HANDBOOK ON

CRIMINAL LAW EXAMS

Fall 2009

Deborah W. Denno
Arthur A. McGivney Professor of Law
Fordham University School of Law
140 West 62nd Street
New York, NY 10023
Phone: 212.636.6868
Email: ddenno@law.fordham.edu

PART ONE:
CRIMINAL LAW EXAMINATIONS, DISCUSSIONS,
AND SAMPLE STUDENT ANSWERS
Fall 1991 - Fall 1992

TABLE OF CONTENTS
Fall 1991 Criminal Law Exam ............................................................................................ 1
Discussion of Fall 1991 Criminal Law Exam ..................................................................... 7
Student Answer to Fall 1991 Criminal Law Exam ........................................................... 36
Spring 1992 Criminal Law Exam ...................................................................................... 46
Discussion of Spring 1992 Criminal Law Exam ............................................................... 51
Fall 1992 Criminal Law Exam .......................................................................................... 79
Discussion of Fall 1992 Criminal Law Exam ................................................................... 85
Student Answer to Fall 1992 Criminal Law Exam ......................................................... 110

FALL 1991 CRIMINAL LAW EXAM

FORDHAM UNIVERSITY SCHOOL OF LAW

EXAMINATION IN CRIMINAL LAW
THIS EXAMINATION CONSISTS OF 5 PAGES
THIS IS A THREE HOUR EXAMINATION
THIS IS A CLOSED BOOK EXAMINATION
NO MATERIALS MAY BE USED
DIRECTIONS:

DATE: December 10, 1991

EXAM NUMBER:_______
CLASS SECTION:_____
PROFESSOR DENNO

YOU MUST INSERT YOUR IDENTIFICATION NUMBER, YEAR

AND SECTION, AND PROFESSOR'S NAME ON EACH BLUEBOOK
AND ON THE EXAMINATION PAPER ITSELF.

This examination consists of two parts, roughly weighted according to the following
suggested time allocation:
Part I:
Part II:

1.
2.
3.
4.
5.

6.

7.

4 questions (1-4)
4 questions (5-8)

(2 - 2 1/4 hours)
(3/4 hour - 1 hour)

Write your identification number, class section, and Professor's name on each bluebook.
Do not write your name on any bluebook or on the examination paper itself.
Please number each bluebook sequentially. For example, if there are three bluebooks,
number the first 1 of 3, the second 2 of 3, etc.
Read each question carefully before you begin to write. Answer the question according
to the facts presented.
Please write legibly and use every other line. I can only give credit for what I can read.
If you think it is necessary, state assumptions or additional assumptions of fact not
contained in the questions or facts but which you think are appropriate to answer the
questions more fully.
Take special note that for each offense mentioned, I ask that you discuss the possible
outcomes under BOTH the common law AND the Model Penal Code. As a summary of
your analysis, note how the results would be similar or different depending on whether
you were applying the common law or the Model Penal Code.
Good luck!
- CONTINUED ON NEXT PAGE -

PART I.
Santa and Cora Claus throw a big bash to celebrate their marriage at their estate every
year. Although Cora herself does not drink alcohol, she enjoys the fact that nearly everyone
becomes intoxicated drinking her vodka-spiked eggnog that she prepares for such events.
This year the party appeared to be going particularly well. Cora announced how adorable
Santa was with his big pot belly, his four-foot, ten-inch frame, and his red and white suit, and
how the years hadn't changed him. Rudolph chuckled that Cora only thought that way because
her eyesight was so poor. Rudolph added that Santa's girth made it so that he could hardly lift a
package and that for a gift that year he had given Santa a year's subscription to the Hi-Ho Health
Club.
At this point, Huey and Duey, two of Santa's elves, glanced furtively at one another.
Only they knew that Donald Cluck, a former Olympic ski champion, was planning to burglarize
the Claus' home that evening. Santa and Cora maintained a huge storeroom of gifts and Cluck
needed the merchandise to sell so that he could feed his starving family. Although Cluck
maintained his physique and strength, he had depleted his past earnings and had difficulty
finding work.
Acting upon Huey and Duey's advice, Cluck put on a long white beard and dressed in a
suit identical to Santa's so that he could enter the Claus' estate unnoticed by the elves partying
outside. Cluck only hoped that the elves would be so intoxicated that they wouldn't see that his
lean six-foot, four-inch frame differed substantially from Santa's.
The plan worked. As the evening's festivities ended, Cluck entered the grounds of the
estate. Cluck maintained just enough distance from the elves that they simply thought Santa was
wandering outside intoxicated. By the time Cluck reached the Claus' roof, the party finished and
the house was dark and quiet. Quickly, Cluck jumped down the chimney where he was greeted
by Huey and Duey. Although Huey was clearly intoxicated, Duey was alert and sober. Duey
handed Cluck the keys to the storeroom and warned that they had all better work fast to clear out
the merchandise.
Santa soon appeared to investigate the noises made by Cluck's arrival. Still reeling from
the effects of eggnog, Santa's eyes widened when he saw Cluck with Huey and Duey. Infuriated
by the break-in, Santa charged with his fists raised in the air, while Huey and Duey backed away.
Terrified by Santa's anger, Cluck turned to run but by that time Santa had jumped on top of him
and, covering Cluck's face with his beard, wrestled Cluck to the ground. Rolling on top of each
other, Santa and Cluck became one big red and white mass. Neither one was clearly identifiable
from the other.
Huey and Duey had not expected this. They only wanted a cut on the resale value of the
Claus' goods and never thought that Santa would appear. In an effort to aid Santa, whom they
thought would be the underdog in a physical skirmish, Huey and Duey each grabbed a poker
from the fire place and hit the red and white mass, hoping that they were hitting Cluck, although
each realized they could be mistaken.
3

Petrified because Huey and Duey had joined in the fight, Cluck honestly believed that his
life was at stake. Grabbing a broken glass, he cut Santa's wrist. Instantly, Santa stopped
moving. Realizing that Santa might die unless they helped him, but also fearing retaliation by
Cluck, Huey and Duey ran outside.
Cluck now had to act quickly. Huey and Duey were probably going to get help and he
needed somewhere to hide. First he put Santa into a closet so that no one would find him and
therefore disbelieve Huey and Duey's story that Cluck had broken in. Next, Cluck proceeded
upstairs to hide under a bed until he had an opportunity to escape. While walking past the master
bedroom, however, he heard Cora calling Santa. Startled, Cluck realized Cora was mistaking
him for Santa and wanted him to get into bed with her. Cora was insistent that she and Santa
needed to continue celebrating.
Cluck thought that this would be the perfect foil. He would get into bed with Cora who,
obviously at a distance of even just a few feet, could not tell him apart from Santa while he was
still in his Santa suit. Then he would hide under the covers until Cora fell asleep.
Walking to the side of the bed where Cora's back was turned to him, Cluck slipped off his
Santa suit and into bed beside Cora. He lay still. Cora, with her back still turned to him, asked
Santa to hold her. Cluck's mind was racing. If he got too close, Cora would sense the
difference between his physique and Santa's. However, she might get suspicious if he didn't
touch her at all. Lightly, he touched her back with his hand. "Santa, we didn't finish
celebrating," said Cora in a low, deep, voice.
Cluck knew what that meant. In order to avoid suspicion, Cluck would have to engage in
sexual intercourse with Cora although the prospect of having sex with Santa Claus' wife was
totally unappealing to him. Holding Cora tightly so that her back stay turned to him, Cluck
forced himself to have an erection. His penis then penetrated Cora's vagina.
After intercourse, Cora fell asleep instantly, although not for long. Only minutes passed
before Rudolph ran into her bedroom announcing that Santa was en route to the hospital after
having been found beaten and bleeding. Luckily, Santa was still alive. Cora was confused; she
said that Santa was with her in the bed. With nowhere to run and nowhere to hide, Cluck sat up
in bed.
Question 1: Cluck is charged with four offenses:
a. Burglary: "the breaking and entering of the dwelling house of another at night with
the intent to commit a felony therein."
b. Rape: "having sexual intercourse with a woman not one's wife with knowledge that
she did not consent."

c. Attempted homicide. Homicide: "purposely, knowingly, recklessly, or negligently

causing the death of another human being."
d. Conspiracy: "agreeing with another person or persons that they or one or more of
them will engage in conduct that constitutes such crime or an attempt or solicitation to commit
such crime; or agreeing to aid such other person or persons in the planning or commission of
such crime or of an attempt or solicitation to commit such crime."
Analyze the likelihood of whether or not Cluck would be found guilty or innocent of each
of these four offenses under the common law AND under the Model Penal Code. In answering
this question, discuss each offense separately, and then the possible common law and Model
Penal Code outcomes. Are the outcomes under the common law and the Model Penal Code
similar or different? Are there any other offenses (which we studied) for which Cluck could
have been charged under either the common law or the Model Penal Code?
Question 2: What possible defenses under the common law AND the Model Penal Code
may Cluck have for any of the four offenses mentioned in Question 1?
Question 3: Upon examining Santa at the hospital, it is discovered that many of Santa's
debilitating injuries were caused from the blows inflicted by a poker used either by Huey or
Duey, or by both Huey and Duey. Huey and Duey are each charged with the offense "assault
with intent to kill." Analyze the likelihood of whether or not Huey or Duey would be found
guilty or innocent of this offense under both the common law AND the Model Penal Code.
Mention any possible defenses that they may have under the common law AND the Model Penal
Code. Given the facts provided for you in the Part I fact pattern, what other offenses could either
Huey or Duey be guilty of under the common law and the Model Penal Code? What other
possible defenses for these offenses?
Question 4: How would the results of questions 1-3 change, if at all, if Santa had actually
died on the operating table the same day he was discovered by Rudolph? Discuss each question
sequentially. Analyze any other offenses for which Cluck, Huey, or Duey may be charged under
the common law AND the Model Penal Code. What is the likelihood that Cluck, Huey, or Duey
would be found guilty or innocent of these offenses? What possible defenses may they have?

PART II.
In 1991, Nathan Beeman, age 35, achieved celebrity infamy when investigators
discovered brutal method of torture that Beeman had inflicted on hundreds of human beings
irrespective of their gender or ethnic background. It appears that starting at an early age and
continuing up to the time he was discovered, Beeman would invite individuals to his home on
the pretense of showing them his bee collection. Soon after their arrival, however, he would
serve them a drugged beverage that would put them to sleep for about an hour. During their
sleep Beeman would place their heads in a netting containing hundreds of bees that were also
temporarily drugged. Upon wakening, the individuals would be subject to the gradual wakening
of the bees which, with due time, would sting their victims to death. Beeman particularly
enjoyed taking pictures of his victims.
Psychiatric experts were in a quandary attempting to explain Beeman's behavior. They
noted that Beeman had evidenced early childhood disorders that often predicted later bizarre
behaviors, such as setting fires and cruelty to animals. Moreover, Beeman had experienced
major physical and psychological traumas while growing up: severe head injury due to multiple
beatings by his mother and a bitter divorce between his parents.
According to Beeman's defense attorney, however, Beeman cannot control his behavior.
She claims that Beeman's reactions are "automatic" and that Beeman hears "buzzes from the
Bee-god" that tell him what to do. For this reason, Beeman is not legally responsible for his
crimes.
You are assigned to help the defense attorney present her best defense tactics on
Beeman's behalf. She asks for your strategy advice on the following defenses under both the
common law and the Model Penal Code:
Question 5: insanity
Question 6: involuntary act
Question 7: diminished capacity
Question 8: duress
Provide the advantages and disadvantages of all four defenses in light of the facts of this
case. What would be a prosecutor's strongest counter arguments? What is your ultimate
recommendation?

END OF EXAMINATION

DISCUSSION OF FALL 1991 CRIMINAL LAW EXAM

NOTE FROM THE PROFESSOR:

This analysis of the Fall 1991 Criminal Law Exam, and the Spring 1992 Criminal Law Exam
that follows, was developed as a guide to helping you understand how to approach a fact pattern
with a large number of issues. Please note that what follows is an unusually in-depth analysis; it
is not what would be expected of you on an exam. The footnotes are provided for explanatory
purposes and again would not be details that would be required of you on an exam. We will be
reviewing in class how to write a "good" exam based upon the material provided in the exam
discussions. In addition, real student answers to the exams are also provided in this Handbook.
1. DEFENSES
Cluck is charged with 4 offenses:
(1) BURGLARY: "the breaking and entering of the dwelling of another at night with the
intent to commit a felony therein."

When you have a problem involving a statute, the easiest way to begin is by analyzing
the statute. The common law approach is to divide the crime into its elements, which consist of:
(i) act or omission: requires a voluntary act, or an omission where there is a legal duty to
act, which results in some sort of social harm. The actus reus refers to the actor's
conduct.
Here, the actus reus is: "breaking and entering"
(ii) mens rea: refers to the state of mind the actor must possess in order to be guilty of
the crime.
Here, the mens rea is: "intent to commit a felony therein"
(iii) attendant circumstances: refers to certain facts that must exist at the time of the
actor's conduct in order for the actor to be guilty of the crime.
Here, the attendant circumstances are: (1) "dwelling house of another", and (2)
"at night"
(iv) result: certain crimes require a result (e.g., homicide requires death).
Here, there is no result element; you are guilty of burglary even if the felony is
never committed, as long as you entered with the intent to commit a felony therein.
Next you should discuss the different interpretations of the burglary statute under the (a)
common law, and then under the (b) MPC.

(a) Common Law - You should begin by distinguishing between general and specific intent
crimes. A crime is a general intent offense when all that is required is that the actus reus be
committed in a morally blameworthy manner (in more formal language, a crime is a general
intent offense when "the mental state that is provided pertains to the conduct that is the actus reus
of the offense"). A crime is a specific intent offense if its definition requires proof of an
additional mental state, besides the general intent (or moral blame worthiness). Common law
burglary is a specific intent offense because the defendant must have the general intent to
"break and enter the dwelling house at night," with the further specific intent of committing a
felony after he gets inside. An offense that contains both a general intent and a specific intent
(like burglary), is still considered a specific intent offense.
(i) Act: The problem here is that the statute is silent as to which mens rea term modifies
the conduct of entering the dwelling house of another (this is the general intent portion
of the statute). So, the issue here is what mental state of moral blame worthiness must
Cluck have possessed when he broke into and entered the Claus residence? Where there
is no mens rea term, courts will usually infer some sort of general intent to avoid treating
the offense as one of strict liability.
In determining what sort of general intent to infer when you have a silent statute,
different jurisdictions turn to the following factors for guidance:
(1) legislative history - what the legislature intended to accomplish through the
implementation of the statute. For example, it is typical that the higher the
penalty for the crime, the higher the mens rea required for the offense.
(2) statutory construction - how the statute is written and where the mens rea
terms fall in relation to the other crime elements. (See Yermian, infra next
paragraph for an explanation).
(3) judicial discretion - when the judges rule according to their own
predispositions.
(4) assumption of the risk - immoral people assume the risk that there are
consequences for their immoral actions.
(5) morals/social policy - the court enforces its own morals and what it considers
to be acceptable social policy.
(6) the nature of the crime - (i) whether it is a specific or general intent crime,
(ii) whether the moral and legal wrong doctrines apply, and (iii) whether the
punishment fits the crime.
Generally, the easier it is to trace the origins of the statute, the more likely that the crime
will be interpreted to require the mens rea term that was required at common law. Traditionally,
at common law a burglar must intend to break and enter, and so most burglary statutes under the
common law still require this intent. 1 Under the usual common law approach - offense analysis
(discussed infra), the mens rea term "intent" would be applied to the entire statute. However, in
Yermian, the Court held that if the mens rea term is placed between some of the act or conduct
terms (i.e. set-off from the rest of the statute), this may mean that the mens rea term does not
apply to actus reus terms that precede it. As this is the case here, there is a strong argument that
1

For example, 140.20 of the New York Penal Code states that a "person is guilty of burglary when he
knowingly enters or remains unlawfully in a building with the intent to commit a crime therein." (emphasis added).

the intent in the statute only modifies the mens rea element that follows it.
Now use the facts, Cluck's intent to commit the actus reus of the crime can be
established by his dressing up as Santa "so that he could enter the Claus' estate unnoticed by the
elves partying outside." Once Cluck jumped down the chimney, and took the keys from Duey,
the act of the crime was satisfied.
(ii) Mens Rea: The specific intent portion of the burglary statute is the mens rea element
of "intending to commit a felony therein." Therefore, Cluck must have intent to commit
a felony in Claus' home, it is not enough for him to have been reckless or negligent as to
the commission of the felony. If Cluck did not have the intent to commit a felony in
Claus' dwelling (the specific intent portion) he would likely be guilty of the general intent
crime of criminal trespass.
Now use the facts, Cluck's prior planning of the felony, and his Santa Claus
disguise, establish this requisite intent.
(iii) Attendant Circumstances: Usually it is presumed that the intent only modifies the
conduct and result elements of the crime, not the attendant circumstances. Therefore, the
burglar must only be reckless or negligent as to the attendant circumstances of the crime.
The attendant circumstances are "dwelling house of another" and "at night".
Now use the facts, Cluck's disguise and scheme to steal from Santa (" . . .dressed
in a red and white suit identical to Santa's so that he could enter the Claus' estate
unnoticed by the elves. . . ) would make it difficult to argue that he was unaware that
Claus' home was the "dwelling house of another." It would also be difficult for Cluck
to argue that he didn't know it was night because the facts tell us the house was "dark and
quiet."
(b) MPC - The MPC abandons the distinction between specific and general intent crimes.
However, like the common law, when a statute doesn't contain a mens rea term for every
element, the MPC does not assume strict liability (unless it is a violation - see 2.05, or statutory
rape - see 2.13). The MPC eradicates some of the confusion caused by the common law's
multitude of mens rea terms by narrowing the over eighty common law terms to only four (4)
terms: Purpose, knowledge, recklessness, and negligence. 2 2.02 of the Code provides a simpler
approach for dealing with a silent statute. Therefore, under the MPC you need not go through the
six (6) step analysis of the common law, you need only refer to 2.02 of the Code. Within
2.02, the most useful tools for solving silent statute problems are 2.02(3) and 2.02(4).

See MPC 2.02(1).

10

The Following Concepts are Critical to Understanding Statutory Analysis:

2.02(4) (the offense analysis approach) states that unless a contrary purpose
plainly appears, you apply the given mens rea term to all the material elements of the
offense. If we were to apply 2.02(4) here, intent would apply to the entire statute.
2.02(3) (the element analysis approach) is called the fallback provision of the
MPC because it tells us that when you are faced with a silent statute, you may "fall back"
on the mens rea term of reckless or above (i.e. or knowledge or purpose). Because the
MPC doesn't define recklessness for conduct, knowingly or above is applied to conduct
elements. Using 2.02(3) is the better approach here because the mens rea term is in the
middle of the statute indicating that "a contrary purpose" does appear, thereby
establishing that an element analysis is more appropriate than an offense analysis.
Refer to the statutory analysis described infra.
(i) Act: ("breaking and entering") Breaking and entering is considered
conduct, therefore under 2.02(3) of the MPC Cluck would have to knowingly
enter the Claus' home. The MPC defines knowingly as "being aware that his
conduct is of that nature," or "being practically certain that his conduct will cause
such a result."
Now use the facts, Cluck's plan to steal from Santa shows that he was
"aware that his conduct was of that nature." He knew that he was breaking and
entering when he jumped down the chimney.
(ii) Mens Rea: ("intent to commit a felony therein") Intent is usually
equated with "purpose" or "knowledge" under the MPC. This separation permits
the legislature, if it chooses, to make finer moral distinctions than the common
law permits. The legislature can accomplish this by requiring a high standard of
proof of intent through the mental state of "purpose", or the legislature can decide
that common law intent is satisfied by the somewhat lesser standard of
"knowledge." Purpose is defined under the MPC as "conscious objective", while
knowledge is defined as "awareness."
Now use the facts, Cluck's intent to steal from the storeroom of
gifts in Santa's home shows that it was his conscious object to "commit a felony
therein." Since a higher mens rea term will satisfy a lesser mens rea term 3, the
requisite mens rea for burglary is satisfied.

See 2.02(5) of the MPC - knowledge is satisfied by purpose.

11

(iii) Attendant Circumstances: Under the MPC, 2.02(3), reckless or above is

applied to attendant circumstances. Therefore, as long as Cluck was reckless as to
Santa's home being the "dwelling house of another," and "at night," then the
requisite mens rea for the attendant circumstances was established.
Now use the facts, Cluck was at the very least reckless as to the fact that
Claus' residence was "the dwelling house of another" since he planned a scheme
to gain access to the home, and as to the fact that it was "at night," since it was
dark.
Prosecutor's Side: It seems that the prosecutor would have little difficulty proving that Cluck
intended to commit a felony in Claus' dwelling house. Cluck was never invited to the Claus'
Christmas bash, therefore his entry into the Claus' home was unlawful. This unlawful entry,
combined with: the prior planning, Cluck's costume, and the conspiracy with Huey and Duey
("H&D") are all concrete evidence that the prosecutor could use as tools to convict Cluck of
burglary.
Defense Attorney's (Cluck's) Side: In defense of Cluck, Cluck's attorney may argue that he did
not intend to commit a felony, that he was merely dressing up to join the festivities. However,
with all the evidence just described, the defense attorney would have a difficult time negating
Cluck's mens rea for burglary. Cluck's attorney may also argue that since Cluck never actually
entered the storeroom where the goods were located, he never committed the actus reus of the
offense. This argument would likely fail as the crime of burglary does not require that the social
harm (i.e. stealing) actually happen, just that Cluck have the intent to steal (which the facts tell us
he did).
Conclusion: Under the common law the prosecutor would have to prove that Cluck intended
both the act of the crime ("breaking and entering") as well as the mens rea of the crime
("committing a felony therein"), while he would only have to prove that he was reckless or
negligent as to the attendant circumstances ("dwelling house of another," and "at night"). Under
the MPC, the prosecutor would have to prove that Cluck committed the act of the crime
"knowingly," the mens rea of the crime with "purpose" or "knowledge", and the attendant
circumstances "recklessly." In applying the facts to these mens rea terms, Cluck would likely be
guilty of burglary under both the common law and the MPC.

(2) RAPE: "having sexual intercourse with a woman not one's wife with knowledge that she
did not consent"
First, analyze the statute:
(i) act: "having sexual intercourse"
(ii) mens rea: "with knowledge"
(iii) attendant circumstances: "with a woman," "not one's wife," "did not consent"
(iv) result: intercourse.

