Fluent Essays

KIDNAPPED BY A PARENT(1)Summarize the case and the Court’s decision;(2) Parents can be convicted of kidnapping, however, parents are obviously in a different position than strangers who abduct a child. According to the Court in Davila, what must the prosecution show to convict a parent of kidnapping? Do you agree or disagree with the Court’s holding? Instructions* Your paper should be a minimum of 4 full pages in length;* Double-spaced;* 12 point font in Arial, Helvetica, or Times New Roman;* Include a Cover Sheet and a References page;* APA formatted citations within the body of the paper and on the References page. Additional Resources that may help with your assignment...The case can be found here: https://cases.justia.com/florida/supreme-court/sc0...2 Rape shield lawsVirtually every rape shield law permits a defendant to introduce evidence of “specific instances of sexual activity to show the origin of semen” found on the victim or her clothes. When is this section applicable? In State v. Patterson, 291 P.3d 556 (Mont. 2012) the victim had semen stains on the shirt she was wearing on the night of the alleged sexual assault. Tests showed the defendant was not the source. The trial court refused to permit the defendant to cross-examine the victim about the source of the semen, and the Montana Supreme Court agreed. Why? In what situation may a defendant introduce such evidence?Instructions* Your paper should be a minimum of 3 full pages in length;* 1-inch margins;* Double-spaced;* 12 point font in Arial, Helvetica, or Times New Roman;* Include a Cover Sheet and a References page;* APA formatted citations within the body of the paper and on the References page. ch_11_cj421.pdf ch_12_cj421.pdf Unformatted Attachment Preview Chapter 11 Assault, Battery, and Other Crimes Against the Person Assault, Battery, and Other Crimes Against the Person  An assault conviction requires acts intended to cause bodily injury, or instill such fear. Using any weapon to cause fear is an assault  A battery conviction requires intentional infliction of bodily harm or unlawful touching in a rude or offensive manner  An assault or battery becomes aggravated if a deadly weapon is used, or there is an intent to commit a felony  Assault is defined differently in different jurisdictions, but the following types of assault statutes are most common:  Assault is an attempted battery  Assault is an intent to cause apprehension of immediate bodily harm  Assault is an attempted battery, with present ability to commit the battery Elements of Assault     For an offense to constitute assault, the victim must ordinarily be apprehensive of the impending harm or danger. This is not necessary in a battery Attempted Battery: Requires proof of intent to cause physical injury. Intended victim need not be aware of act Intent to Create Apprehension: Does not require proof of actual intent to cause bodily harm, only intent to create fear of such harm. Victim must be aware of assault Present Ability: Only a few states still use this definition suggesting the ability to do harm must be real  Example of Present Ability: A, unknowingly using a broken gun, points it at B intending to shoot B. While A cannot be convicted of Assault because he lacked the present ability to hurt B, he could be charged with the general attempt crime of attempted battery, under which it does not matter that the gun wouldn’t fire Aggravated Assault    Virtually all states have separate statutes identifying aggravated assaults from simple assaults In some states assault is broken down in degrees, with the higher degrees being felonies and including “completed assaults” (battery) that cause serious bodily harm, with the lowest degree being a misdemeanor involving simple assault  In some states, there are separate crimes for assaults with a deadly weapon Assaults become “aggravated” when they:  Are committed with a firearm  Are part of an intent to commit a felony Battery  Virtually any kind of physical contact can constitute a battery, so long as it is done in a manner that is nonconsensual and in a hostile or belligerent manner  Some states make it a battery to touch another “offensively,” even though no bodily injury results  Some states do not require a guilty mind in order to constitute battery  If serious bodily injury results, or if a weapon is used, it is aggravated battery  Sometimes other circumstances, such as the victim being pregnant, make a battery aggravated Defenses  There are common defenses for committing violence (e.g. assault and battery against others) including:  Self-defense: under some circumstances, the violence may be justified  The conduct was necessary and lawful, and to prevent escape, accomplishment of a lawful arrest, or detention  The other party consented within the rules of the sport being played  It was reasonable discipline of a child by a parent, guardian, or a person acting in place of the parent  In an “offensive touching” battery, the touching was accidental or consented to, or necessary under the circumstances Sports and Assault    In some activities, like sports, consent is given to some use of force  Example: A hard tackle in football or a blow to the jaw in boxing would be within the rules of the sport being played. Players in body contact sports consent to such conduct as part of the game. This is commonly referred to as the “voluntary participant” rule But if the conduct is beyond the rules of the game—such as throwing a bat at a player in baseball, or other violence that causes unnecessary injuries—criminal charges are applicable Spectator violence and sometimes parental rage are occasionally a problem at sporting events where criminal charges are brought Discussion Question Sports violence as criminal assault: Duke University article regarding the development of the sports violence as criminal assault in Canadian Courts. