawful killing
• Of a human being
• With malice aforethought
A willful, deliberate, and
premeditated unlawful killing.
Hence murder is clearly first degree when it is committed by poisoning or by
lying in wait, or when it involves torture. First-degree murder is usually punishable by death
or by life in prison.
The act of deliberating, meditating
on, or planning a course of action,
such as a crime.
premeditation requires the opportunity
for reflection between the time the intent to act is formed and the act itself is committed
Expanding the Elements of Mens Rea (Premeditation)
- Enough Time to Properly Consider Crime
- Weighing of Pros and Cons of Committing Crime
- Clear Plan for How Crime Should Occur
- Ability to Envision How Crime Will Occur
Categories of Murder
first degree and second degree.
Depending on the jurisdiction,
either (1) a murder committed
during the perpetration or
attempted perpetration of an
enumerated felony, such as arson,
rape, robbery, or burglary, or (2)
any murder not classified by
statute as first-degree murder.
An essential element of the crime of murder. A legal term that refers to the
intentional doing of a wrongful act
without just cause or legal excuse.
In cases of homicide, the term
means "an intention to kill."
Although, technically speaking, malice aforethought is planned malice, emphasis today
is on the malice aspect of the term rather than on any kind of planning that includes the opportunity
for reflection. Hence, in modern context, the term can be understood as "the intention
to kill, actual or implied, under circumstances which do not constitute excuse or
justification or mitigate the offense to manslaughter."39 It is important to realize that neither
malice nor malice aforethought requires an ill will or hatred of the victim.
Other distinctions can also be drawn. When an accused consciously desires
to cause death, for example, the intent to kill is actual or express. It is implied
when the defendant intends to cause great bodily harm or where the natural tendency
of the defendant's behavior is to cause death or great bodily harm.
Where three degrees of murder are found
(1) murders that are committed willfully and deliberately and are premeditated;
(2) murders committed during the perpetration or attempted perpetration of
an enumerated felony, such as arson, rape, robbery, or burglary; and (3) all other types
First-degree murder is often described as requiring malice aforethought,
An unjustifiable, inexcusable, and
state of mind.
is an unjustifiable, inexcusable, and unmitigated person-endangering state of
mind."37 In contemporary murder statutes, the term malice aforethought is generally understood
to mean a killing while in possession of any one of the following five mental states:
(1) an intent to kill, (2) an intent to inflict great bodily injury, (3) an intent to commit a
felony (as in felony murder), (4) an intent to resist a lawful arrest, or (5) an awareness that
one is engaged in conduct that carries with it a high risk of someone else's death. The fifth
mental state, which describes unjustifiable conduct that is extremely reckless, is sometimes
called depraved heart murder when it results in the death of a human being.
It is important to realize that neither
malice nor malice aforethought requires an ill will or hatred of the victim.
"malice may be express or implied. It is
expressed when there is manifested a deliberate intention unlawfully to take
away the life of a fellow creature. It is implied, when no considerable provocation appears, or
when the circumstances attending the killing show an abandoned and malignant heart."
Malice may exist where the killing is unpremeditated, and malice may be inferred from
surrounding circumstances. Pointing a firearm at an individual and firing it, for example,
creates the presumption that the defendant actually intended to kill the victim. Malice may
also be established by proving that the defendant intended to inflict serious bodily injury,
even though he or she did not consciously desire the death of the victim.
under some circumstances a defendant may be guilty of murder if
he or she acts in a manner that creates an unusually high risk of another's death and that
does in fact result in death. Driving more than 100 miles per hour in a school zone while
young children are present, for example, could establish malice in the form of a "depraved
mind" or an "abandoned and malignant heart." A similar situation could exist when someone
puts a healthy newborn baby in a trash bin and abandons it, or fires a weapon into a
Most states require a subjective realization of the
risk, on the theory that anything less is too removed from the notion of an "intent to kill"
to justify a charge of murder.
depraved heart murder
(1) Unjustifiable conduct that is
extremely negligent and results in
the death of a human being, or
(2) the killing of a human being
with extreme atrocity.
Murder for which the death
penalty is authorized by law.
The most common statutory requirement of first-degree murder is that the killing had to
have been premeditated and deliberate.
The concepts of premeditation and deliberation are attempts to encapsulate the mental
state of the offender at the time of the crime. The idea that only those who kill with clear
intention, or who envision killing before the commission of their crimes, should be subject
to capital punishment is well supported by decisions of the U.S. Supreme Court.
an accomplice to murder can be given the death
penalty if he or she had the requisite mental state for capital murder, but not if he or she was
merely an accomplice with no desire that deadly force be used or that a killing take place.
the U.S. Supreme Court will not allow imposition of the death penalty for crimes other
than unlawful homicides committed with murderous intent.
Murder that was planned in
advance (however briefly) and
willfully carried out.
murder in which the intent to kill is formed pursuant to preexisting
reflection rather than as the result of a sudden impulse or the heat of passion. The
word premeditated means that the defendant must have considered the act before the killing.
As noted in one court case, premeditated means "formed or determined upon as a result of
careful thought and weighing of considerations for and against the proposed course of conduct."