12

(a) Common Law - Under the common law, rape is a general intent crime 4. Therefore, at
common law the mens rea term was not stated in the definition of the offense, it was enough that
the actor perform the actus reus under morally culpable circumstances.
(i) Act: Absent a given mens rea term, courts have been unclear as to what mens rea term
should be applied to rape. Courts look to: statutory construction, legislative history,
morals, public policy, and the risk the defendant assumed for guidance in the analysis of
a silent statute. Like burglary, the mens rea term of intent is now usually applied to rape.
There is a significant divergence, however, in the case of sexual intercourse with a young
girl. In statutory rape cases courts have often applied standards of strict liability. As
Cora is not a young girl, we know that the court will avoid applying a standard of strict
liability. Additionally, although the mens rea term of knowledge is used in the statute,
Yermian (discussed supra) held that mens rea terms do not apply to actus reus terms and
attendant circumstances that precede them.
Now use the facts, Cluck intentionally entered Cora's bed and while in her bed
continued to deceive her. Cluck was aware that he was "having sexual intercourse" with
Cora since he "forced himself to have an erection" (arguably a "willed muscular
contraction" 5) when he realized "what she meant" (i.e. she wanted to have sex). Further,
Cluck was "holding Cora so tightly so that her back [would] stay turned to his,"
indicating Cluck's desire that his true identity be concealed. The penile penetration of the
vagina completed the act of the offense.
(ii) Mens Rea: The mens rea term of knowledge is provided by the statute to apply to the
victim's non-consent.
Now use the facts, Cluck had knowledge of Cora's non-consent to sexual
intercourse with Cluck, since after he entered her bed, Cora repeatedly called Cluck
"Santa." This indicated that she was deceived as to Cluck's identity. Cluck engaged in
further deception to ensure that his identity was not revealed by only touching Cora
lightly, and holding her "tightly so that she would remain with her back towards him."
(iii) Attendant Circumstances: Usually it is presumed that the intent only modifies the
conduct and result elements of the crime, not the attendant circumstances. Therefore,
Cluck need only have been reckless or negligent as to whether Cora was "a woman" and
"not his wife."
Now use the facts, Cluck was at least reckless towards Cora's gender. It seems
clear that Cluck knew from past relations with the Claus' that Cora was a woman.
However, if he ever had any doubt as to Cora's gender, such doubt should certainly have
been eradicated when Cluck's penis began to penetrate Cora's vagina. Cluck also knew
that Cora was "not his wife," but was Santa's wife, since the party was in celebration of
the Claus' wedding anniversary. Additionally, the facts themselves tell us that Cluck
knew that Cora was Santa's wife (" . . . the prospect of having sex with Santa Claus' wife
was totally unappealing to him") (emphasis added).
The common law
4
5

jurisdictions are split as to whether having sex with a woman, while

See supra for a discussion of the difference between general and specific intent crimes.
A Voluntary Act is defined as a willed muscular contraction or bodily movement.

13

pretending to be her husband, is fraud in the factum or fraud in the inducement. Fraud in the
factum is considered rape under the common law, while fraud in the inducement is not
considered rape under the common law. Here, there are valid arguments for characterizing
Cluck's conduct as both (1) fraud in the factum, and (2) fraud in the inducement.
(1) Fraud in the Factum: the deception relates to a fundamental aspect of the conduct
for which there was consent. Therefore, there is no legally recognized consent because
what happened is not the event for which consent had been given. (For example, a
gynecologist tells a woman he is inserting an instrument to examine her, she consents,
and he inserts his penis.)
Factum Theory as Applied Here: Cora is consenting to an innocent act of
marital intercourse, while what is actually being perpetrated upon her is an act of
adultery.
(2) Fraud in the Inducement: the deception relates not to the thing done, but merely to
some collateral matter. Consent induced by this type of fraud is not rape, but rather a
form of seduction.
Inducement Theory Applied Here: Even though Cluck is not her husband, Cora
believes him to be and consents to exactly what is done (sexual intercourse) and hence
there is no rape.

(b) MPC:
(i) Act: Under the MPC, 2.02(3) & 2.02(4) provide guidance, where the common law
does not, regarding a silent statute. Here, the mens rea term of knowledge falls after the
actus reus term, and therefore 2.02(3)'s element analysis approach is more appropriate
than 2.02(4)'s offense analysis approach. 2.02(3) tells us to apply the mens rea term of
reckless or above to a silent statute, however, since recklessness for conduct is not
defined in the Code, knowingly or above is applied to conduct elements. "Having
sexual intercourse" is a conduct element, therefore knowingly or above (i.e. or purpose)
should be applied here.
Now use the facts, Cluck knew he was having sexual intercourse because he
"forced himself to have an erection," and then penetrated Cora's vagina.
(ii) Mens Rea: The mens rea term of knowledge is supplied by the statute, and modifies
the "consent."
Now use the facts, Cluck was "aware" that Cora was not consenting since he
knew she thought he was Santa.

14

(iii) Attendant Circumstances: Under the MPC 2.02(3), recklessly or above is applied
to attendant circumstances. Therefore, Cluck would have to be reckless, aware, or
purposeful as to Cora being "a woman," and "not his wife."
Now use the facts, Cluck acted recklessly, at the very least, with respect to Cora's
gender, and that she was someone else's wife.
Having sexual intercourse with a woman while deceiving her into believing you are her
husband, is characterized as fraud in the factum under the MPC 213.1 (2) (c). Under the
MPC, fraud in the factum is known as gross sexual imposition, a felony in the third
degree.
Prosecutor's Side: The prosecutor would have little difficulty proving that Cluck intended to
deceive Cora of his identity. However, if the jurisdiction does not characterize deceiving a
woman into believing you are her husband, for the purposes of sexual intercourse, as fraud in the
factum, then the prosecutor will have to prosecute Cluck for a different offense. Under the MPC,
the prosecutor would likely only proceed under a theory of gross sexual imposition, under which
he would have little difficulty getting a conviction.
Defense Attorney's (Cluck's) Side: The defense attorney, in jurisdictions where Cluck's acts
are characterized as fraud in the factum, might argue that Cluck did not possess the mens rea for
rape because he did not want to have sex with Cora, that "the thought was really unappealing to
him." This is a weak argument because the act of intercourse was a voluntary act willed by
Cluck's conduct, and his desire (or lack thereof) to have sex with Cora is irrelevant. In
jurisdictions where Cluck's acts are characterized as fraud in the inducement, the defense
attorney will have little difficulty defending Cluck against a rape charge but will probably have
to be prepared to defend against other sex offenses.
Conclusion: Cluck would only be guilty of rape under the common law if the crime were
committed in a jurisdiction where his actions constituted fraud in the factum. If Cluck were in a
jurisdiction where his actions constituted fraud in the inducement he would likely be guilty of the
crime of seduction, or sexual misconduct. 6 Under the MPC, Cluck would not be guilty of rape,
but of a lesser offense called gross sexual imposition.

See New York Penal Law 130.20 for an example of a sex offense that is not rape.

15

(3) ATTEMPTED HOMICIDE: homicide: "purposely, knowingly, recklessly, or

negligently causing the death of another human being."
First, analyze the statute:
(i) act: "causing the death"
(ii) mens rea: "purposely," "knowingly," "recklessly," or "negligently"
(iii) attendant circumstances: "another human being"
(iv) causation: act actually "caused" the death
(v) result: "death" for homicide, obviously no death for attempted homicide.
(a) Common Law: Attempted homicide is a specific intent crime, the actor must have the
intent for the conduct, plus the further intent that the crime occur (almost like 2 intents.)
An attempt is an inchoate (incomplete) offense, therefore the specific intent portion of all
attempt crimes ensures that in the absence of a result, defendants are not punished for crimes
they didn't specifically intend. Therefore, the actor is required to have a higher level of
culpability for an attempt than is required for the target offense. This seems to make sense since
the social harm (result) has not really occurred.
(i) Act: requires that Cluck purposely, knowingly, recklessly or negligently engage in the
conduct of attempted homicide. Under the common law an attempt requires that a
substantial step in the commission of the crime be taken. In order to define what
constitutes a substantial step, the common law has developed the following tests:
(1) Last Proximate Act (or Eagleton): This is the most extreme of the
tests. It requires that a person do all she believes is necessary to commit the target
offense before she is liable for an attempt (i.e. attempted homicide would not
occur until gun the fired). This test seems too extreme because it would be
impossible to prevent the commission of the crime since the defendant couldn't be
arrested until she actually fired the gun. However, here, Cluck would be guilty
even according to this rigid test because he actually used the deadly weapon (the
broken glass) to stab Santa, thereby committing the last proximate act. This test is
no longer in use.
(2) Indispensable Element: This test requires that the actor have all the tools
necessary to commit the crime before she is liable for attempt. Here, Cluck had
everything he needed (i.e. the broken glass) to kill Santa.
(3) Dangerous Proximity: There are two factors that are used for this test: (i)
temporal and spatial proximity to the completed offense, and (ii) how much
apprehension the particular crime is likely to induce. Here, Cluck was very close
(i) both temporally and spatially to killing Santa, and (ii) murder is a crime which
induces a high degree of apprehension.

16

(4) Physical Proximity: This test requires that the defendant be in close enough
(i) geographical proximity to the place where the crime is to occur, and that he
have the (ii) apparent power to complete the crime immediately. Here, Cluck was
(i) as close as one can get to the locus of the crime, as well as (ii) to the successful
completion of the crime. This is the most popular test in the common law.
(5) Unequivocality (or Res Ipsa): This test asks, would the facts on their own
allow a reasonable person to believe that the actor intended to commit the target
offense? Under this test, Cluck would also likely be guilty because a reasonable
person would probably believe that when someone stabs another person with
broken glass, they are intending to kill or inflict serious bodily harm on that
person. However, Cluck could argue that he did not intend to kill Santa, that he
merely intended to injure him in order to protect himself. This test is rarely used.
(6) Probable Desistance: This test questions whether or not the actor had passed
the point of no return in the commission of the target offense. Here, after Cluck
stabbed Santa with the glass, Cluck most certainly passed the point from which he
could desist.
None of these tests has been universally adopted and it is possible to find multiple tests used
within the same jurisdiction.
(ii) Mens rea: the actor must "purposely", "knowingly", "recklessly", or "negligently"
intend the act (the general intent), and also intend that the target offense occur (the
specific intent.)
Now use the facts, Cluck's intent for his conduct is illustrated by his "grabbing"
("a willed muscular contraction") the glass and cutting Santa's wrist. When Cluck used
the broken glass to cut Santa, it seems to have been his "conscious object" (purpose) to
kill Santa, or at least he "was aware" (knowledge) that his actions were "practically
certain" to cause such a result. Further, Cluck's hiding Santa in the closet, and leaving
him there to bleed, confirms the attempt to cause death, or serious bodily harm.
(iii) Attendant Circumstances: the actor must have been reckless or negligent regarding
the fact that he was causing death or serious bodily injury to "another human being."
Now use the facts, Cluck knew that what he stabbed was Santa (another human
being) since he actually saw Santa charge at him.
(iv) Causation: the conduct must have actually caused the victim's serious bodily injury.
Under the common law the actor must have been the actual "but . . .for" cause of the
injuries, as well as the proximate cause. In order to determine whether the actor was the
actual cause of the social harm, one must ask, but for the actor's voluntary acts, would the
social harm have occurred when it did? If the answer to this question is negative, then
actual cause has been established and one must move on to establishing proximate cause.
The actual cause test selects the potential candidates for proximate cause.

17

Proximate cause is a subset of actual cause. For proximate cause, one must ask
who among the candidates should be held legally responsible for the social harm?
Proximate cause analysis considers whether the actor was the direct cause of the harm, or
whether intervening factors came into play after the actor's conduct.
Now use the facts, Cluck could have been the actual cause of the injury to Santa
because it was when Cluck stabbed Santa that he "stopped moving instantly." Cluck
could also have been the proximate cause because after Cluck stabbed Santa he hid
Santa in the closet. This is an omission where there is a legal duty to act (Cluck created
the harm), and this reinforces that Cluck was the proximate cause of Santa's serious
injuries. Further, in general an actor is the proximate cause of a result if the harm was
intended by the actor. This is called the intended-consequences doctrine. Take note,
however, that H&D could have been significant intervening causes of Santa' injuries.
(b) MPC: Under the MPC, Cluck must have intent for the conduct and intent for the outcome.
The test under the MPC is the substantial step test. In order to be guilty of an attempt the actor
must have taken "a substantial step that is strongly corroborative of her criminal purpose." There
are two steps here, the first one asks if (i) the defendant had the requisite mens rea, and if the
answer to that question is yes, the second question asks (ii) whether or not the defendant took a
"substantial step" towards the commission of the crime (which was strongly corroborative, etc. .
.see MPC 5.01(2).) 7
(i) Act: The difference between the common law and MPC analysis of the act is in the
determination of what constitutes a substantial step towards the commission of a crime.
The common law has developed the various tests discussed supra and the MPC provides
examples of what constitutes a substantial step in 5.01(2) a-g (for example, "lying in
wait" can be considered a substantial step under the MPC.)
(ii) Mens Rea: Under the MPC the actor must one of the four mental states to cause
death: purpose, knowledge, recklessness, or negligence to be guilty of an attempted
homicide. The intent to cause serious bodily injury is not sufficient, and is not included
in the MPC definition of criminal homicide. 8
(iii) Attendant Circumstances: The actor must have been reckless or negligent towards
the fact that Santa was "another human being" (see common law analysis.)

7
8

For examples of what may constitute a criminal attempt under the MPC see 5.01 (2) a-g.
See MPC 210.1.

18

(iv) Causation: The MPC analysis of causation is broader than under the common law.
The MPC requires only an "actual cause - but...for" test (i.e. but for the actor's conduct,
the victim would not have sustained the injuries), and that the conduct was designed to
induce the sort of injury it did, and is "not too remote or accidental in its occurrence to
have a just bearing on the actor's liability." The MPC diverges from the common law in
that it does not require that proximate cause be established.
Now use the facts, Cluck was at least an actual cause of Santa's injuries,
therefore, with respect to the causation factor, Cluck is more likely to be convicted of
attempted homicide under the MPC, than under the common law.
Prosecutor's Side/Defense Attorney's Side: The defense will likely argue that Cluck did not
have the specific intent required for attempted homicide because he didn't intend that Santa die,
he only intended to defend himself from Santa's attack. The prosecution, however, could counter
this argument by saying that Cluck "was aware" (i.e. knowledge) of the risk since he stabbed him
with glass (a dangerous instrument) and thus was "practically certain" that his conduct would
cause death. The statute allows for reckless and negligent causing of death (which would result
in a conviction of a lesser degree than an intentional homicide,) so the defense may argue that
Cluck was not aware that Santa may die, that at most Cluck was reckless. The problem with this
defense is that Cluck hid Santa, who was bleeding and in danger, in the closet after he stabbed
him. Therefore, Cluck's actions constitute an omission where there was a legal duty to act. Cluck
had a legal duty to act because he created the harm.
Conclusion: The only element at issue here was whether Cluck actually intended to kill Santa.
Whether Cluck acted purposely, knowingly, recklessly, or negligently is critical to determining
the severity of the crime for which he will be convicted. It seems that Cluck at least intended to
cause serious bodily injury to Santa, which is sufficient for an attempted murder conviction
under the common law, although it is not sufficient under the MPC.

(4) CONSPIRACY: "agreeing with another person or persons that they or more than one
of them will engage in conduct that constitutes such crime or an attempt or solicitation to
commit such crime; or agreeing to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to commit such crime."
First, analyze the statute:
(i) act: "agreeing"
(ii) mens rea: "a meeting of the minds"
(iii) attendant circumstances: "another person or persons"

19

(a) Common Law: Conspiracy is a specific intent crime. Therefore, the actor must intend to
engage in a conspiracy (general intent portion), and further intend its result (specific intent
portion.) Under the MPC, you must have the purpose for the agreement, as well as the further
purpose to facilitate the crime. To establish the crime of conspiracy you must realize that the
common law elements are different from those of the MPC.
(i) Act ("agreeing"): At common law, the conspiracy is complete as soon as the
agreement is made because no overt act is required.
Now use the facts, there does seem to be an intentional agreement here because
H&D gave Cluck advice on how to disguise himself as Santa so that he could enter the
estate unnoticed.
(ii) Mens Rea: ("meeting of the minds"): Common law requires the meeting of the minds
because a bilateral agreement is necessary to form a conspiracy.
Now use the facts, Cluck's planning of the event with H&D show that there was a
meeting of the minds with respect to the conspiracy to commit burglary.
(iii) Attendant Circumstance: ("another person or persons"): Cluck must have been
at least reckless with respect to the fact that he was conspiring with "another person or
persons" to commit the burglary since the common law requires plurality.
Now use the facts, Cluck was at least reckless regarding the fact that he was
entering into a conspiracy with one or more persons, H&D.

(b) MPC:
(i) Act: the actor must have "purposely" engaged in the conduct under 5.03. When H&D
met Cluck after he successfully burglarized the Claus home (by "breaking and entering"),
and gave Cluck the keys to the storeroom (an overt act), the conspiracy was complete.
H&D also planned to share in the profits after the goods were sold.
Now use the facts, Cluck's conduct illustrates that he purposely conspired with
H&D to steal the Christmas goods from Santa.
(ii) Mens Rea: 5.03, "criminal conspiracy" requires the purpose to facilitate the
commission of the crime, with the further purpose to agree to aid in its commission.
Now use the facts, as long as Cluck had the purpose for the conspiracy he would
be guilty because you only need a unilateral agreement under the MPC. The facts tell us
that Cluck had the purpose to aid H&D in the burglary. However, the conspiracy would
probably merge with the target offense because if Cluck is convicted of burglary he
cannot be convicted of a conspiracy to commit burglary.

20

(iii) Attendant Circumstance: ("another person or persons"): Cluck must have been
at least reckless with respect to the fact that he was conspiring with "another person or
persons" to commit the burglary. Although the MPC does not require plurality, it still
requires that Cluck have the mens rea to conspire with one or more persons, even if those
persons do not have the mens rea to conspire with Cluck.
Now use the facts, Cluck was at least reckless regarding the fact that he was
entering into a conspiracy with one or more persons.
2. DEFENSES
Burglary:
Common Law - Cluck may try to invoke the defense of necessity since he was
unemployed at the time of the burglary and needed money to feed his starving wife and
children. Cluck will claim that it was a choice between two evils (i) the social harm of
committing the crime of burglary, and (ii) the social harm of allowing his wife and
children to starve, and that allowing his wife and children to starve was the greater of the
two evils. There is a strong argument that burglary is not a lesser evil because there are
other ways to feed your family, and Cluck is resorting to illegal activity to compensate
for his unemployment. The court would likely not want to encourage defenses based on
economic necessity.
Another problem with this defense is that under the common law the threat of
starvation must be imminent. The facts do not tell us whether the threat of starvation for
Cluck's family was imminent. The prosecutor will likely (and successfully) argue that
there are many shelters and social services that provide for persons in need, and that this
is therefore not a viable defense to the crime of burglary.
Additionally, the justification defense under the common law requires that the
belief in the harm the actor is trying to avoid be reasonable. Was Cluck reasonable in
believing this was the only option available to feed his family?
If the necessity is the actor's fault, the actor loses the defense of necessity.
Therefore, there is a good argument here that spending his athletic earnings and only
working sporadically is Cluck's fault.

MPC - Under the MPC, the threatened harm doesn't have to be imminent.
The actor's belief is subjectively analyzed, therefore there is common law where
you need an objective belief). This makes it easier for Cluck to argue necessity because
it is at least possible that Cluck believed that burglarizing Santa's home to feed his family
was necessary.

21

However, it must be proven that the evil of starvation is a greater evil than
burglary. This may be difficult for Cluck to prove.
Under the MPC, the fault issue is also not as stringent as the common law.
Under the MPC you can be reckless or negligent as to fault and still invoke the defense of
necessity (however you are obviously precluded from using this defense for reckless and
negligent crimes).
Diminished Capacity:
Cluck may also try the defense of diminished capacity. Cluck will argue that the plight
of his family and the despair he felt in not being able to feed them, drove him to his
criminal conduct. This will probably not be very convincing to a court, although it may
mitigate the sentence.
Cluck may also try the defense of insanity. This would be even more difficult to prove
than diminished capacity. Cluck would have to prove that he had a mental disease or
defect (facts do not indicate that he did), that he did not appreciate the nature and quality
of his acts, and/or that he could not conform his conduct to the requirements of law.
Rape:
Common Law: Cluck will try to argue that this was not a situation involving fraud in the
factum, but rather fraud in the inducement. Cora knew that she was having sex, even if
she did not know she was having sex with Cluck, and not Santa. However, Cluck may
also try to argue that Cora did know it was Cluck as his Olympic size frame should have
felt substantially different from Santa's 4"10 frame with his "pot belly." Cora was not
intoxicated, therefore her judgment would not have been impaired in this respect. 9
Therefore, Cluck could try to argue that Cora knew it was him all along, that she had
been attracted to his Olympic physique for years, and that she was just pretending to be
deceived so as not to be unfaithful to Santa. In short, Cluck would be arguing that Cora
actually consented to the intercourse. This is a weak argument, but credibility is
ultimately a jury question.
Rape is a general intent offense so an unreasonable belief (i.e. Cora was calling for
Santa, not Cluck) in the victim's consent usually does not negate the mens rea. However,
there is a well recognized exception under Regina v. Morgan which held that an
unreasonable belief in the victim's consent was enough to negate the mens rea of the
general intent offense and exculpate the defendant.

Additionally, Cora's poor eyesight wouldn't be an issue here because her back was towards Cluck during
intercourse.

22

MPC: Under the MPC the defense to a rape charge would be successful because having
sex with a woman by deceiving her to believe that you are her husband is not rape but
rather gross sexual imposition.
Additionally, the MPC concentrates on the defendant's state of mind, so if Cluck
could successfully prove that he truly believed (subjective reasonableness) that she was
consenting, he may have a valid argument. However, based on the facts in the instant
case, this is a weak argument.
Attempted Homicide:
Cluck could try to argue that he acted in SELF-DEFENSE.
The requirements for self defense are:
(1) Deadly force:
(a) Common Law: Deadly force may only be used in response to deadly force
(i.e. force that could cause death or serious bodily injury). It is questionable
whether or not Santa's use of physical force amounted to deadly force. However,
Cluck may have believed that H&D's poker stabbing was actually Santa, and the
facts do tell us that "Cluck honestly believed that his life was at stake."
(b) MPC 3.04: Deadly force may not be used unless the force is necessary to
protect against death, serious bodily harm, kidnapping, or sexual intercourse
compelled by force. However, this defense may not be used if the actor provoked
the use of force against him in the same encounter.
Here, although arguably, Cluck was protecting himself against
death or serious bodily harm, he also provoked the use of force against him by
being a burglar in Santa's home. Cluck could try to counter that argument by
claiming that he was running away, and desisting from his criminal activity when
Santa attacked him.
(2) Imminence:
(a) Common law: The threat that the actor is defending against must be
imminent. Here, it is apparent that the threat to Cluck was imminent. Santa had
already jumped on top of Cluck, and H&D were hitting him with a poker.
(b) MPC 3.04(1): The MPC rejects the common law term "imminence" and
requires only that the threat be "immediately necessary on the present
occasion." This is a lower standard then the common law, and it is quite apparent
here that some sort of self defense was "immediately necessary on the present
occasion."

