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Law, Justice, and Society: A Sociolegal Introduction. Chapter 5 Crime and Criminal Law. Crime and Criminal Law. Criminal law, a.k.a. substantive law, is the law of crimes Defined by statute prescriptions proscriptions Enforced by the state

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crime and criminal law
Crime and Criminal Law
  • Criminal law, a.k.a. substantive law, is the law of crimes
  • Defined by statute
    • prescriptions
    • proscriptions
  • Enforced by the state
  • Primary purpose is to protect the public from harm by punishing harmful acts that have occurred and seeking to avoid harm by forbidding conduct that may lead to it
crime and criminal law1
Crime and Criminal Law

What Is Crime?

  • “[A]n intentional act in violation of the criminal law committed without defense or excuse, and penalized by the state” (Tappan 1947, 100)

1. An act in violation

2. Of a criminal law for which

3. A punishment is prescribed;

4. The person committing this action must have intended to do so

5. And to have done so without any legally acceptable defenses or justifications

crime and criminal law2
Crime and Criminal Law

Crime as a Subset of Harmful Acts

Core offenses

Mala in se

All social harm

Not regulated by criminal law

All harms

All crimes

Mala in se and mala prohibita

crime and criminal law3
Crime and Criminal Law
  • Mala in se: Crimes that are considered bad in of themselves
    • Part I offenses in the UCR are the major mala in se crimes
  • Mala Prohibita: Crimes that are considered crimes because we have placed restrictions on them
    • Listed in Part II of the UCR along with some other less serious mala in se offenses
crime and criminal law4
Crime and Criminal Law

Sources of Criminal Law

  • State and federal constitutions
  • State and federal statutes
  • Common law
    • codified in most states mid-1800s
  • Federal law is growing source of criminal law
  • Statutes define elements (various parts) of a crime more specifically than common law
crime and criminal law5
Crime and Criminal Law

Limitations on the Criminal Law

  • Substantive due process: There are limits to what conduct the law may seek to prohibit
  • Forbids passage of laws that infringe on the rights of individuals
    • free speech
    • assembly
  • Overbreadth doctrine: Laws are unconstitutional when they fail to narrowly define the specific behavior to be restricted
crime and criminal law6
Crime and Criminal Law

Limitations on the Criminal Law (cont.)

  • Void for vagueness: laws are unconstitutional if they fail to clearly define the prohibited act and the punishment in advance
  • Fair notice: letting people know what is and is not permitted
  • Must not restrict due process: laws must be enforced fairly and non-arbitrarily
  • Must not restrict equal protection: laws cannot restrict the rights of members of suspect classifications
crime and criminal law7
Crime and Criminal Law

Limitations on the Criminal Law (cont.)

  • Cruel and unusual punishment: punishments must be proportional to the crime
  • Ex post facto laws: people cannot be penalized for behavior which was not illegal at the time they acted; penalties cannot be increased after the crime has been committed
    • ex post facto laws do apply retroactively if they are beneficial
  • Bills of attainder: laws that impose punishment without trial
crime and criminal law8
Crime and Criminal Law

Elements of Criminal Offenses

  • Elements must be present for criminal liability to attach
  • Actus reus
  • Mens rea
  • Concurrence
  • Causation
  • Harm
  • Make up the corpus delicti
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Crime and Criminal Law

Actus Reus (Criminal Act)

  • The guilty act; three forms:
  • Voluntary bodily movements
  • An omission in the face of a duty to act
    • failure to perform a legal duty
    • failure to prevent serious harm when a special relationship exists
  • Possession
    • if the person has some knowledge that their possession is illegal
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Crime and Criminal Law

Mens Rea (Criminal Intent)

  • Guilty mind; inferred from circumstances surrounding the criminal act
  • Four levels:

1. Purposeful

2. Knowing

3. Reckless

4. Negligent

  • Doctrine of transferred intent
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Crime and Criminal Law


  • The union of the criminal act and the criminal intent (actus reus and mens rea)
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Crime and Criminal Law