In that case, the court stated that the true test of premeditation was not the duration
of time available for thought but the extent of reflection.
Murder plus one or more
aggravating factors as specified by
law. Aggravated murder is generally
Following the lead of the Model Penal Code, some states have rejected premeditation
and deliberation as the basis for identifying a murder as one that deserves the death penalty.
Those states have legislatively defined capital murder as murder plus one or more specific
aggravating factors, constituting what is sometimes called aggravated murder. The term
aggravated murder is found in the statutes of some states, although other states depict capital murder as "first-degree murder with aggravating
factors" or with "special circumstances.
Essentially, the concept of aggravated murder encompasses the notion that certain identifiable
factors surrounding the circumstances of a particular murder may so enhance the
culpability of the murderer that punishment of the first degree is warranted. While the
term aggravated murder is used to describe murders that are punishable by death in most jurisdictions,
the term can also refer to murders punishable by life imprisonment in jurisdictions
where the death penalty is lacking.
felony murder rule
A rule that establishes murder
liability for a defendant if another
person dies during the commission
of certain felonies.
Defenders of the rule contend that it reaffirms the sanctity of human
life. They say that the rule reflects society's judgment that the commission of a felony
resulting in death is more serious and deserving of greater punishment than the commission
of a felony that does not result in death. The felony murder rule is also intended to deter
negligent and accidental killings during the commission of a felony. Critics of the rule
complain that an unintended act cannot be effectively deterred, and they point out that
deaths during the commission of felonies—the crimes "targeted" by felony murder laws—
are quite rare
Because the felony murder rule applies whether the defendant kills the victim
intentionally, recklessly, negligently, accidentally, or unforeseeably (rather
than purposefully or intentionally), it creates a form of strict criminal liability
for any death that results from the intentional commission of a felony. Courts
have struggled with the felony murder rule because a murder conviction under the rule does
not require malice or intent. Generally speaking, courts have justified felony murder rules
in two ways: (1) by holding that the rule dispenses with the requirement for malice, and (2)
by holding that malice is implied from the intentional commission of a felony.
felony murder rule is today applied only to certain felonies. Generally, there are three
schemes for identifying those felonies to which the rule applies
including those acts that (1)
are inherently dangerous to life or health, (2) are held to be malum in se, and (3) were
felonies under common law. Malum in se acts, for purposes of the felony murder rule, include
"all felonies, all breaches of public order, injuries to person or property, outrages upon public
decency or good morals, and breaches of official duty, when done wilfully or corruptly."
A legal term used to describe an
act or course of behavior (usually
a felony) that, by its very nature, is
likely to result in death or serious
bodily harm to either the person
involved in the behavior or to
Most jurisdictions use an inherently dangerous test to decide when the felony murder rule
The Mens Rea of Homicide at Common Law and under the Model Penal Code
Common Law Mens Rea
Model Penal Code Mens Rea
Purposeful, knowing, and reckless with extreme
indifference to the value of life
All other unexcused homicides
Reckless, except the extreme indifference standard for murder
Not recognized at common law
is the second of the three general types of criminal homicide discussed in this
chapter. Manslaughter is the unlawful killing of a human being without malice. Manslaughter
differs from murder in that malice and premeditation are lacking. Hence the elements of
the crime of manslaughter are
• An unlawful killing
• Of a human being
• Without malice
constitutes manslaughter when . . . a homicide which would otherwise be murder is committed
under the influence of extreme mental or emotional disturbance for which there is
reasonable explanation or excuse. The reasonableness of such explanation or excuse shall
be determined from the viewpoint of a person in the actor's situation under the circumstances
as he believes them to be."
An unlawful killing of a human
being, without malice, that is done
intentionally during a sudden
quarrel or in the heat of passion.
Also, a killing committed without
lawful justification, wherein the
defendant acted under a sudden
and intense passion resulting from
Voluntary manslaughter would otherwise be murder,
except that it is committed in response to adequate provocation,
The Model Penal Code approach to voluntary manslaughter is similar except for the lack
of a "sudden passion" requirement.
Provocation that "would cause a
reasonable person to lose selfcontrol."
Also called reasonable provocation.
Under common law, only a limited set of circumstances fell into the
category of "reasonable provocation." Among them were mutual combat, serious assault or battery, an unlawful arrest, the commission of a crime against a close relative or family member,
and the witnessing of one's spouse in an act of adultery. Generally, provocative words
alone did not provide adequate provocation to reduce a willful killing to manslaughter
Murder vs. Voluntary Manslaughter
Murder: Starts with the heat of movement. Once the "heat of movement" has ended, it is thought the accused has had sufficient time to "cool" his or her temper, then we have premeditation leading to the act of homicide
Voluntary manslaughter: the act of voluntary manslaughter must be committed during the heat of the movement to stand in court
In cases of voluntary manslaughter,
a cause that would commonly
produce a degree of anger, rage, or
terror in a person of ordinary
temper, sufficient to render the
mind of the defendant incapable of
In cases of voluntary manslaughter,
passion directly caused by and
rising out of provocation by the
victim or of another acting with
the victim. Sudden passion includes
the understanding that the passion
arises at the time of the killing and
is not solely the result of former
To reduce what would otherwise be murder to voluntary manslaughter in the To reduce what would otherwise be murder to voluntary manslaughter in the state of
Texas, four requirements must be met:
Texas, four requirements must be met:
(1) The defendant must have acted in response to a
provocation that would be sufficient to cause a reasonable person to lose self-control, (2) the
defendant must have acted in the "heat of passion," (3) any lapse of time between the provocation
and the killing must not have been great enough that a reasonable person would have "cooled off" or regained control of themselves, and (4) the defendant must not, in fact, have
"cooled off" by the time of the killing. As the last three requirements indicate, provocation
must occur close in time to the killing for a lesser degree of murder to be charged. A murder
that occurs six months after an incident of provocation, for example, would probably not be
reduced to voluntary manslaughter in most jurisdictions.