23

(3) Lawfulness (i.e. who was the aggressor?):

(a) Common law: Self-defense requires that the threat be unlawful, and that the
actor not be the aggressor. Cluck could argue that he turned to run and that
Santa jumped on top of him, thereby making the attack unlawful. However,
Cluck's presence in the Claus home was unlawful, and that would establish Cluck
as the aggressor, despite Santa's initiation of the fight. Santa is privileged to
defend his habitation under what is called the "castle" exception.
(b) MPC: The MPC doesn't define the non-deadly aggressor; therefore if Cluck
was using deadly force and Santa wasn't, Cluck would be considered the
aggressor. Under the MPC if the defendant unlawfully starts a non-lethal conflict,
he does not lose the privilege of self-defense if the victim escalates it into a lethal
conflict.
(4) Reasonableness:
(a) Common law: Self-defense requires that the actor's belief in imminent harm
be objectively reasonable. If it was reasonable for Cluck to fear for his life then
he was justified in using deadly force. If it was unreasonable then Cluck may be
entitled to an imperfect self-defense (assuming he subjectively believed he was
facing imminent harm) which would mitigate the charge.
Here, it was probably reasonable for Cluck to fear for his life. Cluck was
being attacked, and potentially suffocated by Santa who was "covering Cluck's
face with his beard," while H & D simultaneously hit him with pokers. This
three-on-one situation would help satisfy the requirement that the threat be
objectively reasonable.
(b) MPC: The actor's belief can either be reasonable or unreasonable; the
determinative factor is Cluck's subjective belief. Therefore, under the MPC this
element would be established since the facts tell us that "Cluck honestly believed
his life was at stake."
(5) Retreat (i.e. is retreat required, and if so, under what circumstances?)
(a) Common law: In most jurisdictions Cluck is not required to retreat because
of the "macho man" doctrine which says that a man is entitled to stand his ground
and defend himself against an aggressor. Further, Santa does not have to retreat
because of the privilege of defense of property and defense of habitation.
(b) MPC: Cluck would have been required to desist from the taking of any
property, or engaging in any unlawful action, before he used deadly force against
Santa. Santa is not required to retreat, unless he was the initial aggressor, because
he was in his home when he noticed Cluck's unlawful presence. Although Santa
started the fight, Cluck is probably the initial aggressor since he was a burglar in
Santa's home.
24

Conspiracy:
Common Law: Under the common law, once the agreement is made the conspiracy is
formed. Since no overt act is even required, it would be very difficult to defend against
a conspiracy charge. The only real defense here would be the plurality rule. Cluck
could argue that H&D did not have the mens rea to agree to the conspiracy. However,
since the facts tell us that they "hoped to get a cut in the resale" this would likely be a
weak argument. Also, jurisdictions are split on whether you can abandon the
conspiracy; therefore Cluck may or may not be able to defend himself on a theory of
renunciation of the conspiracy.
MPC: If Cluck were convicted of other offenses (which he likely would be), the
conspiracy would merge with the other offenses. Therefore, Cluck would have a defense
to the conspiracy charge under the MPC. Under the MPC, the actor can renounce the
conspiracy; however, here the overt act had already occurred, so it would be too late for
Cluck to abandon the conspiracy. Additionally, under the MPC you do not need
plurality (i.e. two or more people with the mens rea for a conspiracy); therefore even if
H&D did not have the requisite mens rea for conspiracy, because Cluck did, Cluck could
still be convicted of conspiracy.

Question 3 - H&D ARE CHARGED WITH ASSAULT WITH INTENT TO KILL

(a) (i) Common law: H&D are charged with the specific intent crime of assault with
intent to kill. The mens rea for the conduct "assault" (general intent portion) is not
specified but assault usually requires intent. The second or specific intent requires the
actors to have further intended that the death actually occur. It is unlikely that H&D
would be guilty under the common law because they did not enter the fight intending to
hurt Santa, but rather to help him because they believed his inferior physique would
cause him to be the underdog. Since they lacked the specific intent to kill, they probably
would not be guilty of this offense (assault with intent to kill), but rather of an assault (a
general intent crime).
(ii) MPC: Under the MPC, H&D would also not be guilty of assault with intent to kill for
the same reasons. The mens rea for the intent to kill is negated because the facts tell us
that H & D wanted to help, not hurt, Santa.
(b) Defenses:
(i) Lack of Mens Rea
(a) Common law: H & D could argue that they did not possess the requisite intent for
the offense. If successful, they would likely be liable for the general intent offense - an
assault.

25

(b) MPC: H&D could argue that they did not have the requisite mens rea for the offense,
however, could be convicted of a simple assault.
(ii) Mistake of Fact
(a) Common law: H & D could argue mistake of fact since they were trying to hit
Cluck, but ended up hitting Santa instead. Under the common law, mistake of fact is a
case-in-chief defense if it negates the mens rea necessary to establish the offense charged.
Mistake of fact seems to negate the mens rea here; however, if H&D were charged with
the general intent crime of assault, they would likely be convicted of that crime. The
reason they would likely be convicted of assault is that for a general intent crime the
mistake must be reasonable. Here, it does not seem reasonable to hit at two people who
cannot be distinguished due to their similar clothing and the rapidity of the events. It is
arguably unreasonable for H&D to truly believe they were only hurting Cluck.
(b) MPC: Under the MPC, mistake of fact would likely not work as a defense because
2.03 states that "when purposely or knowingly causing a particular result is an element
of an offense, the element is not established if the actual result is not within the purpose
or contemplation of the actor, unless, the actual result differs from that designed or
contemplated only in that a different person or different property is injured (emphasis
added)."
However, the prosecutor may argue here that despite the mistake of fact, H&D's intent to
assault Cluck was transferred to their intent to assault Santa. This would probably be a
good argument for an assault, but it would not take care of the problem that H&D were
not intending to kill anyone and could therefore not be guilty of the specific intent
offense of assault with intent to kill.
(iii) Intoxication:
(a) Common law: H could raise the defense of intoxication since the facts tell us he was
"clearly intoxicated." Voluntary intoxication is a case-in-chief defense if it negates the
specific intent portion of the crime. Since H is charged with a specific intent crime, he
could invoke the defense of voluntary intoxication. If successful, he would likely be
guilty of the general intent offense of assault. However, the defense of intoxication
cannot be used in defending against reckless or negligent crimes since voluntary
intoxication is presumably reckless in and of itself. Further, if H could prove that he
didn't know Cora spiked the punch, he would have an even better defense of involuntary
intoxication.

26

(b) MPC: Under the MPC, if it negates the mens rea of a material element of the crime,
voluntary intoxication can be used as a defense (unless it were a crime where only
recklessness or negligence were required, i.e. voluntary intoxication cannot be used as a
defense to reckless or negligent homicide). The defense of involuntary intoxication
would also be available if H didn't know Cora had spiked the punch. The prosecutor
could argue, however, that H should know Cora spikes the punch since she does so every
year at the Christmas bash.
(iv) Defense of Another:
(a) Common law: Both H & D could claim that their assault arose in the defense of
another (Santa), and that they were therefore "stepping into Santa's shoes" when they
began using the poker. Under the common law, they could raise this defense if it were
reasonable. It is debatable whether H&D's perception that Santa would be the underdog
in a physical skirmish was reasonable, especially since Santa was on top of Cluck and
"Santa's girth made it so he could hardly lift a package."
(b) MPC: H&D could invoke the defense of another if they subjectively believed that
the third party (Santa) needed their help. Here, there is a good argument that H&D truly
believed that Santa would be the underdog in a physical skirmish.
(v) Causation not Established
(a) Common law: The common law requires that the actor not only be the actual cause
of the victim's injuries, but that he be the proximate cause as well. H&D could
individually argue that it was the other one that was the proximate cause of Santa's
injuries. They could both argue that the prosecutor was unable to prove "beyond a
reasonable doubt" that it was H and not D (or the converse) that was the direct cause of
Santa's injuries.
(b) MPC: The "but ...for" causation requirement under the MPC is broader than that
under the common law. Therefore, the MPC only requires proof of actual cause. Since
Santa's examination at the hospital indicated that many of his debilitating injuries were
caused from the blows inflicted by a poker, it is clear that H or D, or both, caused the
injuries. In administering the "but. . . for" test, it seems that "but for" H&D both using the
pokers, Santa would not have sustained those injuries. However, there is still an
argument that it cannot be proved conclusively which one of them (H or D) was the
actual cause.

27

(C) Other Offenses H&D Could be Guilty of:

(i) Conspiracy:
(a) Common Law: H&D conspired with Cluck to steal the goods, and since there
is no merger under the common law, the conspiracy would not merge with the
target offense.
(b) MPC: Once there was an overt act (their participation in the burglary), the
conspiracy was established. However, the conspiracy would merge with the
target offense if H&D were guilty of burglary (or larceny or theft.)
(ii) Complicity:
(a) Common law: H&D would be liable for all crimes that were a foreseeable
consequence of the conspiracy. Under common law, accomplice liability is
derived from the principal; therefore the accomplice cannot be convicted unless
the principal is convicted. The burglary was certainly foreseeable, the rape
probably was not, and it is debatable whether an attempted homicide was
foreseeable (it probably was since they were in Santa's house unlawfully and their
discovery was bound to cause anger on Santa's part). Further, under the common
law the actor must aid in fact, not merely attempt to aid, to be established as an
accomplice. Here, H&D aided in fact in the burglary, and possibly in the
attempted homicide, but they did not aid in fact in the rape.
(b) MPC: Once the overt act was established, the same principles would apply as
under the common law. However, an accomplice can be prosecuted regardless of
the principal (the MPC actually abolishes the distinction between principals and
accessories). The liability for complicity under the MPC is greater than under the
common law because you only have to "attempt to aid," as opposed to "aid in
fact" (common law requirement.)
(iii) Omission:
(a) Common law & MPC: Under both the common law and MPC, H&D would
be guilty of an omission for failing to act where they had a legal duty to act for
two possible reasons: (i) they created the risk by participating in injuring Santa,
and (ii) they were Santa's employees, a status that may make them eligible for a
legal duty to act.

28

(d) Defenses to Other Offenses:

(i) Conspiracy:
Both H&D could be charged with conspiring with Cluck to burglarize Santa's
home and steal the goods. Both H&D agreed to the crime (first intent), with the further
intent to effectuate it (second intent.) H could claim that he did not aid in the conspiracy
since D handed the key to Cluck. This may work under the common law (since you must
aid in fact), although H did still plan to share in the resale profits, which substantially
weakens the argument.
It would probably not work under the MPC because the MPC theory of
accomplice liability is broader than the common law's because actors are not only liable
for aiding, but for attempting to aid as well. H may still have the defense of intoxication
to the conspiracy. H&D can argue that when they decided to hit Cluck with the poker in
order to defend Santa, that they were abandoning the conspiracy, and should therefore not
be held liable for Cluck's crimes.
(ii) Complicity:
Under the common law, complicity requires that the defendant intend to assist,
assist in fact, and have the mens rea for the target offense. Theoretically, any crime that
Cluck could be prosecuted for, H&D could be prosecuted for as well because they both
advised Cluck to disguise himself and unlawfully enter the premises. They also agreed to
provide the keys to the storeroom, and they planned to share in the profits from the resale
of the goods. Any crime that was foreseeable in the commission of the conspiracy could
be attributed to H&D because of the Pinkerton doctrine. However, H&D could argue
against liability for Cora's rape and Santa's assault since they may have both been
unforeseeable. Although this is a strong argument for Cora's rape, an assault, in the
commission of a burglary, may not have been unforeseeable. H may try to argue, under
the common law, that he did not "aid in fact" to the attempted theft since it was D who
handed the key to Cluck. However, he did "in fact" aid Cluck in unlawfully burglarizing
the Claus residence (e.g., helping to plan the costume).
Under the MPC, complicity only requires that the actor "attempt to aid" (this is a
broader concept of accomplice liability), and it would be difficult to argue that H&D did
not, at the very least, attempt to aid.

29

Question 4. Change in Result: The legal consequences of Santa's death

Q1: (Cluck Only)
(a) Common law: Cluck would be guilty of felony murder if his or H&D's
blows killed Santa. Cluck would be guilty of felony murder under the agency
theory since the homicide was committed by an accomplice (either Cluck
himself, H, or D, depending on the outcome of the causation issue). However, the
charge of assault with intent to kill would most likely merge with the homicide,
although jurisdictions may differ on this merger issue.
(Q) (2) (Defenses)
Cluck would have no defense to felony murder if found guilty under the common
law because felony murder is a strict liability offense. The mens rea required to prove an
intentional homicide is imputed from the intent to commit the felony. Since the courts do
not like to impose strict liability, however, some jurisdictions have limited the felony
murder doctrine by requiring that the underlying felony be inherently dangerous, or that it
be one of several specified felonies, etc. . . . The crime of burglary would likely be
considered inherently dangerous (breaking into someone else's home is arguably lifethreatening) and would therefore be a suitable predicate to trigger felony murder.
However, Cluck could argue that since he did not bring a dangerous weapon to commit
the crime, that the burglary wasn't inherently dangerous.
If the jurisdiction Cluck were being prosecuted in had adopted the "abstract
approach" to felony murder then burglary would probably be considered an inherently
dangerous crime. However, if they were in a jurisdiction that used the "particular facts
of the case approach," it is possible that Cluck's argument that this burglary wasn't
inherently dangerous would be successful.
Q (1): (b) MPC: The Code abolishes felony murder as a strict liability
offense. However, "if the actor is engaged in, or is an accomplice in the
commission of, or an attempt to commit robbery, rape . . . extreme recklessness
and indifference towards human life is presumed [thereby making the actor guilty
of murder]." (approximate quotation) (See 210.2 (b)).
Therefore, the MPC has not completely abandoned felony murder,
but preserves it in the form of a rebuttable presumption. Although felony murder
is disfavored by many commentators, state legislatures have not followed this
trend. This is indicated by the lack of popularity generated by this provision of
the Code. The only state that has adopted the MPC interpretation of the felony
murder doctrine is New Hampshire. Felony Murder is a wonderful tool for
prosecutors because they do not have to prove the defendant's intent to kill (a
heavy burden); they need only prove he was committing a felony when the death
occurred.

30

(Q) (2) Since felony murder can be rebutted under the MPC, Cluck could argue
that although he was committing burglary when the murder occurred, he never
intended to kill. He could argue that the murder occurred during self-defense, and
as a result of extreme emotional disturbance.
Q(3): (H&D):
Common law: H&D would be guilty of felony murder if it were determined that their
blows killed Santa, and they would be guilty under the agency theory of complicity, if it
were determined that it was Cluck's stabbing that caused Santa's death. Cluck would
claim that H&D's blows were an intervening factor. However, the likely result is that
they would all be guilty of felony murder since all of their actions were sufficient causes
of Santa's death. The assault with intent to kill would merge into the homicide (no
bootstrapping), so it would not be a suitable predicate to trigger the felony murder
doctrine, however, the burglary likely would be. Anything that developed as a result of
Santa's operation (except maybe some bizarre foreign disease) would be foreseeable and
would not break the causal chain.
Causation: The problem of causation is extremely relevant under the common law with
respect to whose blows actually killed Santa. If Santa died due to the assault by H&D,
Cluck could claim that this was an intervening causal factor. It is likely, however, that
they would all be liable since all three actors were sufficient causes of Santa's
hypothetical death. Anything that happened during the course of the operation would
also be foreseeable and not sufficient to break the causal chain.

THE BEEMAN

5. Insanity: insanity is a true defense

Common law:
(i) MNaghten Rule: requires complete cognitive impairment, inability to know
the nature and quality of your acts or to understand their criminality or
wrongfulness. This is the most popular test today.
Here, Beeman could argue that he was unable to know that what
he was doing was criminal or wrong because of the trauma to his head and
subsequent delusions about the Bee-god.

31

(ii) Irresistible Impulse Test: complete inability to control one's acts. An

irresistible and uncontrollable impulse, complete volitional impairment. This test
is not used very often and psychologists usually dislike it because they believe it
to be unreliable.
Here, Beeman could argue that he could not control his behavior,
that his acts were "automatic" and that he was completely controlled by the Beegod.
(iii) Durham Test (overruled by Brawner in 1972): requires only that the
mental disease or defect be the "but . . . for" cause of the crime, therefore any
cognitive or volitional impairment will do.
Under the Durham test, it is very possible that Beeman would be found insane.
(iv) Federal Appreciation Test: requires the inability to appreciate the
nature and quality of your acts, or to understand their wrongfulness, requires
complete cognitive impairment.
This is the strictest test and was created in response to the public
outrage at Hinckley's acquittal, on the basis of insanity, after his assassination
attempt of President Reagan. This is test is immaterial here because it only
applies to federal crimes and Beeman's murders are not federal crimes.

MPC:
(i) 4.01 - Mental Disease or Defect Excluding Responsibility:
The actor must lack substantial capacity to appreciate the criminality of her conduct (substantial
cognitive impairment), and must also lack substantial capacity to conform her conduct to the
requirements of law (substantial volitional impairment). The MPC test combines both the
cognitive and volitional components of the common law.
Under the MPC test Beeman would have the option of either proving the cognitive prong
or the volitional prong. 10 Therefore, there is probably a greater likelihood that Beeman would
be acquitted under the MPC than under the common law.

10

See 4.01 (1): "A person is not responsible for criminal conduct if at the time of such conduct as a
result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of
his conduct or to conform his conduct to the requirements of law (emphasis added).

32

Conclusion:
The Beeman's best chance for winning an insanity defense seems to be under the MPC
because the MPC only requires "substantial" instead of "complete" impairment. Beeman's
bizarre history of setting fires, and cruelty to animals would help support his substantial inability
to appreciate the criminality of his conduct, and to conform his conduct to the requirements of
law. However, the problem with using the MPC test here is that the MPC excludes the
psychopath or sociopath from invoking the defense (i.e. ". . . mental disease or defect do not
include an abnormality manifested only by repeated criminal or otherwise antisocial conduct,"
4.01 (2)). Since there is a good argument that Beeman is in fact a psychopath, the MPC could
prove to be a problematic route for the defense attorney.
6. Involuntary Act: (a case-in-chief defense)
The definitions for involuntary acts are
essentially the same under both the common law and the MPC, and include: unconsciousness or
sleep, reflexes, convulsions, and hypnosis (only under MPC).
It would be difficult to prove that Beeman's actions were the result of an
involuntary act since the facts do not tell us that he was unconscious, asleep, etc. ...
Beeman's crimes included a well-planned series of activities and not merely a single act
over which he had no control. The defense attorney may argue that Beeman was
suffering from automatism, however the facts do not seem to support this (i.e. he took
pictures during the torture). Automatism appears to arise from internal factors, such as
epilepsy, or adverse reaction to medication. If the defense attorney could prove that
Beeman's actions were the result of involuntary acts, this would negate the mens rea for
the murders, an essential element of the crime, and therefore no crime would have been
committed. This means that an involuntary act defense would allow the Beeman a
complete defense, and he would not be committed to a mental hospital as he would under
an insanity defense.
7. Diminished Capacity:
(i) Common law: The courts have varied in their reactions to the diminished capacity
defense. Some courts have accepted the defense in bizarre instances (i.e. Twinkies, PMS,
Halcion), and others have not even permitted the jury to consider diminished capacity.
One of the reasons that courts are so skeptical of the diminished capacity defense is that it
takes the decision out of the hands of the jury and places it in the hands of psychiatrists
and medical "experts."
There are two forms of diminished capacity: (1) the "mens rea" version which
functions as a case-in-chief defense and Beeman would go free, and (2) the partial
responsibility doctrine which may reduce a murder charge to manslaughter. Beeman's
history of head injury, family trauma, and hallucinations may qualify him for this
defense.

33

(ii) MPC: Under the MPC, murder may be reduced to manslaughter if the defendant can
prove that the homicide was a result of "extreme emotional disturbance for which there is
a reasonable explanation or excuse (210..3(1)(b)." This diminished capacity is an
outgrowth of the heat of passion and provocation defense. It is possible that Beeman
could prove he was under extreme emotional disturbance as a result of his head injury
and childhood trauma. The problem, however, is that all these things occurred some time
ago and therefore it may be difficult to prove a causal link between Beeman's childhood
history and his recent killings.
8. Duress: (a true defense)
(i) Common law: requires that the defendant be threatened by another person with (a)
imminent death or serious bodily injury, and (b) that he reasonably believe that he had
no other choice but to commit the acts. Duress cannot be used as a defense to murder in
the common law. Here, there is no evidence of any human threats (the Bee-god does not
count).
(ii) MPC: requires only a threat of unlawful force by another that a person of reasonable
firmness would be unable to resist. Duress can be used as a defense to murder under the
MPC. Here too there is no indication that any person threatened or coerced the Beeman
to commit these murders.
See infra for a more in-depth treatment of the duress defense.
In your recommendation to the defense attorney, your primary objective should be in
helping her keep the defendant off death-row if the crimes occurred in a jurisdiction that has the
death penalty. Since Beeman killed many persons and since his crimes were at least arguably
"heinous" and "atrocious," he would be a prime candidate for the death penalty. The insanity
defense is probably the best route to take because Beeman would have the greatest chance of
avoiding the death penalty. The interesting irony here is that due to the exceptionally heinous
nature of his crimes, Beeman is more likely to win an insanity defense than the average
murderer.
Death Penalty: (this is the sort of thing you would get extra credit for spotting since it is not
explicitly asked), taken from the MPC 210.6:
(a) mitigating circumstances in this case:
(i) his impaired mental conditions may call for leniency
(ii) may be suffering from insanity
(iii) may have been suffering from extreme emotional disturbance

34

(b) aggravating circumstances in this case:

(i) atrocity and heinousness of the crimes, manifesting exceptional depravity.
(ii) the defendant knowingly committed a great risk of death to many persons.
The atrocity of the crimes tells us that the possibility of acquittal for Beeman is minimal.
Therefore, the best option here seems to be the insanity defense because, if successful, it will
allow the defendant to avoid the death penalty. The disadvantage to the insanity defense is, of
course, that Beeman will likely be committed for the rest of his life. However, morally speaking,
a lifetime commitment may be appropriate because it is unlikely that Beeman would be reformed
and he does pose a substantial threat to society.

35

Student Answer to Fall 1991 Criminal Law Exam

(Footnotes refer to Professor Denno's comments).