  • The criminal act is the act that is the cause of the harm
  • 2 types:

1. Factual cause: “but for” the actor’s conduct the harm would not have occurred

2. Legal cause: consequences of an act which are not reasonably foreseeable to the actor (intervening causes) relieve the actor of some degree of criminal liability

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Crime and Criminal Law


  • The result of the act, the injury to another or to society
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Crime and Criminal Law

Liability Without Fault

  • Strict liability: imposes accountability without proof of criminal intent in situations where society deems it fair to do so
  • Statutory rape
  • Vicarious liability (only civil law) : the imputation of accountability from one person to another
crime and criminal law15
Crime and Criminal Law

Inchoate Crimes

  • Crimes that occur in preparation for an offense
  • Three types:
    • attempt
    • solicitation
    • conspiracy
crime and criminal law16
Crime and Criminal Law

Parties to Crime

  • Doctrine of complicity—where more than one person may be held liable for criminal activity
  • Requires that all criminal elements be present
  • Common law recognizes four parties to a crime:

1. Principles in the first degree

2. Principles in the second degree

3. Accessories before the fact

4. Accessories after the fact

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Crime and Criminal Law

Defenses to Criminal Liability

  • Defense is a response by the defendant which allows them to avoid criminal liability
  • Alibi: defendant asserts that they did not commit the crime
  • Affirmative defenses: defendant admits that they committed the act, but deny criminal liability
  • Shifts both the burden of production and persuasion to the defense (preponderance of the evidence)
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Crime and Criminal Law

Justification Defenses

  • A defense in which the defendant admits they are responsible for the act, but claims that under the circumstances the act was not criminal
  • Self-defense
  • Consent
  • Execution of public duties
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Crime and Criminal Law


  • Use of force to repel an imminent, unprovoked attack, in which they reasonably believed that they were about to be seriously injured
  • May only use as much force as is necessary
  • Retreat doctrine: a person must retreat rather than use deadly force if doing so is possible
  • Castle doctrine: persons attacked in their home need not retreat
  • Can also apply to the defense of others and property
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Crime and Criminal Law


  • Persons may content to suffer what otherwise would be an objectionable injury
  • Consent must be voluntary, knowing, and intelligent
crime and criminal law21
Crime and Criminal Law

Execution of Public Duties

  • Agents of the state are permitted to use reasonable force in the lawful execution of their duties
crime and criminal law22
Crime and Criminal Law

Excuse Defenses

  • One in which the defendant admits that what they did was wrong but that under the circumstances they are not responsible for their improper conduct
    • duress
    • intoxication
    • age
    • insanity
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Crime and Criminal Law


  • Situations involving the threat of serious, imminent harm to oneself, where the act is less serious than the threatened harm
  • Those forced to commit a crime in such circumstances do not act voluntarily
    • eliminates actus reus
    • eliminates mens rea
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Crime and Criminal Law


  • Voluntary and Involuntary
  • Voluntary never leads to acquittal; may only mitigate
  • Involuntary may work as a defense as the person is not responsible for their actions
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Crime and Criminal Law


  • Persons below a certain age lack the capability to form mens rea
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Crime and Criminal Law


  • Impairs mens rea
  • Mental illness and legal insanity are not the same
  • M’Naghten rule—right wrong rule
  • Durham test—product test
  • Irresistible mpulse test
  • Substantial capacity test
  • GBMI- from Insanity Defense Reform Act of 1984
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Crime and Criminal Law

Procedural Defenses

  • It is claimed that the defendant’s due process rights were violated
  • Double jeopardy, denial of speedy trial, use of illegally seized evidence
  • Entrapment in one of two scenarios (Sherman v. U.S. 1958)

1. The crime is the result of the “creative activity” of law enforcement

2. The prosecutor cannot prove beyond a reasonable doubt that the defendant was “independently predisposed” to commit the crime

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Crime and Criminal Law

Categories of Crime

  • Crimes against the person
  • Crimes against property
  • Crimes against society
  • Crimes against morality
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Crime and Criminal Law