An unintentional killing for which
criminal liability is imposed but
that does not constitute murder.
Also, the unintentional killing of a
person during the commission of a
lesser unlawful act, or the killing of
someone during the commission
of a lawful act, which nevertheless
results in an unlawful death.
is an unlawful homicide that is unintentionally caused and
that either (1) is the result of an unlawful act other than a dangerous felony (or of a lawful
act done in an unlawful way) or (2) occurs as the result of criminal negligence or
recklessness. The central distinguishing feature between voluntary and involuntary
manslaughter is the absence in involuntary manslaughter of the intention to kill or to
commit any unlawful act that might reasonably produce death or great bodily harm.
For an unintentional killing to constitute involuntary manslaughter, gross negligence
or criminal negligence is required. In addition, there is generally the requirement that a
very substantial danger of serious bodily harm or death existed at the time of the offense.
An involuntary manslaughter conviction may be based on an
accidental death caused by the defendant during the commission of an
unlawful act. The unlawful act may be any misdemeanor or felony that is not
included under the felony murder rule. In some states, when death occurs as
the result of an unlawful act that is a misdemeanor involving danger of injury,
a charge of misdemeanor manslaughter may be brought under what is known
as the misdemeanor manslaughter rule, which still operates in about a dozen states. Whether
the unlawful act is a felony or a misdemeanor, there must be a causal relationship between
the act and the death of the victim. In those situations in which the wrongful act is a serious
felony, however, the requirement of proximate cause is generally suspended. The Model
Penal Code does not define manslaughter in relationship to other unlawful behavior except
to say generally that "[c]riminal homicide constitutes manslaughter when (a) . . . it is
committed recklessly."57 The Model Penal Code does recognize the fact that the act that
causes death is unlawful and that this may have an evidentiary bearing on whether it is
criminally negligent homicide
Homicide that results from criminal negligence.
Unintentional killings may constitute involuntary manslaughter
when they result from criminal negligence—which in itself may be unlawful—or from
gross negligence. Some state laws describe a special category of involuntary manslaughter
called criminally negligent homicide. Although the definition may sound a bit circular,
criminally negligent homicide is usually defined as homicide resulting from criminal
Criminal negligence is negligence of such a nature and to such a degree that it is punishable
as a crime. Criminal negligence is defined by statute in most jurisdictions and
consists of flagrant and reckless disregard of the safety of others or of willful indifference
to the safety and welfare of others. Whether criminal negligence is present depends on
all the circumstances surrounding an act or a failure to act. Criminal negligence is usually
regarded as a form of gross negligence, which is a conscious disregard of one's duties,
resulting in injury or damage to another. However, when the defendant uses an
object or undertakes a course of action that is inherently dangerous, courts are generally
more willing to find him or her criminally negligent, even though the negligence
may not be gross. This is especially true in cases involving automobiles and firearms.
Gross negligence goes well beyond the purview of what is sometimes termed ordinary
negligence. Ordinary negligence is said to be "the want of ordinary care," or negligence
that could have been avoided if one had exercised ordinary, reasonable, or proper care.
Ordinary negligence is not willful or purposeful but, rather, unthinking. It is based on
the idea that the actor should have known the results or consequences of his or her actions,
whereas gross negligence rests on the belief that the actor was in fact cognizant
of the results of his or her acts.
The conscious disregard of one's
duties, resulting in injury or
damage to another.
"gross deviation from the standard
of conduct that a law-abiding person would observe in the defendant's situation."
is the third of the three general types of criminal homicide discussedThe confusion
stems from the fact that negligence may characterize both offenses. However, while involuntary
manslaughter charges may be based on criminal negligence or gross negligence,
the offense of negligent homicide, in contrast, allows for prosecution where the
defendant's conduct was negligent but the degree of negligence involved did not amount
to gross or criminal negligence or recklessness. Hence negligent homicide can be defined
as the killing of a person without intent to kill, when the killing takes place while the
offender is performing a negligent act or when the offender fails to exercise reasonable,
The Model Penal Code provides that "[c]riminal homicide constitutes negligent homicide
when it is committed negligently. In cases of negligent homicide, the failure of the defendant
to perceive the risk involved is not a defense."62 Under the Model Penal Code and
the codes of a number of states, negligent homicide is a third-degree felony, and it is considered
less serious than manslaught
in this chapter. Negligent homicide does not exist in the codes of all jurisdictions,
but in many states, deaths resulting from degrees of negligence below that
required for a charge of manslaughter may give rise to prosecutions for the crime of negligent
homicide. Negligent homicide is quite separate from the crime of involuntary
The killing of a human being as a
result of another person's
operation of a motor vehicle in a
reckless manner likely to cause
death or great bodily harm.