36

Question One
(a)Burglary
Common law (CL)
Burglary, under the common law, is a specific intent offense. It requires the actus reus of
breaking and of entering plus the further intent to commit a felony therein. The intent is not
specific for the "breaking and entering". The attendant circumstances that are elements of the
offense are the fact that the structure be a dwelling and that it belong to another and that the
offense take place at night.
With respect to these elements, Cluck is most likely required to at least know that these
circumstances exist. Cluck exhibited his intent to break and enter through his planning of the
theft of the goods of Santa. He perhaps did not satisfy the actus reus by jumping down the
chimney, but once he entered the house the prosecution could argue that this was satisfied.
Cluck could argue; however that he had not yet entered the storeroom and therefore, it was not.
Clearly the house was dark (satisfying the night requirement) and was owned by Santa, Cluck
was aware of both these facts. Cluck also had the specific intent to steal (i.e. commit a felony)
the goods from Santa. The prosecution would argue that his motive was irrelevant and that
since the storeroom was in the house, all elements were satisfied. Cluck would argue, if it is
taken that he did not satisfy the breaking part of the offense, that the intent to steal was of the
goods within the storeroom. Cluck could not deny, however, that he intended to permanently
deprive Santa of the goods. It is likely Cluck would be guilty under common law.
MPC
This offense has a mens rea term that appears in the middle of the statute. Under section
2.07 (4) it would seem that it should apply to every element (as enumerated earlier). The more
probable meaning, however, would be to apply section 2.02 (3) standard of recklessness to all the
elements that come before the mens rea term. The court, in Yermian, chose to construct the
statute in that manner, and in this case it makes more sense. Under the MPC, Cluck would have
to disregard a substantial risk that the structure was a dwelling and that it was at night. He would
have to knowingly (i.e. be aware of the nature of his conduct) break and enter and would require
the purpose (i.e. conscious objective) of committing a felony. Cluck was well aware that the
house belonged to Santa and it was night. He was also aware that he was entering without
permission, as shown by his planning. Under the MPC, it is likely Cluck would be found guilty
of burglary since he also entered for the sole purpose of stealing the goods.
(b)Rape
CL
Under the common law, rape is a general intent crime requiring only the mens rea for
the conduct with no further purpose. Courts have been unclear as to what mens rea term will be
applied to rape looking to statutory construction, legislative history, morals, policy, and the risk
the defendant assumed.

37

This statute requires Cluck know that Cora did not consent but is silent as to the actus
reus element of having intercourse and the attendant circumstances of it being a woman not one's
wife. Cluck, under these facts, was well aware that he was having sex with Cora since he realized
when she spoke "he knew what she meant." He was also aware that it was Cora with whom he
was having sex and since the earlier party was a wedding celebration, he knew she was married
to Santa.
Cluck's knowledge as to her lack of consent is displayed by his deception. Fraud in the
factum equals rape under the common law. There is a split in jurisdictions regarding fraud in the
inducement vs. fraud in the factum. Cluck purposely kept Cora's back to him so she would not
be aware that he was not Santa as he knew she was mistaken as to his identity. His penetration
of Cora, despite her apparent awareness of the act, would constitute rape under common law.
MPC
Under the MPC, fraud in the factum is the offense of gross sexual imposition. A man
who has intercourse with a woman knowing that she mistakenly believes him to be her husband
constitutes gross sexual imposition. Here, as stated earlier, Cluck knew that Cora believed he
was Santa, in which case Cluck would be guilty of gross sexual imposition under MPC. 11

(c) Attempted Homicide

CL
Under the common law, an attempt requires a substantial step as defined by several
tests. The decision as to whether Cluck took a substantial step in attempting to kill Santa would
depend on which test was applied. Attempt also requires that, as a specific intent offense, Cluck
have the intent for his conduct plus the further intent that the crime occur. When Cluck grabbed
the glass and cut Santa's wrist, he had both the intent to do so and the intent to inflict either death
or grievous bodily injury (i.e. attempted murder). Cluck might argue, however, that his intent
was not that Santa die, but merely that he be unable to continue the struggle, in which case, if no
death were intended, Cluck would not have the second specific intent for attempted homicide.
The prosecution would note, however, that Cluck's deliberate hiding of Santa, when it
was apparent he might die would constitute attempted murder. With respect to the actus reus
being sufficient.
The courts can apply the last proximate act test, relieving the defendant of liability for
attempt until the final act was done, which the slashing in this case would satisfy; the
indispensable element test, is also satisfied since Cluck was in control of everything; the
dangerous proximity test; the physical proximity test; the unequivocality (res ipsa) test and
the probable desistance test. All of these tests are satisfied by Cluck's act of actually cutting
Santa's wrists and then hiding him. If the court believed that the second specific intent to kill
was satisfied, as it probably would, considering Cluck's actions, he would be guilty.

11

What about the mens rea terms for the other elements?

38

MPC
Under the MPC, you need the intent for the conduct as well as the intent for the outcome
to constitute an attempt. The MPC requires a substantial step that strongly corroborates the
actor's intent to commit the offense. Here, Cluck's actions of slashing then hiding Santa would
be likely to constitute the substantial step and clearly displays Cluck's intent that Santa not be
found, though he was apparently near death. By combining the proximity and unequivocality
tests, it is likely that Cluck would be guilty of some form of attempted homicide. Since the
statute allows even for reckless or negligent causing of death, even if Cluck argued that he was
not aware of the risk that Santa would die, the prosecution would argue that he should have been
aware since the wound was severe and Santa was not moving. In this case, Cluck would be
found guilty.
(d) Conspiracy
CL
Conspiracy, under the common law, requires again the specific intent to agree, plus the
intent that the crime come about. In this case, Cluck was guilty of conspiracy because he had an
implied agreement with Huey and Duey that he would steal the goods from Santa with their help.
Under the common law, there is no overt act required, but nevertheless, Cluck acted on the
advice of Huey and Duey and disguised himself. Under the Pinkerton doctrine, Cluck would
be guilty of all crimes done in furtherance of the conspiracy, however, there is a split in
jurisdictions. Conspiracy does not merge in the common law, in which case Cluck would be
guilty of this as well as any substantive offense. Cluck acted in furtherance of a plan that he and
Huey and Duey had agreed to with the intent that the crime come about. Under the common law,
it is likely that he would be guilty.
MPC
Under the MPC, the conspirator needs the intent to agree as well as the intent to further
the offense. The crime of conspiracy merges with the target offense, however, so if Cluck were
found guilty of the attempted theft of the goods (burglary), then he could not also be convicted of
the conspiracy. If he were not convicted of the target offense, however, Cluck would satisfy the
conspiracy requirements as shown earlier. The overt act requirement would also be satisfied by
the disguise, and the existence of the plan that Huey and Duey would provide keys to the
storehouse. Cluck is likely to be guilty of conspiracy if he is found not guilty of the attempted
theft or substantive burglary.
Question 2
Defenses
Burglary:
Necessity
Cluck could raise the defense of necessity to burglary. He could argue that he was driven
to steal the goods by his need to feed his starving wife and children.

39

CL
Common law requires that the defendant not be at fault in the situation, in which case, the
fact that Cluck was out of work for no apparent reason could possibly deny him this justification.
The harm avoided must also outweigh the harm of the offense committed. Cluck could argue
that the loss of goods as mere gifts is minimal compared to the starvation of his family.
MPC
Under the MPC, there are the same requirements; however, if the defendant was reckless
or negligent as to his need to commit the crime, he loses the defense. It could be argued that
Cluck should have been aware that if he didn't work, his family would starve, in which case, the
theft would not be justified. Though there is no imminence requirement under the MPC, the
defendant must believe his actions are necessary to avoid the harm, and the belief must be
reasonable from his point of view. It is unlikely that Cluck could see no other way out of his
situation and the threat of starvation would clearly not meet the imminence requirement under
the common law.
Diminished Capacity
Cluck could also try to raise a diminished capacity defense which is not likely to work.
Even if Cluck could show he was driven to his acts by despair, many common law courts do not
accept this defense and some only to a specific intent crime, in which case he would be guilty of
a lesser included general intent offense. There is also no evidence here of despair. Cluck
probably has no defense to the rape since he acted with clear understanding as to the
circumstances, and there was no mistake as to Cora's identity.
Self Defense
CL
Cluck could raise the justification of self defense to the charge of attempted homicide.
Under the common law, the defense requires that deadly force (such as stabbing with glass) only
be used in response to deadly force.
The threat must be imminent and unlawful and Cluck could not have been the aggressor.
Cluck would argue that he had turned to run but Santa jumped on him and he had no choice,
especially when Huey and Duey entered with weapons (pokers), but to retaliate with deadly
force. He honestly believed in the threat, and the only issue is reasonableness. If it was
reasonable for Cluck to fear for his life (as he would argue given three people were fighting with
him) then he is justified. If his fear was unreasonable due to Santa's small size and Huey and
Duey's small size as elves and with his frame and athletic ability in mind, then he may be entitled
to an imperfect self defense reducing the charge. Under common law, Cluck is probably not
required to retreat.
MPC
Under the MPC, Cluck's belief in his need to use deadly force is subjective and it can be
reasonable or unreasonable, and the threat must be one he believes is immediately necessary to
protect against in the situation. Cluck's arguments as to the use of pokers and the three against
one situation would satisfy this. He does not lose his justification since it was Santa who
charged at him first. This would be true under the common law as well. Cluck's concern should
have been his recklessness towards innocents; however, this was not an issue. Since deadly
40

force is justifiable in the face of serious bodily injury, he may have a defense to attempted
homicide. Cluck could at least argue the use of force by Santa was unreasonable. The
prosecution, however, would contend that Santa's initial force was not disproportionate in light
of the fact that there was a burglar in his house. In this case, Cluck could be considered, in the
common law, to be the aggressor since his presence was unlawful. 12
Question 3
Huey and Duey are charged with a specific intent crime, requiring the intent to assault as
well as the intent to kill. 13 It is unlikely that they would be guilty under the common law
because they did not enter the fight intending to hurt Santa, but rather to help him because he
would be the underdog. The lack of this specific intent to kill would mean they would not be
guilty of this offense.
MPC
Under the MPC, Huey and Duey would also not be guilty of assault with intent to kill for
the same reasons. The mens rea for that element is negated because under these facts the two
wanted to help Santa.
Defenses to Assault with Intent to Kill
Mistake of Fact
Huey and Duey would argue the lack of their intent. They could also argue mistake of
fact since they were trying to hit Cluck but ended up hitting Santa instead. Under common law
mistake of fact is a proxy defense to a specific intent crime if it negates the mens rea, which it
would in this case. The mistake must be reasonable, however, for a general intent crime. Since
it was not reasonable to hit at two people that couldn't be distinguished (due to clothing) while
only intending to hit one, Huey and Duey could be guilty of assault (general intent).
Intoxication
Huey could also raise the defense of intoxication since he was "clearly intoxicated."
Voluntary intoxication is a defense if it can be shown to negate the specific intent of the crime.
This is also true under the MPC, which requires that the mens rea of a material element be
negated. Since he is charged with a specific intent offense, Huey could possibly raise this
defense. If he could show that he didn't know Cora spiked the punch, he might have a better
claim of involuntary intoxication.

12
13

Are there any possible defenses to conspiracy?

The intent element for assault is not specified.

41

Defense of Another
Both Huey and Duey could claim their assault arose in their defense of another (Santa).
They could raise this defense if it were reasonable under the common law, and if they believed it
according to the facts under the MPC. However, the fact that their attack was meant for Cluck
but injured Santa instead would not relieve them of liability since they were both the actual "butfor" cause of his injuries and the proximate or direct cause (they hit him with no intervening
factors). Under the MPC, which is even broader as to liability under causation, they could be
guilty of his injuries because they were intended for another person. The result was not in any
way remote or accidental. Therefore, if Huey and Duey were found to have the necessary mens
rea for assault with intent to kill, it is unlikely that they could successfully claim a problem with
causation.
Other Offenses Huey and Duey Could be Guilty of:
Conspiracy
Both could be charged with conspiracy with Cluck to steal the goods. They agreed to
the crime with the intent to effectuate it. Under common law, this would not merge, but under
the MPC, once the attempt was made, Huey and Duey would also become accomplices to the
crimes of Cluck.
Complicity
CL
Under the common law complicity requires the defendant intend to assist, assist in fact,
and have the mens rea for the crime. Any crime for which Cluck could be prosecuted and
convicted would be attributable to Huey and Duey because they both advised Cluck to disguise
himself and agreed to provide the keys. Any foreseeable crime that Cluck committed in the
course of his actions would go directly to Huey and Duey. The Pinkerton doctrine would extend
this back to the conspiracy and make Huey and Duey liable for anything done that was
foreseeable in furtherance of the initial conspiracy.
Huey and Duey would argue against liability for the rape of Cora as well as for the
assault on Santa, however. They would likely be successful as to Cora since it was totally an
unforeseeable turn of events, but it could be argued that it was foreseeable that Santa would find
them. Huey could also argue that under common law standards he did not aid in fact the
attempted theft, since, though Duey handed the key to Cluck; Huey, in fact, did not. Duey would
have no such defense.
MPC
Under MPC standards, however, both attempted to aid, and this being a broader concept
of accomplice liability, would be enough to convict Huey and Duey for anything foreseeable in
the course of the crime. Once again, both would argue that the incident with Cora and the fact
that a potentially deadly struggle took place with Santa were unforeseeable. Since both planned
for the crime to be effectuated (i.e. to get a cut on the resale) they both have the requisite mens
rea for accomplice liability. Once again, Huey may have the defense of intoxication. However,
his complicity has probably been established, in which case he is liable for acts in furtherance of
the crime regardless. 14
14

Omission: failing to help Santa.

42

Question 4
If Santa had died (referring to Question 1)
CL
Felony murder
To be guilty of felony murder under the common law, the underlying crime must be
proven and then any death caused in the course of the commission of that crime is one of strict
liability. The court is likely to find burglary (assuming that all three were found guilty) to be a
crime that satisfies as a suitable predicate to trigger felony murder. Since the courts don't like to
impose strict liability, they often require that the underlying felony be inherently dangerous, as
burglary is, due to its specific intent portion, and that it not merge with the homicide because it
was life threatening in and of itself. Also, due to the agency theory, all three would be liable for
Santa's death since the killing was committed by an accomplice.
Cluck would probably be guilty of felony murder as an accomplice to Huey and Duey if
their blows killed him, or based on his own actions if the stabbing killed Santa.
Huey and Duey would be guilty as accomplices to felony murder if Cluck killed Santa. If
their own blows killed him, however, the crime of assault with intent to kill would not be
sufficient as a suitable predicate because it would merge due to its intent to cause severe injury.
However, using burglary as the underlying felony, Huey and Duey could be guilty of felony
murder as long as it was not their blows that caused death.
MPC
The MPC abolishes felony murder but presumes extreme recklessness if a victim dies
during the commission or attempted (as may be the case) commission of burglary. This
recklessness goes to both the principal and any accomplice and would make all three probably
liable. However, this presumption is rebuttable, so Huey and Duey could show that they couldn't
have expected Cluck to slash Santa. Cluck could also introduce evidence that he didn't slash
until Huey and Duey entered the fray with pokers and it was their actions which resulted in
Santa's death. Nevertheless, attempted or successful burglary is sufficient to get this issue to the
jury. Cluck would have no defense if found guilty under common law of felony murder (see
question 2) since it is a strict liability offense. Under MPC, as I have said it is a rebuttable
presumption and Cluck could argue unforeseeability. I have discussed Huey and Duey's
problem with the merger doctrine under common law (see question 3) and they could not be
found guilty of felony murder since the underlying assault with intent to kill can not be
bootstrapped. This is comparable to the court not charging felony murder to parents who beat
their children intending to kill.
The problem of causation is relevant in common law with respect to whose blows
actually killed Santa. This has been discussed earlier in this question, but, assuming that
question three is fact, and Santa dies due to the assault by Huey and Duey, Cluck could claim
that this was an intervening causal factor. It is likely, however, that all would be liable since
both were sufficient causes of Santa's ultimate death. Anything that happened during the
commission of the crime would also be foreseeable and not be sufficient to break the causal
chain.

43

Part II- Question Five

Insanity
CL
Common Law requires complete impairment, under M'Naghten, of ability to know the
nature of your acts or understand their criminality. Sometimes courts add the irresistible
impulse test which requires complete inability to control one's acts. Here, the defendant could
argue that he was unable to know that what he was doing was wrong or criminal based on his
head trauma and subsequent delusions as to the "Bee God". If he cannot control his behavior, he
would satisfy the irresistible impulse test, but this seems unlikely despite his attorney's
arguments that his acts were "automatic". His best argument, since he doesn't do this to
everyone and could clearly control his impulses over the course of 25 years, is for complete
cognitive impairment.
MPC
He has a better defense under the MPC, which requires only substantial lack of capacity
to appreciate the criminality or conform his acts to the law. Since he has done this to hundreds
of people (but not to everyone) he could probably show a substantial lack of capacity to do either
thing. This test does not require that he not know the nature of his conduct, merely that he not
appreciate its criminality. Since he had a history of other acts, (fires, cruelty to animals) this
would go to support his substantial (not complete) inability to conform or appreciate the
wrongfulness. The MPC requires however, that this defect not be manifested only in repeat
behavior so defendant may have difficulty asserting this defense unless there is testimony as to
his delusions and other evidence of mental defect.
The Durham/Product test has been overruled and since this does not (as it is not
indicated in the facts) qualify as a federal crime, this test, which is a more stringent M'Naghten,
would not apply.
Question 6
Involuntary Act
The common law and the MPC require that the crime be the result of a voluntary act.
Involuntary acts include hypnosis (only under MPC), sleep, reflex, and convulsions. It is not
likely that the defendant has a good involuntary act defense since the facts do not indicate any of
these conditions. His crimes included a well planned series of activities, rather than a single act
over which he had little control. It would be hard to prove his acts were "automatic."
Question 7
Diminished Capacity
Courts have varied on their acceptance of this defense though it seems that due to
trauma, the divorce, and his delusions could all combine to not qualify him for insanity but to
reduce the crime. This defense often goes to the extreme emotional disturbance (EED)
requirement for manslaughter, and if the defendant could cite the appropriate reasons (divorce,
etc.), he may be guilty of a lesser degree of homicide. He could claim that the killings arose

44

from an extreme emotional disturbance. 15

Question 8
Duress
CL
Common law requires that the defendant be threatened by another person with imminent
death or serious bodily injury and that he believed reasonably that he had no choice but to
commit the acts. There is no evidence of any human threat in the facts, and it seems that the
defendant would lure the victims and intoxicate them. There is no mention that his subsequent
killing of them was in response to any threat.
MPC
The MPC requires only a threat of unlawful force by another that a person of reasonable
firmness would have been unable to resist. Here too, there is no indication that any victim
threatened or that anyone else coerced Beeman to commit the crimes. If convicted, this defendant
may not be eligible for the death penalty under MPC due to his mental conditions which would
call for leniency. Death is barred upon showing that a defendant's mental condition was a factor.
A mitigating circumstance also exists in that he probably suffered from a mental defect.
However, if no evidence of any mental defect or diminished capacity or duress is found, then the
defendant may be death eligible due to the atrocity of the crimes, and the multiple victims (great
risk to many). One may argue that the victims were somewhat responsible due to their going
back to his house, but his deliberate intoxication of them would negate this as a mitigating factor.

15

Section 4.02 on negating the mens rea entirely.

45

SPRING 1992 CRIMINAL LAW EXAM

46

FORDHAM UNIVERSITY SCHOOL OF LAW

EXAMINATION IN CRIMINAL LAW
THIS EXAMINATION CONSISTS OF 4 PAGES
THIS IS A THREE HOUR EXAMINATION
THIS IS A CLOSED BOOK EXAMINATION
NO MATERIALS MAY BE USED

DIRECTIONS:

DATE: May 7, 1992

EXAM NUMBER:
CLASS SECTION:
PROFESSOR DENNO

YOU MUST INSERT YOUR IDENTIFICATION NUMBER, YEAR

AND SECTION, AND PROFESSOR'S NAME ON EACH BLUEBOOK
AND ON THE EXAMINATION PAPER ITSELF.

This examination consists of two parts, roughly weighted according to the following
suggested time allocation:
Part I: 4 questions
Part II: 3 questions

(2 hours)
(1 hour )

1.
Write your identification number, class section, and Professor's name on each bluebook.
Do not write your name on any bluebook or on the examination paper itself.
2.
Please number each bluebook sequentially. For example, if there are three bluebooks,
number the first 1 of 3, the second 2 of 3, etc.
3.
Read each question carefully before you begin to write. Answer the question according
to the facts presented.
4.
Please write legibly and use every other line. I can only give you credit for what I can
read.
5.
If you think it is necessary, state assumptions or additional assumptions of fact not
contained in the questions or facts but which you think are appropriate to answer the questions
more fully.
6.
Take special note that for each offense mentioned, I ask that you discuss the possible
outcomes under BOTH the common law AND the Model Penal Code. As a summary of your
analysis, note how the results would be similar or different depending on whether you were
applying the common law or the Model Penal Code.
7.
Good luck!
- CONTINUED ON NEXT PAGE -

47

PART I.
Dirk and Jeremy, two friends, met Sheila one Saturday night at the "Bare-Hug Bar &
Grill" in the East Side of New York City. The bar was infamous as a focal point for sex and
drugs and residents complained bitterly about the morally corrupt patrons that the Bar attracted
on weekend evenings. Sheila, a regular patron at the Bare-Hug, was a stunning long-legged,
long-maned brunette who typically flirted with all the men in the bar.
This Saturday night, Sheila extensively flirted with Dirk and Jeremy. Dirk rubbed
Sheila's back and arm while they talked. Jeremy ran his hands down Sheilas tight, low-cut, mini
dress after Sheila asked him to adjust the straps to the dress. Throughout all these actions, Sheila
giggled and appeared receptive to the mens physical contact. After talking and laughing for
some time, Sheila commented to Dirk and Jeremy that Sheila had to run to the "little girl's
room," and would be back soon. While sliding off the bar stool, Sheila winked at them both and
proceeded to go up the stairs to where the bathrooms were located.
After commenting to Jeremy that he was in love, Dirk followed Sheila upstairs to the
bathrooms. While upstairs, Dirk glanced around. The hallway with the two bathrooms was very
dark and no one else appeared to be around. Without hesitating, he entered the women's room,
where Sheila was at the sink applying makeup. Dirk told Sheila, If you keep quiet and do as I
say, I wont hurt you. Looking distressed, Sheila remained quiet as Dirk pushed Sheila faceforward against the wall. Unzipping his pants and removing Sheila's underwear, Dirk anally
penetrated Sheila with his penis while Sheila sobbed.
Jeremy soon entered into the bathroom. He mockingly pushed Dirk aside. Stating that
he would show Dirk the proper way to romance, Jeremy forced Sheila to perform oral sex on
him. After a few moments Jeremy stated his intention to have vaginal intercourse with Sheila.
Instructing Dirk to hold Sheilas arms to prevent a struggle, Jeremy lifted the front of Sheila's
skirt.
After lifting Sheilas skirt, however, Jeremy and Dirk discovered that Sheila was really a
man. Jeremy started to mock Dirk for doing a man. Looking at Sheila, Dirk became enraged
and started to scream. Dirk accused Sheila of purposely tricking him. Perspiration started to
cover Dirk's contorted face as his rage only heightened. Jeremy became frightened and
attempted to quiet Dirk. Not only was Jeremy concerned that others may hear, but he was also
quickly recounting Dirk's past history of violent and bizarre behavior. He was well aware that
Dirk could become angry at the most minor of incidents, and he wanted to do everything
possible to calm him down.
Jeremy, however, was unsuccessful. Bob the bartender had come into the bathroom to
investigate the noise. Revealing a knife from his pocket and grabbing Bob, Dirk pushed Bob
toward Sheila. Kill Sheila, or Ill kill you, Dirk said to Bob. Jeremy yelled at Dirk that he was
acting crazy and pleaded with him to stop. Dirk, however, was unfazed. Turning once again to
Bob, Dirk threatened to kill him if he did not kill Sheila.
48

Sobbing, Sheila begged for his life, but Bob could tell that Dirk was serious. Taking the
knife, Bob went toward Sheila whose arms were pinned down by Dirk. Jeremy begged Bob not
to kill Sheila. While replying that he was scared of Dirk, Bob lunged forward and stabbed Sheila
in the throat. Sheila slumped over. Bob turned to Dirk, dropped the knife, and ran out of the
bathroom. While Dirk laughed, Dirk bent down to Sheila's body while Jeremy ran out of the
bathroom.
Minutes after the stabbing, Jeremy called the police to tell them what had happened so
that Sheila's life could possibly be saved. When the police arrived at the Bare-Hug Bar, they
found Dirk in a manic state with Sheila's blood on his hands. Sheila was dead, apparently having
died instantly from a very deep stab wound. When the police arrived at Bob's home they found
him partying with friends and hatefully jeering at the scenes in a movie entitled "Tootsie," that
everyone at the party was watching on Bob's v.c.r.. In "Tootsie" a man pretends that he is a
woman in order to get an acting job. Upon questioning, Bob said that he had not reported the
Bare-Hug Bar incident to anyone. Bob was in a cheerful and happy mood when questioned by
the police.
Question 1: Dirk, Jeremy, and Bob are each charged with one or more of the following
offenses under the common law:
a. Rape: intentionally having sexual intercourse with a woman not one's wife with
knowledge that she did not consent.
b. Murder: killing of a human being by another human being with malice aforethought.
This killing may be deliberate and premeditated.
Analyze the likelihood of whether or not Dirk, Jeremy, or Bob would be found guilty or
innocent of each of these two offenses under the common law AND under the Model Penal
Code. In answering this question, discuss each offense separately for each of the defendants, and
then the possible common law and Model Penal Code outcomes. Are the outcomes under the
common law and the Model Penal Code similar or different?
Question 2: Are there any other offenses (which we studied) for which any of the three
defendants could have been charged under the common law or the Model Penal Code?
Question 3: What possible defenses under the common law AND the Model Penal Code
may any of the three defendants have for either of the two offenses mentioned in Question 1?
Are these possible defenses under the common law and the Model Penal Code similar or
different?
Question 4: How would the results of Questions 1-3 change, if at all, if Sheila had never
actually died but instead suffered serious injuries. Discuss each question sequentially. Analyze
any other offenses for which Dirk, Jeremy, and Bob may be charged under the common law or
the Model Penal Code.