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article =2969&context=dlj   Is the doctrine related to sports violence as criminal assault in Canada similar to the United States? Has it developed similarly? Other Physical Contact Without Consent    Pushing, pinching, biting, scratching, touching, kissing, punching, spitting, and tackling could be done in a friendly, joking, or loving manner, OR the contact could be hostile, angry, or belligerent If such contact were intentional (not accidental) and done without permission of the one receiving the action, it could be classified as criminal behavior If it is shown that the conduct provoked or tended to provoke a disturbance or a disorder, the offender could be charged with disorderly conduct Menacing and Mayhem    Menacing Laws, which are typically defined as intentionally placing or attempting to place another in fear of immediate serious physical injury, exist in some states Mayhem and Malicious Disfigurement is the willful infliction of an injury on another so as to cripple or mutilate the person  Some states follow the common law definition of mayhem, which is the unlawful and violent depriving of the victim of full use of any functional member of the body (hand, arms, feet, eyes, legs, and so on) that would make the victim less able to defend himself or herself (dismemberment)  Other states do not include mayhem as a separate crime, but battery or assault statutes make loss of a body part a more serious offense For those states that retain the Mayhem crime, there is commonly a requirement that there be an intent to maim or disfigure  Intent only to inflict bodily harm may not suffice  Criminal negligence will not suffice Hate Crimes    States may enact hate crime laws that enhance and increase penalties for crimes if it is proven that the defendant intentionally selected the victim because of the victim’s race, religion, color, disability, sexual orientation, national origin, or ancestry Element added to many crimes against the person, such as assault or battery, in order to increase penalty Must prove victim’s status was a “substantial” factor in the decision to commit the crime, though not exclusive factor Discussion Question Victor Diego: Brief CBS video talking about the assault of a gay/transgendered man in Hollywood. http://www.huffingtonpost.com/2013/06/03/victor-diegotransgender-hate-crime-_n_3378670.html   Do you agree that offenders should be punished more severely for committing crimes based on a person’s demographic characteristics? If you were a public defender charged with defending the person who committed this crime, what would you use as a defense? Kidnapping  Kidnapping was not a frequently charged crime under old English common law, but became a serious felony in American states  Originally, the common law required transportation (carrying away) to be “out of the country”  American statutes broadened the scope of kidnapping charge by modifying the “asportation” (carrying away) requirement  Most states require that a kidnapping victim be “moved.” Generally, the movement must be substantial, and not just moving a person from one room to another. However, where it is clear the purpose of the action was to constrain the victim against that person’s will, ANY movement of the victim will suffice Asportation and Other Crimes     Where the criminal purpose is kidnapping, movement is rarely a problem today Where other crimes are committed, such as robbery or rape, movement of the victim for purpose of “adding on” a kidnapping charge is more difficult Most courts hold that in order to do so, some movement not merely “incident” to the other crime is necessary  Example: Moving a teller from the front to the back of a bank being robbed is not enough to constitute kidnapping However, if movement increases the risk to the victim, it is enough under most statutes  Example: Moving a rape victim to a place not visible from a road is enough Kidnapping by Confinement    In many jurisdictions confinement of the victim is an alternative to proof of movement in kidnapping Confinement, unless defined otherwise by statute, means held in “place of isolation” where others may not reach the victim  Almost any location can meet this test, including the victim’s residence The confinement must be for a substantial period, but that period can vary based on the danger to the victim during the confinement  Example: Victim held a knifepoint in her bathroom for a few minutes to prevent him/her from responding to a police officer is sufficient Hostage Taking   Because