like negligent homicide, requires a substantially lower degree of
negligence than involuntary manslaughter
driving while intoxicated frequently
results in the imposition of greater punishment than would an involuntary
suicide was murder, and anyone who assisted another in committing
suicide was a party to murder. Generally, the modern position is that suicide is not murder because
of the requirement that a murder must be the killing of another individual. Thirty-five
states, however, have created the statutory crime of aiding or assisting suicide
Most statutes regarding the crime of aiding suicide refer only to passive action. Anyone
who takes active steps to end the life of another person is guilty of murder, even if the actions
were taken at the request of the decedent. It has been difficult for the courts to determine
when a defendant crosses the line between aiding suicide and committing murder.
Oral or anal copulation between
people of the same or different
gender or between a human being
and an animal.
Attempted or threatened battery.
A willful attempt or willful threat
to inflict injury on another person.
Also, the act of intentionally
frightening another person into
fearing immediate bodily harm.
One statutory definition of assault
reads "an unlawful attempt,
coupled with a present ability, to
commit a violent injury on the
person of another."
(1) Unlawful physical violence
inflicted on another without his or
her consent. (2) An intentional and
offensive touching or wrongful
physical contact with another,
without consent, that results in
some injury or offends or causes
When we speak of an assault we usually have
in mind a battery which was attempted or threatened. The attempt may have failed or it may have succeeded. If it failed, it constitutes an assault only. If it succeeded, it is an assault and battery."2 Some state penal codes do not contain the word assault, replacing it with the term attempted battery.
Battery requires actual unauthorized contact with the victim. Generally,
an assault is included in any actual battery—hence the crime of "assault and battery."
Major difference between criminal assault and battery
assault is a specific-intent crime whereas battery is not. To commit an assault,
a person must have intended to either commit a battery (attempted battery) or must
have intentionally frightened the victim into fearing immediate bodily harm. Battery is a
general-intent crime. It may be the natural consequence of the commission of some otheroffense, or it can result from gross negligence or recklessness.
a third term of relevance
here, is a battery that causes great bodily harm or disfigurement
The intentional infliction of injury
on another that causes the
removal of, seriously disfigures, or
impairs the function of a member
or organ of the body.
The common law elements of the attempted battery-type of
• An unlawful attempt
• With present ability
• To commit a battery
types of assault
an attempted battery and a
threatened battery. In the first type of assault, the defendant attempted to commit a battery.
The second type of assault, that of threatened battery, occurred when the defendant placed
another in fear of imminent injury. The difference between the two is that the first was an
actual attempt to commit a battery, whereas the second criminalized conduct that made another
person fear an assault.
attempted battery type assault
the victim need not be aware of the attempt. The victim,
for example, may be unconscious at the time of the assault. To constitute assault, there must
be an overt act from which the inference can be drawn that a violent injury was intended;
mere words alone are insufficient.
attempt to commit an injury or an offensive touching
must be unlawful.
Accordingly, the attempt to inflict injury on a person in a valid self-defense situation is not
an unlawful attempt. The use of force by law enforcement officers in effecting a valid arrest
is also not unlawful, nor is the reasonable use of force in a boxing match or football game.
If, however, the force used or attempted to be used is not authorized or is used in an unauthorized
manner, it may be unlawful. Although fights and threatening gestures are a regular
and expected part of professional boxing matches, for example, physical altercations are expected
to remain within clearly specified bounds—and players who exceed those bounds
may face criminal penalties or noncriminal sanctions.
requires that the defendant be physically
capable of carrying out the attempted act and that the method he or she intends or
threatens to use will in fact inflict an injury or offensive touching if carried out.
It does not, in most jurisdictions, refer
to the fact that for some reason or condition unknown to and not controlled by the defendant,
the intended injury could not actually be inflicted. If, for example, the defendant
fires a pistol at someone in an automobile, but, unknown to the defendant, the automobile
was constructed with bulletproof glass and armor plating, the defendant would still be guilty
Physical harm to a human being. In
cases of assault and battery, the
term refers to the unlawful
application of physical force on the
person of the victim—even when
no actual physical harm results.
It does not mean that the injury attempted must be a severe one or must cause
great physical pain. It merely refers to an unlawful application of physical force on the person
of the victim. As one court noted, for assault crimes the terms violence and force are synonymous
and include any application of force, even if it entails no pain or bodily harm or
leaves no mark
of another in fear of imminent injury. In some jurisdictions, the crime is described as
intentional-frightening assault. As noted earlier, not all jurisdictions recognize this form of assault.
The threatened battery-type assault requires that the defendant intend to create fear of imminent injury in the victim. As discussed previously, words alone do not suffice, and
some overt act must occur before the crime can be said to have been committed. Telling a
person, for example, "I'm going to kill you!" is not an assault unless accompanied by some
overt act, such as pointing a gun at the person.