49

PART II.
Three months ago Sera Isa came to the United States after being granted political asylum
from Watousi, an underdeveloped nation notorious for its persecution of political dissidents.
Although Isa was at one time a member of the Watousi elite, her knowledge of English and
American ways was minimal. Still, proud of her newly-earned American citizenship, Isa was
determined to work hard and apply her intelligence toward a skill that could support her husband
and two children. Toward this goal, Isa learned how to drive so that she could attend job
interviews in her home state of California.
On the morning of May 7, 1992, Isa left her home early so that she could take her threeyear-old child, Mia, to the nursery before her interview. En route to the nursery, however, a car
swerved in front of Isa forcing her to halt immediately. Although Isa was not hurt, Mia, who had
been standing on the seat beside Isa, was thrown forward through the windshield.
Isa was hysterical, then frightened by the result of the accident. She thought if anyone
saw Mia hurt, she and her family would be forced to leave the country. Desperate, she put the
injured and unconscious Mia back on the seat beside her and drove home so that she could apply
some "hela" to Mia. "Hela" is an herbal medicine known for its curative effect in Watousi.
Unfortunately, Mia died two days later. The coroner said that had Mia been taken to a
hospital within three hours of the accident, it was very likely that her life could have been saved.
Question 5: Isa is charged with the common law crime, "failing to use a seatbelt for a
minor (under age 10) child, with the intent of depriving that minor child of safety." This crime,
which has a penalty of six months jail time and a fine of $ 500.00, was the result of a "Minor
Child Seatbelt law" that went into effect on April 7, 1992, exactly one month before Isa's
accident and two months after her arrival in the United States. Isa claims that she could not
possibly have learned about the law in so little time and that she was never told about the law
when she was learning to drive or when she was taking her driver's exam. She also claims that
the law was not widely made known to the public (a problem that was later recognized by the
California state legislature) and that, regardless, her relatively inadequate English skills prevent
her from learning about such laws as quickly as others. What is the likelihood that Isa will be
found guilty of the crime resulting from the Minor Child Seatbelt law under either a common law
or a Model Penal Code analysis?

Question 6: Would it make any difference if Isa was aware of the Minor Child Seatbelt
law but did not think that the law would go into effect until April 7, 1993?
Question 7: What is the likelihood that Isa will be found guilty of involuntary
manslaughter under either a common law or a Model Penal Code analysis?
- END OF EXAM 50

DISCUSSION OF SPRING 1992 CRIMINAL LAW EXAM

51

This exam can be analyzed as follows:

PART I
1. DIRK - RAPE
Dirk's liability for rape, if any, is premised on two important issues:
First, sexual intercourse must be defined. Most jurisdictions define sexual intercourse
as penile penetration of the vagina; 16 few jurisdictions include anal and oral intercourse
in their definition of rape. If Dirk was being prosecuted in a jurisdiction where anal and
oral intercourse were not considered rape (the majority view), he could not be convicted
of rape (despite the severity of his conduct) because his actions did not fall within the
statutory requirements. However, Dirk could possibly be convicted of an attempted rape,
or alternatively, he could be convicted of some sort of deviate sexual conduct.
Second, most rape statutes are not gender neutral, and are defined as man to
woman. 17 Therefore, it may be legally impossible to convict Dirk of rape because one of
the attendant circumstances (i.e. "with a woman") does not exist. The absence of this
attendant circumstance could result in Dirk being guilty of attempted rape instead of the
substantive offense. However, the defense of impossibility which is discussed infra may
acquit Dirk entirely.
The underlying theme of this question is the irony that one's culpability for a
particular crime can be based on gender, irrespective of the fact that the defendant
had the mens rea for the crime, and that the defendant engaged in the act required to
commit the crime (assuming the definition includes intercourse per os and per anum).
Before we begin what will be a complicated discussion of Dirk's liability for rape, please take
note of how the discussion will progress. We will begin by addressing (1) what Dirk's criminal
liability would be if Sheila had been a woman, and then we will address (2) the legal
consequences of Sheila's gender.

16

See for eg., New York Penal Law 130.00, "Sexual intercourse has its ordinary meaning and occurs
upon any penetration, however slight."
17
See New York Penal Law, 130.35 ("Rape in the first degree"): "A male is guilty of rape in the first
degree when he engages in sexual intercourse with a female . . . " (emphasis added), but see Dressler discussing the
Michigan Rape Statute which is gender neutral.

52

Now, analyze the statute:

Rape: "intentionally having sexual intercourse with a woman not one's wife with
knowledge that she did not consent."
(i)Act: "having sexual intercourse"
(ii)Mens Rea: "intentionally;" "with knowledge"
(iii)Attendant Circumstances: "a woman", "not one's wife," "did not consent"
(iv)Result: sexual intercourse.
First, Dirk's liability for rape if Sheila had been a woman
(a) Common law: Under the common law rape is a general intent crime. Therefore, at
common law the mens rea was not stated in the definition of the offense; it was sufficient that the
actor perform the act under morally culpable circumstances. However, today the legislature may
require varying levels of culpability for the crime of rape. Here, the statute tells us that the actor
must "intentionally" engage in the conduct (act), and that the mens rea must be committed
"knowingly."
(i) Act: the statute tells us that the actor must intentionally engage in the conduct of
sexual intercourse to establish the act of the crime.
Now use the facts, Dirk intentionally entered the ladies' bathroom after making
sure that the hallway was deserted ("Dirk glanced around . . . ") so that he could engage
Sheila in sexual activity. Dirk then pushed Sheila up against the wall, unzipped his pants,
removed Sheila's underwear, and penetrated ("a willed muscular contraction") Sheila's
anus. This progression of events establishes Dirk's intent to engage in the act of rape.
Now, if the Bare-Hug Bar is in a jurisdiction where the definition of sexual intercourse
includes anal penetration, then Dirk would have successfully engaged in the act required
for rape (at this point we are assuming Sheila is a woman).
(ii) Mens Rea ("with knowledge that she did not consent"): the statute tells us that the
actor must know that the victim is not consenting to the intercourse.
Now use the facts, Dirk used intimidation and force to penetrate Sheila's anus
with his penis. He threatened Sheila verbally ("if you keep quiet and do as I say, I won't
hurt you"), as well as physically by pushing Sheila face-forward against the wall. These
factors would likely establish that Dirk knew Sheila was not consenting to the sexual
interaction.
(iii) Attendant Circumstances ("with a woman", "not one's wife"): In the discussion of
the Fall, 1991 exam, we determined that the mental state of recklessness or above was
required for attendant circumstances. For the purpose of this analysis we will assume that
Jeremy was lying to Dirk when he claimed Sheila was a man, and that Dirk never
actually verified for himself whether Jeremy was telling the truth. Therefore, we will not
consider the implications of Sheila not being "a woman" at this point in the analysis.

53

Nothing in the fact pattern indicates that Sheila was Dirk's "wife" and it is quite
clear that this was the first time that Dirk and Jeremy had met Sheila. Therefore, Dirk was
at least reckless as to the attendant circumstance of Sheila not being his "wife."
(b) MPC: The MPC rape statute, 213 , is not gender neutral. 18 However, the MPC does define
"sexual intercourse" more liberally than most common law statutes by including oral and anal
contact. 19 Therefore, the MPC definition of rape eradicates one of the two main problems
highlighted at the very beginning of this exam discussion.
MPC statutes, like the common law, need not be defined in terms of a single mental state.
Applying the rules of the Code to this rape statute, the prosecution would be required to prove
varying mental states for different material elements.
(i) Act: Under the MPC intentional is divided between the mental states of "purpose" and
"knowledge." Therefore, the actor must have the "conscious objective" to engage in the
conduct, or "be aware" that he is engaging in such conduct.
Now use the facts, Dirk's actions (pushing Sheila towards the wall, unzipping his
pants, and penetrating Sheila's anus with his penis), as well as his words ("if you keep
quiet and do what I say, I won't hurt you") create a strong argument that it was Dirk's
"conscious objective" to engage in forcible sexual contact with Sheila. 20
(ii) Mens Rea ("with knowledge that she did not consent"): same analysis as common
law.
(iii) Attendant Circumstances ("with a woman", "not one's wife"): the MPC requires
the mental state of recklessness or above for attendant circumstance elements. The
analysis is the same here as the common law.
Conclusion: There are many complicating factors in the analysis of Dirk's liability for rape
under both the common law and the MPC and they are discussed infra in the analysis of
attempted rape, as well as in the discussion of defenses to rape.
The MPC defines sexual intercourse more broadly than the common law; therefore there
is a greater likelihood that Dirk would be convicted of rape under the MPC (assuming Sheila is a
woman). However, ultimately, an attendant circumstance is still missing (Sheila is a woman),
and an attempted rape conviction seems more probable than a rape conviction. We will now
discuss the implications of this "missing" attendant circumstance.

18

See 213.1 (1) "Rape. A male who has sexual intercourse with a female is guilty of rape if: . . . "
(emphasis added).
19
See 213.0 (Definitions) (2) "Sexual intercourse includes intercourse per os and per anum with some
penetration, however slight; emission is not required." (emphasis added).
20
See State v. Rusk , K&S illustrating the importance of establishing the element of force in a
prosecution for rape.

54

LEGAL IMPLICATIONS OF SHEILA'S GENDER: a discussion of attempted rape and

deviate sexual conduct
DIRK - ATTEMPTED RAPE: Now we will examine the legal consequences of Sheila's
gender. Since Sheila is a man and not a woman, a crucial attendant circumstance is lacking.
Therefore, under both the common law and the MPC Dirk could not be guilty of rape; however
he may be guilty of an attempted rape.
(a) Common law: Attempt is a specific intent crime, the actor must engage in conduct
that constitutes a substantial step towards the commission of the target offense, with the
further intent that the crime actually occur. Whether the actor has actually taken a
substantial step towards the commission of the target offense is analyzed through a series
of tests that have been developed under the common law. 21
Now use the facts, Dirk took a substantial step towards the commission of the
offense, regardless of which test is used, since he actually completed the act required for
the target offense (i.e. his penis actually penetrated Sheila's anus.) Therefore, Dirk may
be guilty of an attempted rape under the common law. However, the defense of
impossibility, discussed infra question #3, may (or may not) provide Dirk with a viable
means of avoiding liability for attempted rape.
(b) MPC: Under the MPC Dirk would probably be guilty of an attempted rape because
5.01(1)(6) states that the actor is guilty of an attempt when he "purposely engages in
conduct that would constitute the crime if the attendant circumstances were as he
believed them to be." 22 Although Sheila was not a "woman" (attendant circumstance),
Dirk believed that Sheila was a woman. Therefore, if the attendant circumstances were
as Dirk believed them to be, Dirk would be guilty of attempted rape 23 (recall that the
MPC includes intercourse per os and per anum in the definition of sexual intercourse).
DIRK - DEVIATE SEXUAL CONDUCT: Here we are considering the implications of the
lack of an attendant circumstance as well as a statutory definition of sexual intercourse which
excludes anal penetration. The subsequent analysis will discuss the availability of a prosecution
under deviate sexual intercourse for situations in which such limitations exist.
(a) Common law: Different jurisdictions have created various sex offenses under which persons
who sexually assault can be prosecuted. Examples of such offenses are: sexual misconduct,
21

See supra, for a complete discussion of the various tests used in the analysis of common law attempt.
This section of the Code abolishes factual impossibility by eliminating a mistake about an attendant
circumstance as a possible defense.
23
Several jurisdictions have followed the lead of the Model Penal Code. See for eg., New York Penal
Law 110.10.
Attempt to commit a crime: no defense:
If the conduct in which a person engages otherwise constitutes an attempt to
commit a crime pursuant to section 110.00, it is no defense to a prosecution for
such attempt that the crime charged to have been attempted was, under the
attendant circumstances, factually or legally impossible of commission, if such
crime could have been committed had the attendant circumstances been as such
person believed them to be.
22

55

sodomy, sexual abuse, aggravated sexual abuse, etc. . . . 24

(b) MPC: 213.2 of the MPC provides the alternate prosecution option of deviate sexual
intercourse. The deviate sexual intercourse provision of the MPC is gender neutral; the statute
simply states: "a person who engages in deviate sexual intercourse with another person . . . "
(emphasis added). Additionally, deviate sexual intercourse is defined as "per os or per anum
between human beings who are not husband and wife."
Now use the facts, Dirk would likely be guilty of deviate sexual intercourse under the
MPC because he is a person who forced another person not his wife, to engage in anal
intercourse. The degree of force that Dirk used would determine whether he was guilty of a
felony of the second or third degree. 25
DIRK - MURDER: Before we discuss Dirk's liability for murder we must establish that Dirk is
liable for Bob's actions through the "innocent instrumentality" rule.
Accomplice Liability Under the Common Law: Under the common law, a person is an
accomplice to a crime if he intentionally assists another person to engage in the conduct that
constitutes an offense, with the minimum level of culpability required for that offense. Under
the common law, Dirk was not an accomplice but a principal in the first degree because, acting
with the requisite mens rea, he coerced an "innocent instrumentality" (Bob) to commit the
offense. Therefore, accomplice liability would only really be applicable in the analyses of Bob's
and Jeremy's conduct.
(i) Act: "killing"
(ii) Mens Rea: "malice aforethought"
(iii) Attendant Circumstances: "a human being", and "by another human being"
(iv) Causation: defendant's conduct must be the actual ("but for") cause of the homicide,
and under the common law it must also be the proximate cause of the homicide.
(v) Result: death

24

See New York Penal Law Article 130 - Sex Offenses.

Compare 213.2 (1) (a) with 213.2 (2) (a) for an understanding of the different levels of force
required for second and third degree deviate sexual intercourse.
25

56

(a) Common law: The issues of premeditation and deliberation would make murder, in this case,
a specific intent offense.
(i) Act ("killing"): Under the common law, murder has usually been interpreted to
require the mental state of intent for the act of the offense. Reckless and negligent
murder has usually been termed "manslaughter." However, it may sometimes be difficult
to draw the line between "extreme recklessness" (constituting murder), and "regular
recklessness" (constituting manslaughter.)
Now use the facts, Bob's conduct (the stabbing of Sheila) was a willed muscular
contraction, and therefore satisfies the voluntary act requirement.
(ii) Mens Rea ("malice aforethought"): A person acts with malice aforethought if she
kills another human being with one of the following four mental states:
(1) the intention to kill a human being (express malice)
(2) the intention to inflict grievous bodily injury on another (implied malice)
(3) an extremely reckless disregard for the value of human life (implied malice)
(4) the intention to commit a felony during the commission or attempted
commission of which a death results (implied malice)
Now use the facts, it is quite clear that Dirk acted with express malice, and that
he intended to kill another human being, when he ordered Bob to kill Sheila ("kill Sheila
or I'll kill you"). Dirk also ordered Sheila's murder during the commission of a felony
(probably attempted rape); therefore Dirk would also be guilty of felony murder. Felony
murder will be discussed in question #2 when "other offenses" are analyzed.
This murder is premeditated 26 and deliberate 27 since Dirk planned the killing by
ordering someone else (Bob) to kill for him. Premeditation is established because Dirk
required a quantity of time to formulate the plan to have Bob do the killing for him.
Deliberation may be established because ordering someone else to kill appears "cool"
and "calm", however, Dirk did react with extreme emotion to the discovery of Sheila's
true gender, so there is an argument that he was acting "in the heat of passion."

26

Premeditated literally means to "think about beforehand". The controversial issue is how long in
advance must the actor actually plan the murder? For an example of a court that dealt with this issue see
Commonwealth v. Carrol K&S , where the court convicted a man of first degree murder for shooting his wife after
an argument, by holding that although some premeditation is required, "no time is too short" to establish
premeditation.
27
Although courts often treat issues of premeditation and deliberation similarly and simultaneously,
premeditation refers to the quantity of time taken, and deliberation refers to the quality of the thought processes
involved. Deliberation is characterized by "cool, calm" thinking, as opposed to someone who acts in the heat of
passion.

57

(iii) Attendant Circumstances: Dirk was at least reckless with respect to the fact that
both Bob and Sheila were "human beings."
Accomplice Liability Under The MPC: The MPC provision on accomplice liability has had a
significant impact on American law. MPC 2.06(1) entitled "Complicity", states that "a person
is guilty of an offense if it is committed . . . by the conduct of another person for which he is
legally accountable." MPC 2.06(2) further states that a person is legally accountable for the
conduct of another person when "acting with the kind of culpability that is sufficient for the
commission of the offense, he causes an innocent or irresponsible person to engage in such
conduct." The Code abolishes the common law distinctions between principals and accessories.
Here, Dirk forced Bob, an "innocent instrumentality" to commit criminal homicide, therefore
under the MPC Dirk is legally accountable for Bob's actions.
(b) MPC: Now that we have established that Dirk is liable for Bob's actions, we can
proceed to an analysis of criminal homicide under the MPC.
(i) Act ("killing"):
Bob's conduct is attributable to Dirk through the theory of
accomplice liability. Therefore, when Bob lunged at Sheila and stabbed her in the throat,
the act was complete. 28
(ii) Mens Rea: Under 210.2 criminal homicide constitutes murder if it is committed (a)
purposely or knowingly, or (b) under circumstances manifesting extreme indifference to
the value of human life (includes felony murder rebuttable presumption which is
discussed infra.).
Now use the facts, it seems to have been Dirk's conscious objective (purpose) to
kill Sheila since he expressly said "kill Sheila or I'll kill you." Therefore, Dirk possessed
the mens rea for murder.
(iii) Attendant Circumstances: Dirk was at least reckless with respect to the fact that
both Bob and Sheila were human beings.
Please note that 210.3 of the MPC provides the lesser offense of manslaughter for
homicides that would be considered murder but are committed under the influence of
extreme emotional disturbance. This issue will be discussed infra in the section
analyzing the various defenses to the alleged crimes.

28

Note that this was a voluntary act. Bob was aware of his conduct, and his lunging toward Sheila was a
"willed muscular contraction." It is true that Bob may have been coerced, however,
this goes to an analysis of Bob's defenses for murder, it does not change the fact that the actus reus was committed.

58

EVALUATING JEREMY'S LIABILITY:

JEREMY - RAPE
Jeremy's liability for rape is premised on the same issues as Dirk's liability for rape. The
issue of Sheila being a man (lack of an attendant circumstance) is an impediment to a
rape conviction, as is the fact that Jeremy forced Sheila to perform intercourse per os
(orally) which is not always included in the definition of sexual intercourse. The element
of force required for a rape conviction would likely be established since Jeremy "forced"
his penis inside Sheila's mouth, and then had Dirk hold Sheila's arms down as Jeremy
lifted Sheila's skirt.
JEREMY - ATTEMPTED RAPE
Jeremy would likely be guilty of an attempted rape for the same reasons as Dirk, and
additionally because Jeremy actually attempted to penetrate Sheila's vagina. Jeremy
stated: "Now I think I'll try her front side." Jeremy had Dirk hold Sheila's arms down
while he lifted her skirt, intending to penetrate Sheila, and it was only the discovery of
Sheila's true gender that protected Sheila from being raped by Jeremy.
JEREMY - DEVIATE SEXUAL CONDUCT
Jeremy's liability for deviate sexual conduct would follow the same analysis as Dirk's
liability for that crime, so please see supra for the relevant discussion.
JEREMY - MURDER
(a) Common law: Jeremy's liability for murder should be considered in light of the
Pinkerton doctrine. Under the Pinkerton doctrine a co-conspirator is responsible for
any crimes committed by other members of the conspiracy if: (1) it was a specific object
of the conspiracy, or (2) if it was committed in furtherance of the conspiracy and was
reasonably foreseeable. However, here there is nothing to indicate that Dirk and Jeremy
conspired to rape (or assault, or engage in deviate sexual conduct with) Sheila. Even if
they had so conspired, the murder may not have been the specific object of the conspiracy
or in furtherance of the conspiracy. Further, the reaction that Sheila's gender aroused in
Dirk was probably not a foreseeable consequence of the attempted rape. This is further
substantiated by the fact that there was no weapon used in the rape, and presumably
Jeremy had no way of knowing that Dirk had a knife. Therefore, Jeremy would likely not
be guilty of murder under the Pinkerton doctrine.
(b) MPC: The MPC abolished the Pinkerton doctrine. Therefore, Jeremy's only real
potential liability for murder would arise as an accomplice under the felony murder rule.
However, Jeremy did not participate in the murder per se, and it is also doubtful he could
have prevented it. Actually, it can even be argued that Jeremy did try to prevent the
murder when he begged Dirk to stop ("Stop Dirk, stop.") The facts do tell us that Jeremy
"wanted to do everything possible to calm him [Dirk] down."
59

BOB - MURDER
Common law : Bob is likely guilty of reckless murder (i.e. manslaughter) since,
although he was coerced into killing Sheila, he could have prevented Sheila's death. Bob
probably lacked the malice aforethought required for murder since it was Dirk's threats
that caused Bob to stab Sheila. However, Bob probably could have stopped Dirk once
the knife was in his possession, and thereby prevented Sheila's death. Bob could also be
guilty of reckless murder on the theory that his mens rea for murder is established
through his omission where there is a legal duty to act. Bob had a legal duty to help
Sheila because he created the harm and the risk of death by stabbing Sheila. The facts
tell us that Bob did nothing to help Sheila after he stabbed him, and that he actually was
partying with his friends and jeering at the movie "Tootsie" when the police arrived at his
home.
MPC: Under the MPC 210.3 (1) Bob would probably be guilty of manslaughter
because he acted recklessly.