kidnapping typically required a forcible movement of the victim “some distance” or a “substantial distance,” some states created the crime of “taking hostage” to clarify that movement of the victim is not required to prove this offense Hostage Taking does require that a victim be held against his/her will in some fashion, and that the purpose of doing so is to force another to perform some act, like pay a ransom, or allow the criminals to escape Discussion Question   If a man grabs a woman and pulls her out of her car and to the side of the road behind some bushes and rapes her, what charges might a prosecutor bring? What must be proved for a conviction on those charges? False Imprisonment  False Imprisonment is a separate charge from Kidnapping or Hostage Taking. With false imprisonment, the intentional restraint or confinement need only be unlawful:     The defendant must have confined or restrained the liberty or freedom of movement of another Such act must have been intentional and without the consent of the victim The defendant had no lawful authority to confine or restrain the movement of the victim Most of the statutes using this term are interpreted to exclude brief detentions in situations like a suspected shoplifter, or by teachers detaining children Parental Kidnapping    Strangers are not the only ones to kidnap children, parents also take their child without the other parent’s permission. This is known as child snatching, parental kidnapping, child abduction, or child stealing Thousands of children disappear each year as a result of parental kidnapping. Although the offending parent may state that he or she seeks to protect the child’s welfare, other motives for child snatching exist Most states are generally prepared to extradite the offending parent back to the state in which the offense was committed, if he or she can be located Family Violence and Disturbances    The National Institute of Mental Health concludes that physical violence occurs between family members more often than it occurs between other individuals or in any other setting except wars and riots Family members usually include spouses, persons living together, parents and children, or a person with whom a defendant has had a child Almost all states have enacted elder abuse statutes which target not only traditional assaults, but also failures to properly care for a “vulnerable” adult Child Abuse and Neglect      The U.S. Department of Health and Human Services report the U.S. has the worst child abuse/neglect record of any industrialized nation (e.g. five deaths a day) People who inflict such injuries on children may be charged with murder, assault, battery, assault with a dangerous weapon, aggravated battery, and other offenses in the criminal code of the state in which the offense occurred Criminal codes also have child abuse statutes and statutes forbidding the neglect of children. Most states have an active and a passive element:  Active = physically hurting  Passive = failure to care for a child adequately It is also a crime to expose a child to sexually harmful material, involving a child in sexual activities, or contributing to the delinquency of a child Most states have duty to report suspected abuse/neglect laws Violence in the Workplace and in Schools  Assault, Battery, and Other Crimes Against the Person also occur in the workplace and in public schools   The U.S. Department of Justice reports that each year 1 million people become victims of violent crimes while at work Violence also occurs in public schools, and increasingly school shootings are of concern Road Rage: Violent Aggressive Driving     Vehicle traffic-related injuries and deaths are the ninth leading cause of death worldwide Combined with the crime of driving while under the influence of alcohol they are the leading cause of criminal homicide in the United States Vehicle related deaths and injuries are actions where criminal responsibility can be imposed Another crime against the person is known as “Road Rage” and criminal charges can be brought for engaging in such behavior Chapter 12 Sexual Assault, Rape, Prostitution, and Related Sex Crimes Sexual Relations in the United States Today  Sexual relations become a crime in the United States if:  There is a lack of consent  They are conducted with a minor incapable of legal consent  They are conducted with a mentally deficient person or an adult incapable of consenting  They are performed in public  They are performed for profit (prostitution)  They are between a therapist and a patient and in violation of the laws of that state Rape or Sexual Assault  Historically, common law rape was nonconsensual carnal knowledge by force or threat of force  Today, rape can be oral, vaginal, or anal, and by penis, finger, tongue, or foreign object  While many states continue to use the term rape, many also now define rape as a sexual assault, either first or second degree, depending on the presence of aggravating circumstances  Aggravating circumstances include multiple offenders, use of a deadly weapon, causing pregnancy or transmitting sexual disease, or rape of a young child Sex Crimes    The term sex crime includes a broad classification of offenses that range