Either type of assault may be made conditional upon meeting the assailant's demands. For
example, the bank robber's statement "One false move and I'll shoot!" is a conditional
To constitute an assault, the condition must be one that the defendant is not entitled to
place on the victim. For example, a property owner who assumes a threatening stance and
tells a trespasser, "Leave my property or I'll throw you off!" does not commit an assault since
property owners have a limited right to protect their property. If the condition is one that
the defendant has no right to place on the victim, however, the action constitutes an assault.
The statement "Hand me your money or I'll shoot," for example, qualifies as such a
condition and may constitute an assault—especially when the person making it is armed or
is thought to be armed.
In most jurisdictions, a simple assault is one unaccompanied by aggravating circumstances.
Simple assaults are classified as misdemeanors. All jurisdictions, however, have recognized
various types of felonious assaults, which they call aggravated assaults.
An assault that is committed with
the intention of committing an
additional crime, such as assault
with intent to commit a felony;
assault with intent to murder;
assault with intent to commit rape,
sodomy, mayhem, robbery, or grand
larceny; and assault with intent to
commit any other felony.Also, an
assault that involves special
circumstances specified by law.
are generally assaults with intent to commit some other offense, such as rape or murder. As
a result, aggravated assault is sometimes called assault with intent, and indictments for specific
offenses, such as assault with intent to kill, are not unusual. Aggravated assault was not
an offense under common law
Special categories of assaults
such as assault with a dangerous weapon, assault on a
peace officer, assault on a school official or teacher, assault on a prison guard or correctional
worker, and so on—have also been classified in various jurisdictions as aggravated assault.
Hence the term aggravated assault may mean (1) an assault that is committed with the intention
of committing an additional crime or (2) an assault that involves special circumstances. To prove an aggravated assault, the prosecution must successfully show
that an assault took place as part of another, more serious offense or that an assault occurred
with an aggravating element specified by law.
Where assault is considered to be aggravated when committed with a dangerous weapon,
the weapons are usually said to be of two types
(1) those that are inherently dangerous or
deadly (as a loaded gun would be) and (2) those that are not dangerous per se but that can
be used in a dangerous fashion (such as a rope used in a strangling). Some courts have held
that a dog used in an attack is a dangerous weapon,4 others have held that hands and fists
can be deadly weapons even if the person has not had martial arts or combat training,5 and
still others have held that human teeth are not deadly weapons.
Difference between attempt and assault
for a criminal assault
to occur, the defendant must be closer to completing the offense than is required for a criminal
attempt. The concept of proximity to completion refers to criminal attempt crimes in
which the court looks at the nearness to completion of the intended crime in order to determine
if a criminal attempt has taken place.
Another major difference between attempt and assault is that an accused may be convicted
of a criminal attempt even if he or she could not carry out the primary offense. An
attempted battery-type of assault requires an unlawful attempt with the present ability to
commit the battery. Accordingly, a defendant could be convicted of an attempted murder
without committing the crime of assault with the intent to commit murder if the defendant's
conduct constitutes a substantial step toward completion of the murder but the defendant
lacks present ability to commit the murder. Similarly, were he to make unwanted physical
advances under certain circumstances, a man who is physically unable to complete the act
of intercourse might still be conceptually guilty of an attempt to commit an assault with intent
The intentional frightening of
another through following,
harassing, annoying, tormenting,
or terrorizing activities.
a knowing and
wilful course of conduct directed toward a specific person which seriously harms, annoys,
torments, or terrorizes that person, and which serves no legitimate purpose.
a verbal or written threat implied by a pattern of conduct or a combination
of verbal or written statements and conduct made with the intent and apparent ability
to carry out the threat so as to cause the person who is the target of the threat to reasonably
fear for his or her safety or for the safety of his or her immediate family
the use of the Internet, e-mail, or other electronic communications
devices to stalk another person
Differences between offline stalking and cyberstalking
Offline stalking generally requires the perpetrator and the victim to be located in the same
geographic area; cyberstalkers may be located across the street or across the country.
• Electronic communication technologies make it much easier for a cyberstalker to encourage
third parties to harass or threaten a victim (for example, impersonating the victim and posting
inflammatory messages to bulletin boards and in chat rooms, causing viewers of that message
to send threatening messages back to the victim).
• Electronic communication technologies also lower the barriers to harassment and threats; a
cyberstalker does not need to physically confront the victim.
The offense of
battery occurs when a person:
(1) actually and intentionally touches or strikes another person
against the will of the other; or (2) intentionally causes bodily harm to another person.
The doctrine of transferred intent applies to the crime of battery. Accordingly, if an assailant
intends to injure one person and by mistake or accident injures another, he or she is
guilty of battery. If, for example, a defendant intended to hit his girlfriend with a baseball
bat but in swinging the bat accidentally hit her son instead, the defendant would be guilty.
of battery on the son (via transferred intent) and also guilty of assault (attempted battery)
on his girlfriend.
Battery has three elements
• The willful and unlawful
• Use of force, violence, or offensive contact
• Against the person of another
Although in most cases battery is an intentional crime, it may also be committed recklessly
or with criminal negligence.19 The Texas Penal Code, for example, makes it a crime
to "intentionally, knowingly, or recklessly [cause] bodily injury to another."