2. OTHER OFFENSES:
FELONY MURDER: Felony murder authorizes strict liability for a death arising during
the commission of a felony. Therefore, the prosecutor may use the intent to commit the
felony to impute the intent to commit murder. This frees the prosecutor from the
responsibility of proving "malice aforethought" directly, because it is presumed that the
malice to commit the crime is sufficient malice to create liability for murder. The felony
murder doctrine has created significant controversy and jurisdictions have responded by
applying limiting doctrines to curtail its use. Therefore, the felony murder rule has
varying applications depending on who does the killing, who is killed, and what
causation doctrine is applied. This is particularly important with respect to Jeremy and
Bob's liability for felony murder.
If the jurisdiction follows the agency theory of liability for felony murder, all killings by
a non-felon are excluded. 29 This appears to be a non-felon killing (Bob was a non-felon),
therefore under a strict agency theory (which is the majority rule) Dirk and Jeremy may
not be guilty of felony murder. However, this interpretation is deceptive because Bob's
actions are attributed to Dirk through the "innocent instrumentality doctrine." Therefore,
although it is true that Bob actually stabbed Sheila, it was Dirk's express malice that
culminated in Sheila's death. Therefore, even applying the agency theory, it is probable
that Dirk would be guilty of felony murder.

29

See State v. Canola, K&S.

60

The proximate cause theory does include killings by a non-felon as long as the felon set
in motion the conduct that culminated in the death. Dirk, a felon, set the murder in
motion; therefore, under the proximate cause theory of liability Dirk and Jeremy may be
guilty of felony murder.
DIRK
(a) Common law: Under the common law Dirk would likely be guilty of felony
murder since Sheila's death occurred during the attempted commission of a felony
(attempted rape would qualify in all jurisdictions). This does not seem all that
important with respect to Dirk's liability for rape since it is quite clear he acted
with express malice and would be convicted of murder anyway. However, the
one reason it may be important is that Dirk may be "death eligible" (eligible for
the death penalty) and felony murder can be an aggravating circumstance in
capital punishment considerations. 30
(b) MPC: Under the MPC, the felony murder doctrine is retained in the form of a
rebuttable presumption. 31 Therefore, although recklessness is presumed during
the commission of a felony, the defense has the opportunity to rebut that
presumption and present evidence proving that the defendant did not have the
requisite intent necessary for a murder conviction.
Now use the facts, Dirk would likely be guilty of felony murder even
under the MPC. Dirk was certainly involved in the commission of a felony
(whether it was rape, attempted rape, or deviate sexual intercourse) when Sheila
was killed. It would be extremely difficult for the defense attorney to rebut the
presumption in this instance.

30

Recall the discussion supra, of aggravating and mitigating circumstances in the determination of death

eligibility.
31

See 210.2 (1) (b) ". . . if it is committed recklessly under circumstances manifesting extreme
indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is
an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit
robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious
escape." This provision of the MPC has not been widely accepted and has only been adopted by the state of New
Hampshire.

61

JEREMY
(a) Common law: The only way that Jeremy may be guilty of murder is through
accomplice liability arising under the felony murder rule. However, with respect
to Jeremy's liability we must ask whether the murder was a foreseeable
consequence of the attempted rape. There is a strong argument that murder is not
a foreseeable consequence of a rape that is committed without a dangerous
weapon. Dirk's actions and severe reaction to Sheila's true gender may also be
considered a "gross and bizarre" intervening act, thereby relieving Jeremy of
liability for felony murder.
(b) MPC: Jeremy would probably be able to rebut the felony murder presumption
under the MPC by illustrating how he tried to prevent the murder. It is true that
Jeremy was involved in the initial criminal activity; however, his attempt to try
and dissuade Dirk from forcing Bob to kill Sheila shows that he was not reckless.
BOB
Common law: Bob cannot be guilty of felony murder because he was not
involved in any felony (i.e. did not participate in the attempted rape) when he
stabbed Sheila. If you were trying to be a creative prosecutor you may come up
with the idea that Bob was engaging in the crime of assault when he stabbed
Sheila. However, this would not work because you cannot bootstrap a crime to
the felony murder doctrine. Bootstrapping is when you attempt to use a lesser
included offense (such as assault) as the felony that creates liability under the
felony murder rule. If prosecutors were allowed to do this they could almost
always find a crime to allege the defendant was committing when the death
occurred. Since felony murder is a very effective prosecutorial tool (you don't
have to prove intent because the intent for the commission of the felony is
imputed to the murder), if bootstrapping were allowed there would be
considerably more felony murder convictions.
MPC: The MPC has basically abandoned the felony murder rule, although it
retains it in principle through the "rebuttable presumption." In the case of Bob's
liability it is likely that the presumption would be rebutted since Dirk forced Bob
to stab Sheila.

CONSPIRACY
For an analysis of the differences between conspiracy under the common law and under
the MPC, see supra for the comparison chart. Although a creative mind might recognize
a potential conspiracy between Dirk and Jeremy (they did both attempt to rape the same
person), or Dirk and Bob (why didn't Bob stab Dirk instead of Sheila once he had the
knife?), there is nothing in the facts which indicate that any conspiracies existed.

62

DEVIATE SEXUAL CONDUCT

Although this does fall in the "other offense" category it was logical to discuss this crime
in conjunction with the rape and attempted rape charges. Therefore, a discussion of
deviate sexual conduct can be found supra.
3. DEFENSES:
Dirk - Rape:
1. Mistake of fact as to Sheila's consent
2. Insufficient force to establish rape under the statutory standards
3. Allegations themselves do not comply with statutory requirements for rape since
Sheila was a man, and the conduct involved anal penetration which does not fall within
the definition of sexual intercourse.
4. Intoxication
1. Mistake of Fact
(a) Common Law:
(i) Dirk could argue mistake of fact regarding Sheila's consent by claiming that
he did not "know" Sheila wasn't consenting. Since rape is a general intent crime,
only a reasonable mistake of fact will exculpate the defendant. However, in
Regina v. Morgan 32, the court held that even an unreasonable mistake of fact can
exculpate a defendant for a general intent crime. Using the Morgan doctrine, Dirk
could assert that Sheila's flirtatious behavior and consent to other physical
interaction (i.e. "Dirk commented while rubbing Sheila's back") negated his mens
rea for rape because he honestly believed that Sheila was consenting. Dirk could
further argue that Sheila "remained quiet", and that Sheila never actually said the
word "no", thereby illustrating that her lack of consent was not apparent. Her
scant clothing, the reputation of the establishment, and her potential "immoral"
character may convince a jury that she "deserved" or "was asking for" such sexual
assault. However, Sheila's behavior and his/her crying should have indicated to
Dirk that he/she was not consenting. Further, Dirk actually said "if you keep
quiet and do as I say, I won't hurt you", and then pushed Sheila face-forward
against the wall. This show of force would be persuasive evidence in the
prosecution of Dirk for rape. 33

32

See Regina v. Morgan, K&S, where the victim's husband invited the defendants to have sexual
intercourse with his wife and told them that they should not be surprised if she struggled during intercourse because
she was "kinky" and that this was the only way she would get "turned on". The Court held that although the
defendants' belief in the victim's consent may not have been reasonable, an honest belief in consent is enough.
33
See State v. Rusk, K&S, where even though the taking of the victim's keys in an area she was not
familiar with may have immobilized and frightened her, the court focused on the defendant's light choking of the
victim to satisfy the force element required for rape, indicating that it is very difficult to convict a rapist based on the
victim's fear alone absent any physical threat or injury.

63

The mistake of fact defense is not applicable to Dirk's mistake regarding Sheila's
gender. The mistake of fact defense was essentially created (it is a case-in-chief
defense) to exculpate those defendants who were not morally culpable for the
offense they had committed because they were mistaken as to an essential fact.
Their mistake regarding the essential fact would negate their mens rea for the
crime, a material element of the crime would then be missing, and hence no crime
would have occurred.
Mistake of fact is used when the defendant's conduct is a lot worse than
what he believed it to be. Here, Dirk's conduct was a lot better (at least legally)
and than what he believed his conduct to be. In these situations, where a
defendant's actions don't have the legal consequences that the defendant believed
existed, the defense of impossibility, not mistake of fact is implicated. In this
sense, you can almost think of mistake of fact as the converse of impossibility. 34
When a defendant doesn't have the mens rea for the crime, but has committed a
crime according to the law = Mistake of Fact
When a defendant has the mens rea for the crime, but because of the lack of an
essential element of the crime, his conduct is not legally prohibited =
Impossibility
MPC:
(i) Mistake of Fact (2.04): a mistake of fact is a defense if it negates the
required mens rea for the crime. This is analogous to the common law's handling
of the general and specific intent distinction; however, the MPC does not use
these terms in the categorization of crimes. Here, Dirk was mistaken as to the
attendant circumstance of Sheila being a man. However, this mistake of fact
cannot be used as a defense because it did not negate Dirk's mens rea for rape.
Dirk intended to rape a woman, and although Sheila turned out to be a man, Dirk
Under the MPC, the defendant should be
still had the mens rea for rape.
convicted of the offense that would have occurred "if the facts were as he
believed them to be."
Now use the facts, Dirk believed he was committing rape; therefore the
mistake of fact doctrine seems to indicate that he should be convicted of the crime
of rape (this is consistent with the subjectivist approach of the Code). 2.04(1)(b)
tells us that mistake of fact is a defense when it negates the mens rea required for
the perpetration of the crime. MPC commentaries to 2.04(1)-(2) state that;
"ignorance or mistake has only evidential import; it is significant whenever it is
logically relevant, and it may be logically relevant to negate the required mode of
culpability or to establish a special defense." Mistake of fact is not logically
34

For an excellent commentary on the complicated interplay between mistake of fact and impossibility,
see F. Dutile & H. Moore, Mistake and Impossibility: Arranging a Marriage Between Two Difficult Partners, 74
NW U. L. Rev. 166 (1979).

64

relevant here because the crime that Dirk committed results in less criminal
liability than what he believed he was doing. In essence, Dirk's "mistake of fact"
is beneficial, not detrimental, to his case so the mistake of fact defense is not a
potential defense tactic.
2. Dirk's Actions Do Not Fall Within the Statutory Requirements For Rape
(according to the statute given for this exam):
Dirk could argue that since Sheila wasn't a woman within the meaning of the
statute, all the essential crime elements were not there, and therefore no crime
existed. Under this theory Dirk could be liable for attempted rape. Further, under
the common law (but not under the MPC) Dirk could argue that the statute
requires that the intercourse include vaginal penetration (we are assuming that we
are in jurisdiction that has preserved the traditional definition of rape), and since
he only penetrated Sheila per anum, he cannot be guilty of rape.
3. Insufficient Force:
(a) Common law:
The problem here is that we do not know the degree of force required for rape in the
jurisdiction where Dirk is being prosecuted. Dirk could try this defense; however, the
circumstances of the sexual assault (that have already been discussed) would most likely
establish that there was sufficient force.
(b) MPC:
Dirk could argue that his actions did not rise to the level required for rape under
213.1 of the MPC. Under 213.1 (a) the actor is only guilty of rape if he compels the
victim to submit by force or by threat of imminent death, serious bodily injury, or
extreme pain or kidnapping. Here, it is arguable that Dirk's threat ("if you keep quiet and
do what I say, I won't hurt you"), and his pushing Sheila face-forward against the wall,
did not constitute a threat of imminent death, or even serious bodily injury. The MPC
defines rape in terms of the defendant's positive acts of aggression. The emphasis is on
the defendant's behavior and not the victim's subjective state of mind.
4. Intoxication:
Although nothing in the fact pattern states conclusively that either Dirk, Jeremy, or Bob
was drunk, the alleged crimes did take place in a bar and therefore this defense should be
considered.
Dirk - Defenses to Attempted Rape
Impossibility:

65

(a) Common law:

(i) Dirk could invoke the defense of impossibility if he were prosecuted for
attempted rape. Impossibility is a crime-specific defense that was created for
defending against prosecutions for inchoate crimes. Historically there were two
kinds of impossibilities, although a third kind has emerged in response to the
complexity of the case law dealing with impossibility.
Factual Impossibility exists when the defendant's conduct would
have been a crime if the facts had been as he believed them to be. At
common law factual impossibility is not a defense to criminal attempts.
Now use the facts, there is a strong argument that this is a
case of factual impossibility since Dirk's actions would have been a crime
if not for the fact that Sheila was a man, and not a woman.
Pure Legal Impossibility exists if the defendant engages in lawful
conduct that he erroneously believes is a crime.
At common law, legal impossibility is a defense to criminal
attempt.
Now use the facts, Dirk's conduct, even if it does not
constitute rape, does rise to the level of some sort of criminal activity
(even if only a simple assault). Therefore, this is not a case of pure legal
impossibility.
However, most cases dealing with the impossibility defense really
reflect a hybrid between legal and factual impossibility. The hybrid nature
of the majority of the cases can likely be attributed to the difficulty in
discerning between which elements are "fact" and which elements are
"law".
Hybrid Legal Impossibility exists when the defendant's goals are illegal,
but it is impossible to commit the crime because the defendant has made a
mistake regarding some fact relevant to his conduct, which affects the
defendant's criminal liability. In this sort of impossibility the behavior
that the defendant intended to engage in falls within the conduct that is
prohibited by law, but for reasons that have legal implications, the
defendant's conduct doesn't meet the statutory requirements. In cases of
hybrid impossibility the best approach is to decide whether the situation at
hand falls closer to factual impossibility or legal impossibility. If it is
most similar to factual, the defendant should be convicted. If it falls closer
to legal, the defendant should be acquitted. However, some jurisdictions
have completely abolished hybrid impossibility as a defense.
Now use the facts, there is a strong argument that
this is a case of hybrid legal impossibility. Dirk was factually mistaken
regarding Sheila's gender and that mistake affected the legal consequences
of Dirk's conduct. However, it is very difficult to distinguish between
66

cases of factual and hybrid impossibility. 35 This case is "factual" because

Dirk was mistaken as to the fact that Sheila was a man and not a woman.
This case is "legal" because the law defines rape as man to woman, and
not man to man.
However, the difficulty in distinguishing between the various types
of impossibilities and the ramifications of these difficulties has lead some
jurisdictions to abolish the defense entirely. The MPC has been a leader in
this abolition trend.
(b) MPC:
(1) 5.01 of the MPC abolishes factual impossibility by providing for the
alternative prosecution of an attempt to commit the target offense 36 (". . . engages
in conduct that would constitute a crime if the attendant circumstances were as
she believes them to be"). This section of the MPC abolishes the impossibility
defense for both factual and hybrid impossibility (whereas the common law
sometimes allows defenses based on hybrid impossibility). The MPC did not
intend to abolish pure legal impossibility.

35

See People v. Dlugash, K&S, holding that: " there is sufficient evidence in the record from which the
jury could conclude that the defendant believed Geller to be alive at the time the defendant fired shots into Geller's
head. Defendant intended to kill a live human being." Here, Dirk believed Sheila to be a woman and he intended to
sexually assault a woman.
36
The abolition of the impossibility defense is consistent with the subjectivist approach of the MPC. The
actor is prosecuted based on what he believed to be happening, not on what was actually happening.

67

DIRK - MURDER
(i) Insanity
(a) Common law 37: Dirk may be able to argue, using the McNaghten test, that
due to a sudden mental defect (as a result of learning of his homosexual activity)
he was unable to know the nature and quality of his murderous act, and that he
also did not know that what he was doing was wrong. Dirk could try to prove this
cognitive impairment by claiming that Sheila's gender rendered him insane for a
period and as a result he did not know that forcing Bob to stab Sheila was a
crime. 38 This argument can be further reinforced by Dirk's bizarre reaction to
Sheila's serious injuries. Dirk laughed after Bob stabbed Sheila, and then bent
down to the body. Dirk stayed in the bathroom and was found with Sheila's blood
on his hands, indicating that he may not have known that what he had done was
wrong or illegal. Dirk never tried to run from the police, nor did he try to conceal
the crime.
Dirk could also try and argue, using the irresistible impulse test, that upon
learning of Sheila's gender he lost the ability to control his volition.
(b) MPC 4.01: "Mental Disease or Defect Excluding
Responsibility," incorporates both the cognitive and volitional prongs of the
common law. Therefore, Dirk would have to combine the arguments put forth in
the common law analysis in order to successfully argue that he was not
responsible for his actions by virtue of insanity.
(ii) Diminished capacity 39
(a) Common law:
(1) Mens Rea Diminished Capacity: Dirk could argue that his past
history of violent and bizarre behavior (perhaps induced by childhood
trauma) had diminished his capacity and were the reason he reacted
violently when confronted with the homosexual situation.

37

See analysis of different common law tests for insanity, supra.

The majority of jurisdictions have held that a homosexual advance is sufficient provocation to incite the
"reasonable man" to lose control and commit murder. Robert B. Mison,"Homophobia in Manslaughter: The
Homosexual Advance as Insufficient Provocation," 80 Cal L. Rev. 133 (1992). However, here it was Dirk's
positive acts of aggression which lead to the homosexual interaction. The victim did not do anything to induce the
homosexual activity, therefore it is questionable whether the provocation defense is applicable here.
39
See analysis of diminished capacity, supra.
38

68

(2) Partial Responsibility Diminished Capacity: Dirk could try and

argue that his discovery of Sheila's true gender and the realization that he
had engaged in homosexual activity, resulted in extreme emotional
disturbance. Dirk could argue that this provocation, and subsequent
diminished capacity should reduce his liability from murder to
manslaughter.
(b) MPC
The MPC only really retains diminished capacity in the form of extreme
emotional disturbance reducing murder to manslaughter.
BOB - MURDER
(i) Duress
(a) Common law: Under the common law the duress defense requires that the
actor be facing imminent death or serious bodily harm through deadly, unlawful,
force threatened by another person, for which the defendant was not at fault,
and for which the reasonable person would have been coerced into acting as the
defendant did under similar circumstances. However, this defense is unavailable
for intentional homicide. 40
Now use the facts, although the situation qualifies Bob for the duress
defense (i.e. Dirk was threatening him with a knife) , it is unavailable to him
because this was a case of intentional homicide. Additionally, the facts indicate
that there was only one knife, and that Bob took the knife from Dirk, and killed
Sheila. Once Bob had the knife in his hands (the fact pattern does not mention
any other weapons that might be available to Dirk) he could have either killed or
injured Dirk (if he only injured Dirk Bob could use the duress defense) or he
could have run from the bathroom and avoided criminal conduct entirely. It is
understandable, however, that Bob was under an enormous amount of pressure at
this time and may not have been thinking clearly.
(b) MPC: Under the MPC, 2.09, to invoke the duress defense the actor must
have been coerced by the use of or threat to use unlawful force against himself or
someone else that a person of "reasonable firmness" would have been unable to
resist. The duress defense is unavailable under the Code if the actor recklessly
placed himself in the situation.

40

The unavailability of the duress defense for murder seems to be based on principles of morality - why
should someone else die so that the actor can live? This argument seems valid for a justification defense, however is
it equally valid for an excuse? It seems that although Bob's actions for killing Sheila cannot be justified perhaps
they should not be excused based on the notion that an ordinary person in Bob's situation may have succumbed to
the coercion.

69

Now use the facts, Bob will likely be successful in asserting a

duress defense under the MPC since the Code does not limit duress to nonhomicide situations. Bob was threatened by Dirk and it is certainly possible that a
person of "reasonable firmness" in Bob's situation would have succumbed to the
threats.
(ii) Necessity
(a) Common law: Necessity is a justification defense 41 which is usually used in
situations where a natural emergency forced the actor to engage in certain
criminal conduct. The defense of necessity requires that the defendant
reasonably believe that the threat of imminent harm to himself or to another
exists and that the only way to avoid the harm is by engaging in the prohibited
conduct. The defendant must also choose between the lesser of the two evils, and
the defendant cannot be at fault in creating the necessity. It is unclear whether
necessity can be used as a defense to murder. 42
Now use the facts, the threat that Bob is facing is from another person,
and therefore is usually not considered within the ambit of the necessity defense.
Additionally, it is arguable whether killing Sheila, an innocent victim, is a lesser
evil than Bob dying himself. Bob's actions are not justified, there is nothing
Sheila did to deserve death, and society is not better off when Sheila dies. Once
Bob was given the knife, he probably would have been justified in killing Dirk
because that would have constituted a lesser evil since Dirk was threatening harm
to more than one person (Dirk was threatening Sheila and Bob, and the possibility
that Jeremy would soon be threatened exists as well).
(b) MPC: the Code recognizes a "choice of evils" justification defense in
3.02. The defendant may use the Code's justification defense if:
(i) "the conduct is necessary to avoid harm to himself or
to another" (the Code rejects "imminence" requirement)
(ii) the harm that D seeks to avoid is the greater evil
(iii) no legislative intent to exclude the justification

41

See Dressler, for a discussion of the difference between justification and excuse.
Regina v. Dudley and Stephens , K&S, held that Dudley's and Stephen's killing of a young boy and
eating him so that they could survive at sea were unjustifiable. Nevertheless, it is possible that the court held that
way for other reasons.
42

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4. CHANGE IN RESULT - SHEILA'S ALIVE

If Sheila had not died we would be dealing with the crime of attempted murder. This would
result in the following:
Generally Speaking (applies to all three defendants):
A. Attempted Murder is a specific intent crime and therefore certain defenses may be
available in a prosecution for attempted murder that were not available in a prosecution
for murder. However, it was previously noted that issues of premeditation and
deliberation may make murder, in this case, a specific intent offense.
B. Since we are now dealing with an attempt, the common law and MPC tests dealing
with attempts must be administered. 43 Since Bob actually stabbed Sheila (even if he/she
did not die from the stab wound), this would be a substantial step under both the
common law and MPC to create liability for a criminal attempt.
Dirk - how his liability is affected if Sheila does not die
A. Dirk's liability for rape is likely not affected if Sheila lives. The only relevance
Sheila's death is to Dirk's liability for rape is that a death is conclusive evidence of force.
If Sheila dies Dirk is more likely to receive the highest degree conviction for rape or
attempted rape, while if Sheila is still living Dirk has a better chance of receiving a
conviction of a lesser degree.
B. Under the common law, Dirk would likely be guilty of attempted murder if Sheila
does not die because he engaged in a substantial step (forcing Bob to kill Sheila)
towards the commission of the attempted murder, and he actually intended that Sheila die
(specific intent portion.)
Under the MPC Dirk would also likely be guilty of attempted murder since he
engaged in a substantial step planned to culminate in the commission of the target offense
that was strongly corroborative of his criminal purpose (5.01.)
Jeremy - how his liability is affected if Sheila does not die
A. Jeremy's liability for rape would not be affected except perhaps in the same way
Dirk's liability may be affected (see analysis above). Common sense tells us that Sheila's
death would make the rape appear significantly more brutal, so if Sheila does not die
there is a better chance Jeremy will avoid liability for rape (although there are other
complicating factors that indicate the Jeremy will not be guilty of rape anyway).