Homicide and Manslaughter

  • Homicide means the killing of another human being
    • what is a human being?
    • When is someone alive or dead?
    • What types of homicide deserve punishment?
  • 3 forms of criminal homicide:
    • murder
    • manslaughter
    • negligent homicide
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Crime and Criminal Law


  • Common law: the killing of another person with malice aforethought
  • Model Penal Code: murder is a killing which occurs 1) purposefully, 2) knowingly, or 3) recklessly
  • First-degree murder: deliberate and premeditated
  • Second-degree murder: any killings that are intentional but not premeditated or planned
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Crime and Criminal Law


  • Voluntary
    • an intentional killing which occurs
      • under a mistaken belief that self-defense is needed
      • or in response to adequate persuasion while in the sudden heat of passion
  • Involuntary
    • an unintentional killing occurs as a result of a reckless act
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Crime and Criminal Law

Negligent Homicide

  • An unintentional killing in which the defendant should have known that they were creating a substantial risk of death by their conduct
  • Such conduct deviated from the ordinary level of care owed to others
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Crime and Criminal Law

Felony Murder

  • An individual is held liable for an unintended killing which occurs during the commission of a dangerous felony
  • No requirement of intent to either kill or inflict serious harm
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Crime and Criminal Law

Assaultive Offenses

  • Direct harm to a person inflicted by the actor include:
    • assault and battery
    • robbery
    • sexual offenses
    • child sexual abuse
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Crime and Criminal Law

Assault and Battery

  • Common law:
    • assault: an attempt or a threat to inflict immediate harm
    • battery: an unjustified, offensive physical contact
  • Modern assault and battery:
    • assault and battery have been merged as “assault”
  • Aggravated assault: serious injury or assault with an item
  • Account for 62.5 percent of all UCR Part I violent crimes
crime and criminal law36
Crime and Criminal Law

Sexual Offenses

  • Rape
    • common law: carnal knowledge by a man of a woman who is not his wife, forcibly and without her consent
    • modern day: eliminated marital rape exception, neutralized gender specificity, relaxed resistance requirements, and created rape shield laws during criminal court
  • Child sexual abuse
  • Death penalty cannot be used in rape cases, except in some states where capital punishment for raping children is allowed
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Crime and Criminal Law


  • “Any willful or malicious burning or attempting to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc.” (FBI 2005, 61).
  • First degree: burning of an occupied structure
  • Second degree: burning of an unoccupied structure
  • Third degree: burning of personal property
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Crime and Criminal Law

Crimes Against Property

  • Burglary
  • Trespass
  • Theft
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Crime and Criminal Law


  • “[T]he unlawful entry of a structure to commit a felony or theft” (FBI 2005, 45)
  • Seventeenth century: the breaking and entering of the dwelling of another at night with the intention of committing a felony inside the dwelling
  • Today: burglary can occur during the day
  • Not entry alone -- must be unlawful entry accompanied by intent to commit another crime inside
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Crime and Criminal Law

Theft Offenses

  • Crimes against property (theft) are more common than crimes against the person
  • 88.3 percent of crimes reported to the police were property crimes (2005 UCR)
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Crime and Criminal Law


  • “The unlawful taking, leading, or riding away of the possession or constructive possession of another” (FBI 2005, 49).
  • Larceny is graded depending on method of taking and the value of the property taken
  • Grand theft vs. petty theft (felony and misdemeanor)
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Crime and Criminal Law


  • “The taking or attempted taking of anything of value from the care, custody, or control of a person or persons by force or threat of force or violence and/or putting the victim in fear” (FBI 2005, 31).
  • Often classified as a violent crime
  • Extortion: a taking of property accomplished by the threat of future harm to person, property, or reputation
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Crime and Criminal Law

Crimes Against Public Order and Morality

  • Crimes against public order are those in which the injury is to the peace and order of society
    • disorderly conduct
    • unlawful assembly
    • vagrancy
  • Crimes against morality are those in which the moral health of society is injured
    • adultery
    • prostitution
    • obscenity