A touching that is inferred or
implied from prevailing
circumstances.Also, a touching for
purposes of the law.
In one case, for example, a defendant was convicted of battery when he hit a horse that the
"victim" was riding. In another case, a defendant was convicted of battery when he got a
young female child to touch his penis. Constructive touching is touching that is implied by
law to replace the touching requirement (for example, where the defendant gets the young
female to do the touching or where the defendant touches a hat that the victim is wearing).
Additionally, the force necessary to produce the touching can be applied indirectly, as where
the defendant sets in motion a force or scheme that results in unwanted touching.
In most jurisdictions, the crime of battery is a misdemeanor unless there are special conditions
associated with it that aggravate the crime. The most common special conditions include
battery on a peace officer, battery with the intent to inflict death or serious bodily
injury, battery that results in serious bodily injury, and sexual battery.
Serious bodily injury
loss of consciousness, concussion, bone fracture, protracted loss or impairment of any
bodily member or organ, a wound that requires extensive suturing, and disfigurement
occurs when a person unlawfully touches an intimate part of another person's
body against that person's will and for the purpose of sexual arousal, gratification, or abuse
Sexual battery may also include cases of forced intimate touching in which the victim is institutionalized
for medical treatment and is seriously disabled or medically incapacitated.
The effective consent of the victim, also referred to as legal consent, or the defendant's reasonable
belief that the victim legally consented to the conduct in question is a defense to the
charge of battery if the conduct did not threaten to inflict or actually inflict serious bodily injury
Consent that has been obtained in
a legal manner. Also called legal
The person giving
consent must be of legal age and mentally capable of giving consent. Effective consent
cannot be obtained by fraud or by force, and it cannot be given by a person who does not have
the capacity to consent (that is, to understandingly consent). No battery occurs, for example,
when two people engage in friendly "horseplay" since both consent to physical interaction. A
person cannot, however, effectively consent to the infliction of serious bodily injury. Hence
the fact that a deathly ill "victim" begged another person to shoot him to put him out of his
misery cannot be used as a defense if the other person obliges. Similarly, a child cannot effectively
consent to sexual contact. Accordingly, sexual contact with a child is at least a battery
(or a sexual battery, depending on the wording used by the jurisdiction in which the activity
occurs). A workable defense to a charge of battery might also be offered where it can be shown
that the victim knew the conduct was a risk of his or her occupation or the conduct was a recognized
medical treatment or a scientific experiment conducted by recognized methods.
Model Penal Code defines assault to include both assault and battery. The code
says, "A person is guilty of assault if he: (a) attempts to cause or purposely, knowingly, or
recklessly causes bodily injury to another
A battery that is committed with
the use of a deadly weapon, that is
committed with the intention of
committing another crime, or that
results in serious injury.
Aggravated battery did not exist under common law. Like the crime
of aggravated assault, aggravated battery may involve the use of a deadly weapon, may
involve acts committed with the intention of committing another crime (that is, rape or
murder), or may include cases of battery that result in serious injury. In cases of serious injury,
the degree of harm inflicted on the victim determines whether a crime is chargeable
as simple or aggravated battery.
Although the definition of a deadly weapon
may be open to dispute, some courts have held that hands can be deadly weapons,25 as can
a simple pair of panty hose used in an attempt to strangle someone.
A few states define the crime of aggravated battery to include the battery of special categories
of people, such as those who are pregnant or have a physical handicap or who are
teachers or emergency personnel operating in a professional capacity. In some jurisdictions,
battery is a misdemeanor, whereas aggravated battery is a felony.
The crime of
mayhem developed as an alternative. and it was useful in punishing a perpetrator for a violent
attack that did not end in death. To constitute mayhem, the injury suffered by the
victim had to be serious and permanent. Under early common law, the injury had to be
one that lessened the ability of the victim to defend him- or herself. Later, the types of injuries
qualifying for prosecution under mayhem were broadened to include those that were
disfiguring. In most jurisdictions today, mayhem requires an intent on the part of the defendant
to cause injury to, or death of, the victim. There are three elements to the crime
• An unlawful battery
• Involving maliciously inflicting or attempting to inflict violent injury
• With one or more disabling or disfiguring injuries resulting from the illegal action
permanent disability or disfigurement of another human being, or depriving another
human being of a limb, organ, or member of his or her body under circumstances
manifesting extreme indifference to the physical or psychological well-being of that
criminal sexual conduct
A gender-neutral term applied
today to a wide variety of sex
offenses, including rape, sodomy,
criminal sexual conduct with
children, and deviate sexual
Under common law, unlawful
sexual intercourse with a female
without her consent.Today, rape
statutes in a number of
jurisdictions encompass unlawful
sexual intercourse between
members of the same gender.
deviate sexual intercourse
Any contact between any part of
the genitals of one person and the
mouth or anus of another.
the elements of the crime of rape are
1. Sexual intercourse with a person who is not the spouse of the perpetrator
2. Through force, through the threat of force, or by guile
3. And without the lawful consent of the victim
a wife is irrebuttably presumed to consent
to sexual relations with her husband, even if forcible and without consent
The rape of one's spouse.