43

See supra, discussing the common law and MPC tests for attempt.

71

B. Since Jeremy's strongest potential liability for murder would arise under the felony
murder rule, Jeremy's potential liability diminishes significantly if Sheila does not die.
Jeremy's only potential liability for attempted murder would arise under a
theory of complicity. Under the common law, Jeremy was not Dirk or Bob's accomplice
in the attempted murder of Sheila because he did not have the specific intent to murder
Sheila, nor did he aid Dirk and Bob in killing Sheila. If the Bare-Hug Bar is in a
jurisdiction where one can terminate one's complicity through renunciation of one's
criminal purpose, Jeremy can also argue that he abandoned Dirk and Bob when he
begged them to stop. This is further substantiated by the fact that it was Jeremy who
called the police.
Under the MPC 2.06, Jeremy would also not be guilty because he never "acted
with the kind of culpability that is sufficient for the commission of the offense", and he
never aided or attempted to aid Dirk and/or Bob in murdering Sheila. Further, the MPC
recognizes the defense of abandonment, and Jeremy would likely be successful in
asserting a defense of renunciation of his complicity.
Bob - how his liability is affected if Sheila does not die
A. If Sheila had not died Bob could invoke the defense of duress. Since the common law
does not permit using the duress defense in homicide cases, this is a significant difference
for Bob. Since the MPC allows the duress defense for homicide, this does not affect an
analysis of duress under the Code.
B. As Bob is more likely to be guilty of manslaughter than murder if Sheila does die, if
Sheila does not die, Bob can only be guilty of a simple assault because Bob lacked the
specific intent for murder. 44

44

See Maher v. People, K&S, and how an attempted murder charge is reduced to a simple assault if the
specific intent to kill is not proven.

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PART II
SERA ISA - A WATOUSIAN REFUGEE IN LOS ANGELES
Question #5 - Isa is charged with the crime of: "failing to use a seatbelt for a minor (under
age 10) child, with the intent of depriving that minor child of safety."
Isa claims that she is not guilty of this crime because:
(1) she could not possibly have learned about the law in so little time
(2) she was never told about the law when she was learning to drive or when she was
taking her driving exam
(3) the law was not widely made known to the public
(4) her relatively inadequate English skills prevent her from learning about such laws as
quickly as others.
Statements 1-3 indicate that Isa is trying to invoke a mistake of law defense which would
negate her mens rea for violating the "Minor Child Seatbelt Law" ("Seatbelt law".)
The Mistake of Law Defense
Mistake of law is not a viable excuse under the common law or under MPC 2.02(9),
although certain exceptions do exist. Traditionally, courts have invoked the legal maxim
ignorantia legis neminem excusat which translates as "ignorance of the law excuses no
one." The reason is that courts assume that citizens should be aware of the law, and
consequently courts worry that mistake of law claims are fraudulent.
Mistake of Law is divided into two categories:
(1) Same Law Mistakes (defendant makes a mistake regarding the law defining the offense for
which she was prosecuted), and (2) Different Law Mistakes (defendant was mistaken regarding
the meaning of a law other than the law defining the offense for which she was prosecuted).
Isa's mistake of law would fall within the same law mistake category. Under both the common
law and the MPC there are two instances in which one can defend oneself on the grounds of a
same law mistake. They are: (1) if at the time of the commission of the crime the defendant
believed that the criminal law did not apply to her conduct, and her belief was based on an
official but erroneous interpretation of the law. (The relevant MPC provision is 2.04(3)(b).), or
(2) if it violates the defendant's right to due process.
Here, #1 does not apply to Isa's conduct since she simply did not know the crime existed.
However, Isa may have a strong due process argument based on the Supreme Court case,
Lambert v. California.

73

Lambert v. California: In this case, the defendant was a Los Angeles resident who had been
convicted of a felony while she was living in Los Angeles. A Los Angeles ordinance required
that all persons with felon records who were residing in Los Angeles register with the police.
The defendant failed to register and was therefore prosecuted for that crime.
The Supreme Court held that this was a due process violation because the defendant
lacked actual or constructive knowledge of the offense for which she was prosecuted. The
Lambert principle, although not entirely clear, seems to require three elements for a due process
violation.
(1) The offense must prohibit an omission.
Isa was charged with such an offense since the Seatbelt Law prohibits "failing to
use a seatbelt for a minor . . . ."
(2) The offense must be malum prohibitum in nature.
malum prohibitum: wrongful because it is prohibited.
malum in se: inherently wrongful.
The Seatbelt Law is essentially a traffic offense which is malum prohibitum and
not malum in se. At old common law almost all crimes were malum in se therefore this
due process problem did not really exist. However, in the modern era state penal codes
have become increasingly sophisticated and now include many violations that are
categorized as malum prohibitum (i.e. traffic laws).
(3) The offense must punish status rather than an activity. The status for which the
defendant was punished in Lambert was presence in Los Angeles.
This is the one prong of the Lambert test that Isa may have difficulty
establishing. There does not seem to be a "status" element here although perhaps Isa can
argue that the Seatbelt Law punishes her status as a parent/driver. However, this seems
to be stretching the principle somewhat and would not likely be accepted by a court.
Conclusion:
Under the common law Isa would have to rely on Lambert to be successful in asserting a
mistake of law defense. Based on Lambert Isa's argument is a strong one although Lambert can
be somewhat distinguished from Isa's case in that Isa is not really being punished for a status.
Isa can also argue that the Lambert holding is not entirely clear and that the Seatbelt Law's
failure to punish a "status" does not preclude her from invoking the Lambert defense.
MPC 2.04 (3) authorizes the mistake of law defense where "the statute or other
enactment defining the offense is not known to the actor and has not been published or otherwise
reasonably made available prior to the conduct alleged." Since the California legislature
recognized that the law was not widely made known to the public, Isa may have a valid argument
under the MPC although she would be hindered by the fact that the statute had been published.

74

In sum, although Isa could possibly prevail under both a common law Lambert analysis
and MPC 2.04(3), the MPC argument is the stronger of the two. Recognize also the
impediments to her case.
Statement 4 - Invoking a Cultural Defense - see infra question #7 (1) for discussion of this
issue.
Lack of Mens Rea: Did Isa Intend to Deprive Mia of Safety?
Common law: The Seatbelt Law is a specific intent crime because the actor must
commit the act (the omission - "failing") of the offense with the "intent of depriving a
minor child of safety." Isa can argue that although Mia was not wearing her seatbelt this
was a careless oversight on Isa's part and that she never intended to deprive her child of
safety. The prosecutor will likely counter Isa's argument by claiming that allowing one's
three year-old daughter to stand on the passenger seat while one drives in Los Angeles is
sufficient proof of knowledge of danger.
MPC: Under the MPC, intent is satisfied by purpose and knowledge. Isa will argue that
she lacked the requisite mental state for the crime and accordingly was not guilty.
Q6. No. It would not make any difference if Isa was aware of the Seatbelt Law but did not think
that it would go into effect until April 7, 1993. The reason is that we are still dealing with a
same law mistake, and not a different law mistake. This would still be a same law mistake
because Isa's mistake is concerning the same law under which she is being prosecuted - that law's
effective date. An example of a different law mistake would be if Isa thought that a separate law
existed stating that non-citizens did not have to comply with California state traffic regulations.
As this is not the case, under the new hypothetical of question six, Isa would still be invoking a
same-law mistake defense.
The reason this distinction is so important is that a different law mistake is a defense if it
negates the specific intent of the offense whether the mistake is reasonable or unreasonable.
Therefore, if this were a different law mistake Isa would have a strong defense. However, as
indicated, it is still a same law mistake.
In actuality this hypothetical would probably be more difficult to defend against than the
situation in question five since Isa is conceding her knowledge of the law in question six. This
renders Isa's common law due process argument worthless as Isa is admitting she was on notice
of the Seatbelt Law (even if she believes it is an inaccurate notice). If Isa could prove that the
legislature incorrectly publicized the Seatbelt Law's effective date as April 7, 1993, then Isa
would have a strong argument.

75

Q7. Isa's Liability for Involuntary Manslaughter

Common law: Under the common law involuntary manslaughter is either (1)
criminally negligent homicide or (2) misdemeanor manslaughter. 45
(1) Criminally Negligent Homicide: this category of homicide is less severe than murder
(criminally negligent homicide does not require "malice"), yet the negligence involved is more
severe than that which would result in civil liability. Courts have often been unclear in
distinguishing between reckless and negligent homicide. Dressler describes the line between
reckless and criminally negligent murder: "The actor, in the case of reckless murder, was aware
that she was acting in a highly dangerous fashion, whereas in the case of criminal negligence the
risk-taking was inadvertent (but the actor should have been aware").
Now use the facts, Isa should be guilty of criminally negligent homicide under the
common law because she should have been aware that omitting to take Mia to the doctor could
result in serious injury or death. Isa had a legal duty to act, and is therefore guilty of an omission
because she is Mia's mother. Isa has a further duty towards Mia after Mia is injured because Isa
was the one who created the risk to Mia by failing to ensure that Mia was wearing her seatbelt.
Isa's Cultural Defense: Subjectivizing the Reasonable Person
Standard
Isa may claim that although the average American citizen may be guilty of criminal
homicide under these facts, she should not be found guilty because she should be evaluated
according to the reasonable Watousian political refugee. The facts tell us that Isa's knowledge
of English and American ways was minimal. Further, Isa truly believed that if anyone saw Mia
hurt they would force her family to leave the country. She also illustrated her concern for Mia's
well-being by applying "hela" to Mia's wounds, an herbal Watousian medicine that she believed
would cure Mia.
It is true that the modern trend seems to permit the jury to consider some of the
characteristics of the defendant in assessing that defendant's liability for a particular crime. The
question then becomes just how far do we want to go in subjectivizing the reasonable person?
Does the reasonable Watousian political refugee fall outside the bounds of a fair administration
of justice? In making this sort of a determination one must consider notions of utilitarianism
(what is best for society) and retributivism (punishing the wrongdoer). Ultimately, this sort of an
analysis should focus on the goals and the purposes of criminal law. Dressler is correct when he
reasons that "not all characteristics of the defendant can be incorporated into the reasonable
person without destroying the objective aspect of the defense." The problem, of course, remains
what characteristics should be included.

45

Misdemeanor manslaughter (also referred to as the "unlawful act doctrine") is analogous to the felony
murder rule in that a person is guilty of involuntary manslaughter if she kills another person during the commission
or attempted commission of a misdemeanor. Some jurisdictions only permit malum in se offenses to trigger the
misdemeanor -manslaughter rule.

76

The primary case dealing with this issue is State v. Williams, in which the defendants,
husband and wife, were charged with manslaughter for failing to supply their 17-month old child
with adequate medical care. The defendants were ignorant regarding the seriousness of their
son's condition and they gave him aspirin to cure what they believed to be a headache. They
loved their son very much and in no way wished to cause him harm. They did not bring him to a
doctor for fear that the Welfare Administration would take the child away. The evidence showed
that the defendants did not understand the seriousness of their child's ailment. Nevertheless, the
court held that the standard for determining criminal liability is at what time would an "ordinarily
prudent person", who was concerned with the welfare of his child, deem it necessary to call a
doctor. The court found that such an "ordinarily prudent person" would have called a doctor
before the defendants did, and as such the defendants were guilty of involuntary manslaughter.
Therefore, under the Williams principle, Isa would be guilty of involuntary manslaughter.
Although Isa may have loved her daughter, and truly believed the "hela" would save her, the
"ordinarily prudent person" or "the reasonable person" would have taken a bleeding three yearold to the hospital.
(2) Misdemeanor-Manslaughter Rule (Unlawful-Act Doctrine):
If the Seatbelt law is a misdemeanor (which it likely is because it has a penalty of six
months jail time), Isa could be charged with involuntary manslaughter under the misdemeanormanslaughter rule. This rule authorizes a conviction for criminally negligent homicide for a
homicide that occurs during the commission or attempted commission of a misdemeanor.
Now use the facts, Isa was violating the Seatbelt Law (a misdemeanor) when Mia was
injured, and those same injuries later caused Mia's death. Therefore, Isa would likely be guilty
of criminally negligent homicide under the misdemeanor-manslaughter rule.
MPC: There is no involuntary manslaughter under the Code. Isa would either be charged with
(1) Manslaughter, or (2) Negligent Homicide.
(1) Manslaughter: 210.3 defines manslaughter as reckless homicide or murder that is
committed under extreme emotional disturbance.
Now use the facts, although it is possible that Isa could be convicted of reckless murder,
the facts do not indicate that she "consciously disregarded a substantial and unjustifiable risk."
However, Isa's failure to save her daughter was based on a fear that her family would be
deported. It is possible that a jury would conclude such a potentially selfish and calculated risk
to be reckless indifference towards her daughter's life.
(2) Negligent Homicide: 210.4 defines negligent homicide as criminal homicide that is
committed negligently. The Code does not include the misdemeanor-manslaughter rule.
Now use the facts, Isa was not intending to harm her daughter; therefore, there is a
strong argument that this homicide was committed negligently. Isa "should have been aware"
that her conduct was likely to result in serious injury or death to Mia. Further, Isa's omission did

77

constitute a "gross deviation from the standard of care that a reasonable person would observe in
the actor's situation." 46 (Refer to discussion supra of subjectivizing the reasonable person
standard.)

46

See MPC 2.02 (2)(d) defining "negligently."

78

FALL 1992 CRIMINAL LAW EXAM

79

FORDHAM UNIVERSITY SCHOOL OF LAW

EXAMINATION IN CRIMINAL LAW
THIS EXAMINATION CONSISTS OF 6 PAGES
THIS IS A THREE HOUR EXAMINATION
THIS IS A CLOSED BOOK EXAMINATION
NO MATERIALS MAY BE USED

DIRECTIONS:

DATE: Dec. 23, 1992

EXAM NUMBER:
CLASS SECTION:
PROFESSOR DENNO

YOU MUST INSERT YOUR IDENTIFICATION NUMBER,

YEAR AND SECTION, AND PROFESSOR'S NAME ON EACH
BLUEBOOK AND ON THE EXAMINATION PAPER ITSELF.

This examination consists of only one fact pattern followed by eight questions. I
have not weighted the eight questions according to time or points because part of what I will be
examining is your ability to determine which topics may need more time or explanation.
Furthermore, because the answers to some questions may be interrelated, I provide you with
some flexibility in the ways you may want to present your answers.

1.
2.
3.
4.
5.

6.

7.

Write your identification number, class section, and Professor's name on each bluebook.
Do not write your name on any bluebook or on the examination paper itself.
Please number each bluebook sequentially. For example, if there are three bluebooks,
number the first 1 of 3, the second 2 of 3, etc.
Read each question carefully before you begin to write. Answer the question according
to the facts presented.
Please write legibly and use every other line. I can only give credit for what I can read.
If you think it is necessary, state assumptions or additional assumptions of fact not
contained in the questions or facts but which you think are appropriate to answer the
questions more fully.
Take special note that for each offense mentioned, I ask that you discuss the possible
outcomes under both the COMMON LAW and the MODEL PENAL CODE. As a
summary of your analysis, note how the results would be similar or different depending
on whether you were applying the COMMON LAW or the MODEL PENAL CODE.
Good luck!

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For three years, Olga, age 36, and her assistant, Igor, age 24, ran "Orphans of All Ages
(OOAA)," a nursing home with over one hundred residents in the state of Swichigan. OOAA
was based on the concept that the very young, the very old, and the mentally disabled can benefit
from living with and helping one another.
OOAA was widely celebrated for its
humanitarianism, making the residents of Swichigan proud. Initially, OOAA deserved such
adulation. Many of its residents improved markedly, and were able to move on to lead
successful lives elsewhere. Such success was due primarily to Olga's and Igor's care for them,
and their care for one another.
Olga and Igor were a good match, everyone said. Igor, who had always been very shy
and extremely weak physically, had always found Olga extremely attractive because she had
everything he didn't: an aggressive personality and a massive body build.
Over time, however, Olga's and Igor's relationship deteriorated. Although the two had
been lovers and had engaged in consensual sexual intercourse over the three year period, Igor's
sexual interest in Olga was waning. He began to find more appealing some of the other residents
at OOAA, most particularly Molly. Desperate over her failing love life, Olga began extreme
measures to appeal to Igor sexually, calling him seductive names, flexing her muscles before
him, making it known to him that she would be available for him in her bedroom at any time.
Indeed, Olga had announced an "open door policy" to Igor, letting him know that her bedroom
door was always open for him.
Olga and Igor had been informed that Molly, who was eighteen, was residing at OOAA
because she had become brain damaged. With an IQ of 64 and the social capacity of an eightyear-old, she was classified as mentally disabled and her family was unable to take care of her.
Still, Molly had a flirtatious air about her and she appeared to be enamored with Igor, a situation
which infuriated Olga. Compared to Olga, Molly seemed to Igor to be sweet, passive, and
simply irresistible. Ever since she had arrived, Igor delighted in giving her gifts of candy.
Whereas the other residents made fun of Molly because of the silly mistakes she made, Igor
showered her with attention.
Finally frustrated with Igor's behavior, Olga was also turning her attentions elsewhere,
most particularly to Tim, an immature twelve-year-old boy whose mother was apparently a
mentally disturbed alcoholic. To Olga, Tim seemed cute and helpless, much like Igor used to be.
Both Olga and Igor acted upon their desires one summer evening. At 9:00 o'clock, when
most of the residents were asleep, Olga tiptoed to Tim's room, where he was playing with his
train set. Suggesting that they played trains together, Olga requested that Tim insert his penis
(what she called his "caboose") into her vagina (what she called her "tunnel"). Eager to please,
Tim did what Olga requested after she created his erection through oral stimulation. After
another round of oral and vaginal penetration with Tiny Tim, Olga felt as though she was
attractive again. She felt that she no longer needed Igor in her life.
Kissing Tim goodnight, Olga told him she was would return the next evening to play
again. Sobbing, Tim screamed out that he didn't like this game and that he wanted his mother.

81

He also complained that his "caboose" hurt him. Olga commented that Tim did like the game
and that he would get used to it. Exhausted, Olga returned to her bedroom and feel asleep
instantly.
Igor also made a 9:00 o'clock trip, but to Molly's room. When he entered, Molly looked
startled, although she smiled. Igor brought with him candy, explaining that if she gave him a
favor he would give her candy. The first favor Igor asked was that Molly take off all her clothes.
When Molly did what Igor requested, he gave her candy. The second favor Igor asked was that
Molly spread her legs. When she did so, he gave her candy. The third favor Igor asked was that
Molly allow him to insert his penis into her vagina. When Molly hesitated, Igor told her that if
she would get more candy if she would do what Igor wanted. Molly merely looked at Igor as he
vaginally penetrated her. After thirty seconds, Molly said that she didn't want the candy
anymore and that she wanted Igor to go away. Infuriated, Igor left the room.
Dejected, Igor went down the hallway. Passing by Olga's room, he noticed that her door
was open. Molly's rejection of him and Olga's open door made Igor rethink his feelings toward
Olga. Igor entered Olga's room and slipped into her bed the way he had so many times before.
"Olga, I want you," Igor said. Wakening, Olga responded that she was no longer interested in
Igor. Not believing her, Igor proceeded, while naked, to get on top of Olga, who was also naked.
Fully enamored, Igor tried to kiss Olga, but she only turned her head. Frustrated, Igor then
penetrated Olga's vagina while she lay completely still. After Igor ejaculated, he asked why
Olga had not moved or say anything while they were making love. Olga responded that she no
longer loved him and she didnt want to have sex with him. With that, Igor got out of bed,
disbelieving Olga.
Unbeknownst to either Igor or Olga, however, was the fact that Tiny Tim had spent the
last two hours trying to telephone his biological mother, Trish, so that she could come and rescue
him. Having reached Trish in her favorite bar, Tim convinced Trish and her friend Sam to agree
that they would come and get Tim out of OOAA. Tim said that he had been hurt, but he did not
say how he was hurt or who had hurt him.
When Trish and Sam arrived at OOAA, they knocked on the door but no one answered.
Perplexed, Trish opened the door and entered. They discovered Tim crying at the end of the
hallway. Trish ran and picked Tim up in her arms while Sam urged that they go as soon as
possible.
Turning around, they saw Olga walking toward them down the hall. Tim screamed that
Olga was going to hurt him. Olga replied that she did not want hurt them, she just wanted to get
Tim. Emaciated from years of drinking, Trish paled in size compared to Olga. "You aren't
supposed to have him," Olga insisted. "Well, you aren't supposed to hurt him," yelled Trish. At
this point Sam ran at Olga to push her down. With one arm and no effort, Olga threw Sam to the
floor.
Coming forward again to Trish, Olga said, "I don't want to hurt you, I just want Tim."
"Well, you're not going to get him, you Amazon," screamed Trish. Pulling out a gun from her
purse, Trish aimed it at Olga. Just at the same time, however, Igor and Lorraine, a staff member,
82

were coming out into the hallway. Startled and confused, Trish fired her gun, missing Olga but
hitting Lorraine. Falling to her knees, Lorraine died, instantly.
At this point, Sam grew hysterical. "Why did you do that?" he asked turning to Trish.
"You didn't tell me you had a gun." "You never asked, Bozo. Let's take the kid and split," Trish
responded. With that, Trish turned around and shot a final round of bullets at Olga. Pushing
Sam and carrying Tim, Trish fled into the night. Fortunately for Olga, Trish had missed and shot
instead at a life-sized picture of Olga.
QUESTIONS
Question 1:
When Trish was later caught, she was prosecuted for a number of crimes, among
them the following felony:
Child snatching: "purposely, knowingly, or recklessly taking into one's possession a child with
the intent of depriving that child of his or her caretaker."
The prosecutor argued that under the state's child snatching law, Trish did not have a
right to take possession of Tim. Even though Trish was Tim's biological mother, Tim's legal
caretaker was Olga. In response, Trish does not deny that child snatching is a crime. She claims,
however, that she should be acquitted because she believed that a biological parent had the legal
right to take his or her child out of such a home at any time.
a.
Analyze the elements of the crime of "child snatching" as it could possibly be
interpreted under both the COMMON LAW and the MODEL PENAL CODE.
b.
What is the likelihood that Trish could be found guilty or innocent of child
snatching under both the COMMON LAW and the MODEL PENAL CODE? Include in this
analysis any possible defenses that Trish could have.
Question 2:

Trish was also prosecuted for three other crimes:

a.
Burglary: "breaking and entering the dwelling house of another at night with the
intent to commit a felony therein."
b.
Homicide: "purposely, knowingly, recklessly, or negligently causing the death of
another human being."
c.

