Siegel's Criminal Law: Essay and Multiple-Choice Questions and Answers, Fifth Edition by Brian N. Siegel & Lazar Emanuel

Author:Brian N. Siegel & Lazar Emanuel [Siegel, Brian N.]
Language: eng
Format: azw3
Tags: Law &#x0026, Business
Publisher: Aspen Publishers
Published: 2013-04-16T16:00:00+00:00

Question 24

A'S LIABILITY AT COMMON LAW

Attempted statutory rape

It is posited in the question that A intended to engage in the prohibited conduct. He did not, however, desire to engage in statutory rape. In fact, that was likely NOT his intent. Nonetheless, according to the doctrine the courts established in Commonwealth v. Dunne, 394. Mass. 10 (1985) a defendant charged with an attempt crime need only have the intent to engage in the prohibited conduct; with regard to attendant circumstances he need only have the mental state required by statute. No mental state is specified in the statute, and in the majority of American jurisdictions, statutory rape is a crime of strict liability. Thus, A had the required mental state for attempted statutory rape. There is no question of mistake here, as the mistake could not negate the mens rea required by statute.

The question remains, however, whether he did the actus reus. At common law, it is generally required that the defendant get dangerously close to completing the crime before he can be charged with an attempt. Here, it appears that A was spotted entering B's home, some time before the crime was to be committed. Thus, it may be that he did not get sufficiently close to completing the crime to be charged with its attempt. However, there is little evidence that he would have desisted had he not been caught. Therefore, although this is a close call the actus reus is likely satisfied as well, and D could be convicted of attempted statutory rape.

Involuntary manslaughter

At common law involuntary manslaughter required that the defendant cause the death of another through more than civil negligence. The question, therefore, is whether A caused the death of C and whether he did so in a way that a reasonable person would have realized created a grave risk of death.

Felony Murder

A may be found liable of felony murder if a death occurred while he was engaged in a felony, the felony was inherently dangerous, the death was independent of the felony, and the death satisfies the other requirements regarding killers and victims.

Here, attempted statutory rape, even statutory rape, is likely not an inherently dangerous felony. The felony is looked at in the abstract, and it must be determined whether it can be performed safely. Here, it is easy to imagine a number of consensual statutory rapes which would not be inherently dangerous to human life. Although the law is in place to protect those in their tender years, it is a stretch to argue that statutory rape is always a threat to human life.

If the crime is found to be inherently dangerous, however, it is also independent of the killing. There is an independent felonious purpose B here, the desire to engage in sex with a person under the age of majority. Therefore the killing and the felony do not merge and attempted statutory rape can form the basis of a felony murder conviction.

Finally, A's liability may depend on whether the jurisdiction applies an agency or proximate cause theory of felony murder.

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