Most jurisdictions also distinguish between various degrees of rape. First-degree, or aggravated,
rape is often defined to include one or more of the following
(1) an armed offender,
(2) serious bodily injury to the victim, (3) an additional felony where the rape occurs
during the commission of some other crime, or (4) gang rape. The category of second-degree
rape generally includes any other type of rape.
Lawful consent can be lacking during sexual intercourse under any
number of circumstances, ranging from the use of force or threats to achieve compliance to
intercourse with an unconscious or mentally incompetent individual. In individual cases,
however, the question of whether intercourse occurred with or without the consent of the
victim may be a difficult question to answer. If the victim is incapable of giving legally
effective consent, then intercourse with the victim is rape even if he or she expressed words
indicating consent. The fact that the victim consented to sexual foreplay does not mean that
the victim consented to intercourse, nor does the fact that the victim had in the past
consented to intercourse with the defendant constitute consent on the present occasion. A
difficult question arises in situations in which the victim remains silent and offers no
resistance to the act. Most jurisdictions require that the victim, if conscious and able to
communicate, must in some manner manifest his or her objection to the act for it to
A lack of consent can be established by any acts of the victim that would
lead a reasonable person to believe that he or she does not consent to the intercourse.
In most jurisdictions, a reasonable mistake as to whether the victim
consented is a defense
Sexual intercourse, whether
consensual or not, with a person
under the age of consent, as
specified by statute.
As mentioned earlier in this book, strict liability crimes can be
committed when the offender engages in activity that is legally prohibited, even if the
offender is unaware of breaking the law or did not intend to do so. Hence a man who has
sexual intercourse with a consenting female under the age specified by statute can still
be found guilty of statutory rape even though he thought she was older. Most jurisdictions
hold that even a reasonable belief on the part of the defendant that the victim was over
the age of consent at the time of the offense is no defense to a charge of statutory rape.
The common law definition of rape required both (1) penetration and
(2) an unwilling female victim. Accordingly, it was generally held that there was no crime
of homosexual rape under common law. Today, however, a majority of jurisdictions have
rape statutes that are gender neutral. In those jurisdictions, intercourse between people of
the same gender may be rape if all of the other elements of the crime are present.
Rape Shield Laws
A statute intended to protect
victims of rape by limiting a
defendant's in-court use of a
victim's sexual history.
A typical rape shield provision requires that the relevance of any
evidence regarding the past sexual conduct of a rape victim be demonstrated before it can
be presented in court. Whether a rape victim was a virgin, sexually experienced, or even a
prostitute before the alleged rape, for example, may be irrelevant. In some cases, however,
such as when a defendant claims that the person charging him with rape is a prostitute and
had actually consented to an act of prostitution, the victim's sexual history may be regarded
Rape shield laws concern themselves more with appropriate courtroom procedure than
they do with criminal behavior. In general, any evidence that has a tendency to prove or disprove
the facts at issue is said to have probative value. Rape shield laws mandate that the
probative value, or worth, of any particular information about a woman's sexual history be
demonstrated before such evidence can be presented in open court.
The worth of any evidence to
prove or disprove the facts at
A statutory crime that combines
all sexual offenses into one offense
(often with various degrees). It is
broader than the common law
crime of rape.
Sexual assault may include the common
law crimes of rape, deviate sexual intercourse, unlawful sexual contact, fellatio (oral
stimulation of the male penis), and statutory rape. For purposes of law, deviate sexual intercourse,
as mentioned earlier in this chapter, means any contact between any part of the
genitals of one person and the mouth or anus of another person or the penetration of the
genitals or the anus of another person with an object. It can also include any form of
sexual intercourse between a human being and an animal.
Any touching of the anus, breast,
or any part of the genitals of
another person with intent to
arouse or gratify the sexual desire
of any person.
Under Texas law, sexual assault becomes aggravated sexual assault (a felony in the first
degree) if the offender
(1) causes serious bodily injury or attempts to cause the death of
the victim or another person in the course of the same criminal episode; (2) by acts or
words places the victim in fear that death, serious bodily injury, or kidnapping will be imminently
inflicted on any person; (3) by acts or words occurring in the presence of the victim,
threatens to cause the death, serious bodily injury, or kidnapping of any person;
(4) uses or exhibits a deadly weapon in the course of the same criminal episode; or (5) acts
in concert with another in perpetrating the offense. Sexual assault also falls into the "aggravated"
category under Texas law if the victim is younger than 14 years of age or older
than 64 years.
The unlawful removal of a person
from the place where he or she is
found, against that person's will
and through the use of force,
fraud, threats, or some other form
of intimidation.Also, an aggravated
form of false imprisonment that is
accompanied by either a moving
or secreting of the victim.
Even so, the
movement involved must be "substantial," meaning that merely forcing someone out of
one's way or pushing a person a few feet or even across the street would not constitute kidnapping
within the meaning of the law.