from serious offenses to nuisance offenses and private offenses between consenting adults Non-consensual sex is virtually always a crime. In addition, every state has a “statutory rape” law, under which it is a crime to have sex with a child under a specified age, usually 13-16 years of age Other examples include: Rape, incest, sexual harassment, prostitution, voyeurism, exhibitionism, and child pornography Historical Elements of Rape  Historically, the criminal elements of rape included many procedural and evidentiary rules such as:  Only penetration of the female vagina by the male organ  Only if physical force used  Woman had duty to establish continued, forceful resistance  Absence of prompt complaint was evidence complaint was false  Prior sexual conduct of complainant admissible on consent  Husband could not rape wife  Corroboration needed Modern Elements of Rape  Today, many of the historical elements have been abandoned. Now,  Rape is gender-neutral, and usually includes oral, anal, and genital penetration, sometimes by a foreign object  Many kinds of coercion in addition to physical force yield lack of “consent”  Resistance need only communicate lack of consent, and purely verbal resistance is sufficient  Corroboration is not required in most states  Husband-wife exemption removed  Relaxation of “prompt report” rule  Rape shield laws limit evidence of past sexual conduct of victim Consent  Consent is an issue typically arising in rape cases. Rape is sexual penetration without consent: “Without consent” generally means:  Forced or coerced consent  Victim’s expressed lack of consent  Youth of victim results in inability to consent  Incapacity of victim to give consent (mentally deficient or drugged) Mistake Consent Given      Since state must prove lack of consent, issue of presence or absence of consent is commonly raised In most jurisdictions, all victims need do is voice or show lack of consent (including inability to give consent) at any time so that a reasonable person would know consent is not given The use of force or threats generally negates consent Some jurisdictions still define rape as requiring “force,” as opposed to simple non-consent  Threats of Force: Where force is still part of the rape requirement, threats or fear of force will normally serve as a substitute for actual force In most states an honest mistake of fact about the victim’s consent is a defense, but this is not available for incest or statutory rape Discussion Question    There are a number of defenses a defendant accused of acquaintance rape can use. What impact do these kinds of defenses have on the victim? Should victims of rape be protected from hearing what the defendant claims? What effect might this have on the defendant’s constitutional right to confront his/her accuser? Rape Shield Laws    Most states now have Rape Shield Laws that limit evidence of:  Past sexual behavior of victim  Sexual predisposition of victim (reputation) Laws have been passed in many states to limit the extent to which defense attorneys in a rape case can inquire into the victim’s past sexual life However, evidence may be admitted if it is:  Past sexual relations between the victim and defendant on issue of consent  Evidence of sex with another person, but only to prove defendant was not source of semen found on victim  In many states, evidence of prior false reports of rape is admissible Statutory Rape    Sexual relations with a child under a specified age, usually 16, is a crime even if done with consent Generally not a defense that the defendant reasonably believed the victim was above the statutory age  Some states have a mistake-of-age defense, but typically make the defense depend on some declaration of age by the alleged victim Many states have separate offenses for sexual relations with a child under 12 years of age, generally making the punishment greater Discussion Question Statutory rape laws by state: http://www.cga.ct.gov/2003/olrdata/jud/rpt/2003-r0376.htm    Which states treat statutory rape most harshly? Which are most lenient? Did anything on the website surprise you? Is there anything in the statutes that you disagree with? The Crime of Incest     It is estimated that 60,000 to 100,000 female children are sexually abused annually and that 80\% of sexual abuse is not reported It is believed that incest affects more than 10\% of all American families, with at least 5,000 cases of father-daughter incest yearly The crime of incest may be committed by adults within a family (any family member), but the public concern and prosecution are generally for cases involving children Like statutory rape, the crime does not require a showing that force was used (or threatened) or that the victim did not consent. However, in some states evidence of relation must be provided Discussion Question Website for survivors of incest: http://www.siawso.org/   Is it surprising to you that such a website exists? What information on the website do you think would be most helpful for survivors of incest? H.I.V. and AIDS-Related Crimes   During the AIDS epidemics of the 1980s and 1990s, widespread fear of the spread of this disease led many states to enact c ... Purchase answer to see full attachment