Generally speaking, the elements of kidnapping are
• An unlawful taking and carrying away
• Of a human being
• By force, fraud, threats, or intimidation
• And against the person's will
In some jurisdictions, kidnapping may also be committed by the use of deadly force to
confine the victim or by confining the victim for purposes of extortion, ransom, or sexual
assault. Kidnapping for ransom (or aggravated kidnapping, as these crimes are sometimes
called) is a more serious form of kidnapping and is usually punished more severely than
the crime of simple kidnapping
If all the elements are present except a substantial movement of the victim, then the offense may be an attempted kidnapping.
The general rule, however, is that movement or confinement accomplished by
force or threat is sufficient to constitute the crime of kidnapping.51 In some cases, the
mere persuading of a minor or incompetent person to remain in one place or to move is
sufficient to constitute kidnapping. If a victim at first willingly accompanies the offender,
the crime of kidnapping still occurs if force or restraint is later used to move the
In those situations in which the movement of the victim is merely incidental to the
commission of another crime, a few jurisdictions allow the prosecution of the defendant for
both the intended crime and for kidnapping.52 Some jurisdictions, though, hold that a kidnapping
has not been committed unless the forced movement substantially increases the
risk to the victim beyond the risk created by the other crime.53 In one Michigan case, for
example, the defendant walked into a store, pulled a gun, and compelled the victim to go
into another room to open a safe. Although the defendant was clearly guilty of armed robbery,
a court held that he had not committed kidnapping—not because of the short distance
involved in the forced movement, but because movement of the victim was merely
244 Chapter 8
incidental to commission of the armed robbery. Had the defendant used the victim as a
shield as he left the scene of the robbery, however, it is likely that he would also have been
guilty of kidnapping.
A federal kidnapping law, sometimes called the Lindbergh Law,54 was created in response
to the kidnapping of the infant son of Charles A. Lindbergh, who was the first
person to make a nonstop solo trans-Atlantic flight. The Lindbergh baby was taken from
the family's New Jersey home in 1932 by Bruno Richard Hauptmann. The child was later
found dead, and Hauptmann was convicted of the crime and executed in 1936. Other
federal laws make it a crime to take a hostage55 or to knowingly receive, possess, or dispose
of any money or property that has been delivered as ransom on behalf of a victim of
The unlawful restraint of another
person's liberty.Also, the unlawful
detention of a person without his
or her consent.Also called false
which is basically the unlawful violation of the personal liberty of
another, is similar to kidnapping except that it does not involve the "carrying away" of the
victim. Not all states have false imprisonment statutes, and in those that do, it is usually classified
as a misdemeanor. The elements of false imprisonment are
• An unlawful restraint by one person
• Of another person's freedom of movement
• Without the victim's consent or without legal justification
The defendant must have compelled the victim to remain against his or her will or
to go where he or she did not want to go.57 While the confinement must be accomplished
by actual physical restraint, the application of force is not essential. Confinement
may be accomplished by threats or by some other action of the defendant that
restrains the victim's freedom of movement. One court, for example, found a defendant
guilty of false imprisonment for intentionally driving a car too fast for his passenger to
In cases in which the confinement is accomplished by threat, the victim must be aware
of the threat. Similarly, it is not false imprisonment to prevent a person from going in one
direction, as long as the person may go in a different direction and is aware of this opportunity.
Also, confinement must be unlawful in that there must be no legal authority for the
confinement. An arrest that is made without proper legal authority constitutes false arrest—
a form of false imprisonment.
False imprisonment is essentially a lesser included offense of the crime of kidnapping.
Some authors note that kidnapping is also an aggravated form of false imprisonment—as
this excerpt from Florida law reveals: "The term 'false imprisonment' means forcibly, by
threat, or secretly confining, abducting, imprisoning, or restraining another person without
lawful authority and against his will."59 As with kidnapping, the statute also provides that
"[c]onfinement of a child under the age of thirteen is against his will within the meaning of
this section if such confinement is without the consent of his parent or legal guardian."60
Federal law imposes a duty on states to enforce the child-custody determinations made by
other states under the Parental Kidnapping Prevention Act.61 Some jurisdictions, which define
false imprisonment simply as "restraining another unlawfully so as to interfere substantially
with his liberty," would consider false imprisonment achieved through the use of force
or threats as "aggravated false imprisonment."
Under common law, both kidnapping and false imprisonment were misdemeanors. Today,
however, kidnapping is generally regarded far more seriously, and false imprisonment remains
a lesser crime (Figure 8-4). Florida law, for example, reads: "A person who kidnaps a
person is guilty of a felony of the first degree, punishable by imprisonment for a term of years
not exceeding life
A general term embracing a wide variety of misconduct by which a person is unlawfully deprived of his or her property. Crimes of theft are generally property crimes
larceny, burglary, criminal trespass, arson, computer crimes involving misappropriation,
and, of course, identity theft.
Crimes of theft are called acquisitive offenses. A crime that involves the unlawful
acquiring or appropriation of
someone else's property. Larceny,
extortion, embezzlement, false
pretenses, robbery, and the
receiving of stolen property are all
acquisitive offenses. Also called
wrongful acquisition crime and crime
The trespassory or wrongful taking
and carrying away (asportation) of
the personal property of another
with intent to steal.
purpose of theft law
security of property by threatening aggressors with punishment.