Attempted Homicide.

Analyze the likelihood of whether or not Trish would be found guilty or innocent of each
of these three offenses under the COMMON LAW and the MODEL PENAL CODE. In
answering this question, discuss each offense separately and then the possible COMMON LAW
and MODEL PENAL CODE outcomes. Are the outcomes under the COMMON LAW and the
MODEL PENAL CODE similar or different? Are there any other offenses (which we studied)
for which Trish could have been charged under the COMMON LAW and the MODEL PENAL
83

CODE?
Question 3:
What possible defenses under the COMMON LAW and the MODEL PENAL
CODE may Trish have for any of the offenses that you discussed in Question 2?
Question 4:
For what offense or offenses (that we studied), if any, could Olga possibly be
charged under the COMMON LAW and the MODEL PENAL CODE? What defenses could she
have?
Question 5:
For what offense or offenses (that we studied), if any, could Sam possibly be
charged under the COMMON LAW and the MODEL PENAL CODE? What defenses could he
have?
Question 6:
Both Olga and Molly brought rape charges against Igor. Swichigan's rape
statute, however, is very vague, stating only the following: "Rape - (1) It is a felony for a man to
rape a woman." Moreover, Swichigan's legislative history on rape is extremely convoluted,
referring only very broadly to such issues as force, consent, resistance, or the defendant's and the
victim's mental state. For this reason, the Swichigan courts must rely on both the wide range of
COMMON LAW statutes and cases on rape, as well as the MODEL PENAL CODE's applicable
provisions on Sexual Offenses, in order to determine Igor's guilt or innocence with respect to
either Olga or Molly. Analyze the possible outcomes that a Swichigan judge and jury may reach
for Igor's liability with respect to:
a. Olga.
b. Molly.
Question 7:
According to some sources, Molly wasn't really mentally retarded at all; nor was
she eligible to be an OOAA resident. Rather, she was a sophisticated and highly intelligent
undercover agent assigned to investigate OOAA based on rumors that some OOAA residents
were being physically and sexually abused. If this was indeed true, would this change the nature
or outcome of Igor's prosecution for raping Molly under either the COMMON LAW or the
MODEL PENAL CODE? In answering this question, feel free to refer back to any comments or
analysis you may have offered in Question 6.
Question 8:
A number of Swichigan state residents were outraged that either Olga or Igor
could be charged with any crimes whatsoever. They pointed to Olga's and Igor's huge
humanitarian success during the start of OOAA, claiming that these efforts outweighed any
possible harm that either Olga or Igor could have done to a minority of the OOAA residents.
Moreover, they noted that neither Olga nor Igor had a past criminal record and that it was highly
unlikely that the two would ever offend again. On the other hand, the same could not be said for
Trish. For this reason, the residents argued that Olga and Igor should get a relatively reduced
sentence whereas Trish should get a relatively more severe one. Respond to these claims.
-END OF EXAM-

84

DISCUSSION OF FALL 1992 CRIMINAL LAW EXAM

85

Question 1: Child Snatching

A) Offense
(i) act: taking (into one's possession), depriving.
(ii) mens rea: purposely, knowingly, recklessly, intent
(iii) attendant circumstances: a child, caretaker, into one's possession
(iv) result: there is no result element to this crime.
(a) common law: Under the common law, child snatching is a specific intent crime.
The actor must intend to "take into one's possession a child" (the general intent
portion), and further intend to "deprive the child of his or her caretaker" (the specific
intent portion).
(i) act: The statute states that the actor must at least recklessly take into her
possession a child. Trish did take Tim into her possession. She further at least
knowingly took him into her possession.
(ii) Mens Rea:
(1) Trish must have the requisite intent of "purposely
knowingly or recklessly" as to the element of "taking into one's possession
a child." Trish's knowledge that she was going to take Tim into her
possession suggests that the mens rea element of the crime is established.
(2) "intent of depriving": It appears that Trish may have
been purposely or knowingly depriving Tim of his caretaker. The problem
is that we are not told the circumstances of how or why Tim was placed in
OOAA. If Trish voluntarily put Tim in OOAA for care and was informed
that Olga was his caretaker, then the mens rea element of the crime may
well have been established. However, if Trish did not voluntarily put Tim
in OOAA and/or had no reason to know about the care taking
circumstances of his placement, establishing the mens rea element of the
crime may be difficult.
(iii) Attendant Circumstances: (1) Based upon the facts provided, Trish
must have been aware of Tim's status as a child. Since Tim is Trish's son, and he
is an "immature" twelve year old, Trish must have been at least substantially
certain that Tim was a child.(2)"of his caretaker": Again it is unclear whether
Trish was aware that Olga was Tim's caretaker and that she was therefore
depriving Tim of Olga's care. Because there are not enough facts to make this
determination, it is important to argue both sides of the case in analyzing the
outcome.

86

(b)MPC: Under the MPC, the analysis of the statute is similar. Because the mens rea
terms are found at the beginning of the statute, one argument would be that it is logical to
apply which ever one is selected to the whole statute, unless a separate mens rea is
shown. Here the selected mens rea term would be applied until the second mens rea of
intent applies. Alternatively it could be argued that it is illogical or harsh to apply a "high
level" mens rea term, such as purposely, to the attendant circumstances, which may
warrant a less stringent mens rea level, such as recklessly. (This discussion applies to
common law as well.)
B) Defenses
(i) Mistake of Different Law: Subject to certain noted exceptions,
mistake of law is not an excuse to a crime under the common law or the MPC. 47
Mistakes of law can be same or different law mistakes. What concerns us in this
case is a different law mistake. A different law mistake occurs when the
defendant was mistaken concerning the meaning of a law other than the criminal
law for which she is being prosecuted.
(a) Common Law:
(1) Specific Intent: In a specific intent offense, a mistake of different law
is a defense if it negates the specific intent portion of the offense. In such cases,
the mistake of different law is a case-in-chief defense. It is NOT relevant whether
the mistake was reasonable or unreasonable.
(2) General Intent: A different law mistake is not a defense to a general intent
crime whether the defendant's mistake is reasonable or unreasonable.
(3) Here, Child snatching is a specific intent crime. Therefore, in order to
succeed in this defense, Trish must prove that she relied on a different law then
the one she was charged with--here child-snatching--in forming her belief that she
had a legal right to take Tim. Trish will succeed if she proves this whether or not
her mistake was a reasonable one.
Trish could argue that although she was aware that child-snatching is a
crime, she thought that biological parents have a right to take a child out of a
home. While she did knowingly take Tim, she did not intentionally deprive him
of his caretaker, because she thought that as his mother, she was his caretaker. At
common law, this mistake could negate the specific intent portion of the crime--to
deprive Tim of his caretaker--and therefore, the defense could possibly succeed.
(b) MPC: Under the MPC 48 a mistake of law is only an excuse if it negates an element
of the criminal offense. Trish would have the defense of mistake of different law if she
can negate an element of the crime by proving that she did not have the intent to deprive
Tim of his caretaker based on her belief that she had a legal right to take him.
47
48

See MPC 2.02(9).

MPC 2.04(1)(a).

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(ii) Insanity
(a)common Law:
(1) M'Naghten Test: The source of the defense in this test is a mental disease or
defect. It requires complete cognitive impairment (meaning an inability on the
part of the defendant to understand the nature and quality of her acts).
Since Trish was aware that child-snatching is a crime, she may not be
entitled to this defense. On the other hand, not enough facts are provided to
determine the extent of Trish's potential impairment. The available facts state that
she was "apparently a mentally disturbed alcoholic." Tim called her at her
"favorite bar," suggesting that Trish may still have a drinking problem that may or
may not have caused permanent brain damage over the years. Moreover, it
appears that Trish may be an unfit mother as well because Tim is not living with
her. Finally, Trish exhibited extreme and dangerous behavior at the scene of the
crime. An attorney may attempt to use all of this information to establish that
Trish had complete cognitive impairment, although this standard is difficult to
meet.
(2) Irresistible Impulse Test: The source of the defense in this test is
also mental disease or defect requiring complete volitional impairment such that
the defendant had an irresistible or uncontrollable impulse to commit the crime.
On the one hand, it seems here that Trish was fully aware that she was
taking her child, and she therefore would not have this defense. On the other
hand, however, her mentally disturbed and alcoholic condition (described above)
may have contributed to her loss of control. Once again, it is necessary to
consider both sides of the argument in determining whether Trish would be able
to use this defense.
(3) Durham or Product Test, Federal Appreciation Test 49
(b) MPC Test:
This test combines the M'Naghten and Irresistible Impulse tests to
create a combination cognitive-volitional test. MPC 4.01 requires that the actor
substantially lack the capacity to understand or appreciate the criminality of her
conduct (cognitive impairment), and that she substantially lack the capacity to
conform her conduct to the law (volitional impairment).
Trish would face the same problems and prospects with this defense as she
did under the common law. However, she would have the greatest chance of
49

(1) Durham or Product Test: This is a "but for" volitional and cognitive test where the
act is the "product" of the mental disease or defect.
Trish cannot use this defense as it was overruled in 1972.
(2) Federal Appreciation Test: This test requires that the defendant be unable to
appreciate the nature and quality or wrongfulness of her acts due to severe mental
disease or defect.
Trish also cannot use this defense because it applies only to Federal cases.

88

success with the MPC test because the impairment need only be "substantial," not
"complete."
(iii) Diminished Capacity: There are two versions of this defense.
(1) Mens Rea: The mens rea version of this defense
functions as a case-in-chief or true defense allowing the defendant to go
free if she can prove it.
(2) Partial Responsibility: This version serves to reduce a
charge (e.g. from murder to manslaughter) if the defendant can prove the
defense.
The facts state that Trish was a mentally disturbed alcoholic who was
emaciated from years of drinking. Under this defense, if a person drinks alcohol
so long that it begins to affect her mental disposition, she may have this defense.
Since this defense grows out of the heat of passion and provocation defenses,
Trish may claim that she came to get Tim in the heat of passion after being called
from the bar, and was provoked by the idea that her son was being hurt.
(iv) Voluntary Intoxication:
(a) Common Law: Voluntary Intoxication is a case-in chief defense if it negates the
specific intent portion of the crime. Since Trish is charged with a specific intent crime,
she could invoke this defense, and if she were successful, she would probably be guilty
only of the general intent portion of the crime. Because Trish was at a bar when Tim
called her, she may have been intoxicated by the time she arrived to offer help. Note,
however, that the facts are unclear on this issue. Simply because Trish was at a bar does
not mean she was drinking alcohol or, even if she was, that she had consumed a sufficient
amount to make her intoxicated. She may have just arrived when Tim called her.
It may be that under the common law this defense may not be used to defend
against reckless or negligent crimes even if Trish were intoxicated. Becoming
voluntarily intoxicated is considered negligent in and of itself. The MPC makes this
exception more clear.
(b) MPC: Under the MPC, if the intoxication negates the mens rea of a material
element of the crime, voluntary intoxication can be used as a defense (although not for
reckless or negligent crimes).
Again, note that Trish may not be intoxicated. Even if she was, this would not be
a defense if her crimes were considered reckless or negligent.
(v) Necessity
(a) Common law: Necessity is a justification (as opposed to excuse) defense that is
normally used in situations where an emergency forced the actor to engage in criminal
conduct. In order to have this defense, the actor must reasonably believe that a threat of
89

imminent harm or danger, to himself or another, existed. She must also believe that the
only way to prevent this harm was to engage in the prohibited conduct. The actor must
make a choice between the lesser of two evils and may NOT be at fault in creating the
necessity.
Here, based on Tim's call that he was hurt and on Trish's apparent belief that she
immediately needed to save him from Olga, Trish may have this defense. On the other
hand, when Tim originally called Trish, he did not specify how he was hurt and who had
hurt him. Trish's belief that there was a necessity for her to remove Tim from OOAA
may have been unwarranted.
(b) MPC: The MPC also recognizes the "choice of two evils" defense. 50 This defense
can be used under the MPC if the actor can prove that (1) the conduct was necessary to
avoid harm to herself or another, (2) the harm caused was less then the harm avoided, and
(3) there is no legislative intent to exclude the justification.
Question 2: Other crimes
A) Burglary
(i) act: "breaking and entering."
(ii) mens rea: "intent to commit a felony therein."
(iii) attendant circumstances:
(1) "the dwelling house of another, and
(2) "at night."
(iv) result: none.
(a) Common law: Burglary is a specific intent crime because the defendant must have a
general intent to "break and enter" with the further intent to "commit a felony therein."
The statute is silent as to what mens rea term applies to the conduct of "entering a
dwelling house." The court will probably apply a general intent in order to avoid making
this a strict liability crime.
In order to determine what mens rea term to apply, the courts will consider the six
following factors: legislative history, statutory construction, judicial discretion,
assumption of risk, moral/social policy, and the nature of the crime. 51
(i) act: The actor must intend to break and enter.
Here, Trish first knocked on the door and was perplexed when no
one answered. The facts say she then "opened the door and entered." It appears
that the door was not locked and that Trish did not need to use physical force to
enter. However, this is unclear. Furthermore, even if Trish entered via an
unlocked door, she still entered without permission. Such an unpermitted entry
could be sufficient to constitute "breaking and entering." On the other hand, if the
door was open and there was evidence that visitors freely came and left without
need for permission, Trish could argue that her entry did not constitute "breaking
50
51

3.02
For a more complete discussion see supra, the Fall 1991 student exam answer.

90

and entering" in the way those terms are typically interpreted.

(ii) mens rea: The specific intent portion of the burglary statute contains the
mens rea element of "intent." Trish therefore must have the intent to "commit a
felony" in OOAA. Mere recklessness or negligence will not suffice.
As to the specific intent portion of the crime, Trish knew that it was a
crime to take a person out of a caretaker's possession. Therefore, a felony would
be established by assuming that Trish had the intent to commit the crime of childsnatching. On the other hand, if the court accepts Trish's mistake of law defense
that she was not aware that she was engaging in a felony because she is Tim's
biological parent, a felonious intent would not be established.
(iii) attendant circumstances: Since "intent" typically modifies only the conduct
and result elements of the crime, and not the attendant circumstances, Trish need
only be reckless or negligent as to "the dwelling house of another" and "at
night."
It could be argued that Trish was at least reckless that OOAA was a
dwelling house because her son and other people lived there. It is possible that
Trish may also have been at least substantially certain that OOAA was the
dwelling house of another if she knew that it was run by Igor and Olga and there
is no indication that she had partial or total ownership.
An interesting question, however, is whether OOAA, which is described
as a "nursing home," can be considered to be a dwelling house. Trish may try to
argue that OOAA is actually a health care facility which is more like a hospital
than a home. Moreover, even if OOAA was ultimately determined to be a
dwelling house, Trish could argue that a mistake of fact as to the nature of the
house may provide a reasonable excuse to the crime and would negate the mens
rea of the act.
Trish was at least substantially certain that it was night because it was
11p.m. and unless she lives in a place where it is light at that time, she should
have been aware that it was dark out and therefore night.
(b) MPC: Under the offense analysis approach, unless a contrary purpose is plain in
the offense, if one mens rea term is explicit in the statute, it should be applied throughout
the entire statute.
Under the elements analysis approach, if the statute is silent as to which mens
rea term to apply, one would apply the mens rea of knowingly or above to the conduct,
and recklessly or above to the elements. In this case, the mens rea term is in the middle
of the statute, which indicates that the elements analysis is the better choice as the mens
rea term was most likely not intended to modify what precedes it.
(i) act: Breaking and entering is the conduct, so under 2.02(3), Trish would
have to at least knowingly break and enter into OOAA.
Here, Trish's knocking before entering and her apparent opening of an
unlocked door could suggest that she was not knowingly breaking into OOAA.
On the other hand, knowingly entering a premise even through an unlocked door
91

could be sufficient to constitute breaking and entering. Furthermore, it is not

clear whether the door was actually unlocked or whether Trish may have used
some force to again.
(ii) mens rea: "Intent" (to commit a felony therein) is normally equated with
purposely or knowingly under the MPC.
Here, it appears that Trish may have intended to take Tim away from his
caretakers. (But see the above discussion of mistake of law defense.)
(iii) attendant circumstances: Under 2.02(3), reckless or higher is applied to
the attendant circumstances. Therefore, as long as Trish was at least reckless as to
"the dwelling house of another" and "at night," the requisite mens rea is
established. The mens rea is not established if it can be shown that OOAA was
not a dwelling house or, if it was, Trish was not reckless in thinking that it was
because of its health care facilities. (See above explanation under common law).
Prosecutor's additional argument: The prosecution may claim that even if it cannot be
shown that Trish intended to commit the felony of child snatching, she had the intent to commit
another felony within OOAA - murder - because she had a gun. Trish would contend that even
though she had a gun, there was no evidence to suggest that she had the intent to kill Olga or
anyone else in OOAA.
B) Homicide:
(i) act: causing the death
(ii) mens rea: purposely, knowingly, recklessly, or negligently.
(iii) attendant circumstances: another human being
(iv) causation: the defendant's conduct must be the actual (but for) cause of the
homicide, and under the common law it must also be the proximate cause of the
homicide
(v) result: death
(a) common law:
(i) act: Trish pulled the trigger on the gun and appeared to have satisfied the
voluntary act requirement.
(ii) mens rea: "malice aforethought"-- A person acts with malice aforethought
if she kills another person with at least one of the following mental states:
(1) intent to kill a human being
(2) intent to inflict grievous bodily injury to another
(3) extreme reckless disregard for the value of human life
(4) intention to commit a felony during the commission or attempted
commission of a crime from which death results (felony murder).
Here, because Trish aimed the gun at Olga, she may have intended to kill her (1)
or to have inflicted grievous bodily injury (2). Her aiming of the gun also
evidenced an extreme reckless disregard for the value of human life (3). If it can
92

be shown that Trish was committing or attempting to commit a felony - either

child snatching or burglary or both - then she would possibly be eligible for a
felony murder charge (4).
(iii) attendant circumstances: Trish was at least reckless, but most likely
knowing as well, because there was no evidence to suggest that she did not know
that Olga and Lorraine were human beings.
(iv) Causation: A problem arises with causation. In order to satisfy causation,
Trish had to be both the actual and proximate cause of the murder. Since she did
the shooting and the bullet hit Lorraine, she is the actual cause. It appears that
nothing else intervened so that the bullet shot by Trish was also the proximate
cause of death.
(b) MPC: The MPC abolished the term "malice aforethought." A person is guilty of
murder when she kills another human being (1) purposely and knowingly, (2) recklessly
"under circumstances manifesting extreme indifference to the value of human life" (MPC
210.2(1)(b), and (3) with extreme recklessness when that person is engaged in, or is an
accomplice to, the commission, attempted commission, or flight from felonies.
(i) act: Trish will probably be convicted under this test for the same reasons as
under the common law. The "but for" test would be applied in this case. "But
for" Trish's actions, would Lorraine have died when she did? The answer is no,
therefore Trish caused her death.
The MPC also says that if the person killed is different from the one who
was intended she is still guilty of the crime if the harm is the same.
(ii) mens rea: The mens rea analysis is the same here as under the common law.
(iii) attendant circumstances: Once again, Trish must have been at least
substantially certain that Olga and Lorraine were human beings.
(iv) result: The result in this case was Lorrain's death.
C) Transferred intent: Trish's intent to kill Olga (if Trish is found guilty of having that intent)
will transfer to her killing of Lorraine, thereby making Trish guilty of murder even if Olga was
her intended victim. Causation is still proven since Trish is the actual and proximate cause of
Lorraine's death. Intent also transfers under the MPC since Trish purposely and knowingly shot
the gun.
D) Manslaughter: The unlawful killing of a human being by another human being without
malice aforethought.
(a) common law: Under the common law, there are two versions of this defense. (1)
voluntary (intentional killing). Voluntary killing is one which is committed in a "sudden
heat of passion" as a result of adequate provocation. (2) involuntary (unintentional
93

killing). Involuntary killing can either be (a) criminally negligent, or (b) an "unlawful
act" or "misdemeanor" manslaughter.
Trish may be guilty of voluntary manslaughter because by taking out the gun
and firing when she panicked, she acted at least recklessly or with conscious disregard for
a substantial and unjustifiable risk. She may also claim that Olga's threatening size, her
movement toward her and Tim, and Tim's claims that he was "hurt" may have been
sufficient provocation.
(b) MPC: Under the MPC, a person is guilty of manslaughter if she (1) recklessly kills
another human being or (2) kills another human being under circumstances that would
ordinarily constitute murder but the act is committed as a result of extreme emotional
disturbance.
The MPC does not incorporate the common law concepts of "involuntary" and
"voluntary" manslaughter.
(i) Extreme emotional disturbance incorporates two common law
defenses, the defenses of sudden heat of passion, and partial responsibility.
Trish may also be guilty of manslaughter under the MPC because she was at least
reckless in firing her gun. Trish may be able to claim that she acted under extreme
emotional disturbance because she was concerned about her son and anxious to get him
to safety. If she can prove this, she may be able to get her conviction reduced from
homicide to manslaughter.
E) Felony Murder:
At common law, a person is guilty of murder if she kills another person, even accidently,
during the commission or attempted commission, of a felony.
If Trish is guilty of the felonies of either child snatching or burglary, she will be
guilty of murder, under the felony murder rule, for Lorraine's death.
F) Attempted Homicide: Homicide: "purposely, knowingly, recklessly or negligently
causing the death of another human being."
(i) act: causing the death
(ii) mens rea: purposely, knowingly, recklessly, or negligently
(iii) attendant circumstances: another human being
(iv) causation: act actually intended to "cause" the death
(v) result: "death" is required for homicide, but obviously not for attempted
homicide.
(a) common law: Since this is a specific intent crime, there is a higher level of
culpability than that which is required for just the target offense; i.e. purposely or
knowingly. The defendant must intend the conduct and to intend to commit the target
crime. 52 Here the question is: Did Trish attempt to kill Olga, either prior to her killing of
52

Attempt is an inchoate crime, therefore the specific intent portion of attempt crimes guarantees that in

94

Lorraine or thereafter, when she shot at Olga's picture as she was leaving OOAA?
(i) act: Under the common law, the actor must intend to engage in the conduct
with a requisite mens rea of committing the target offense. She also must take a
substantial step in furtherance of the crime which is corroborative of her firmness
of intent to complete the crime. The following tests have been developed to
determine what constitutes a substantial step:
(1) Last proximate act: This test requires that a person do everything
that she believes is necessary to commit the target offense.
Although this is a very rigid test, Trish would still be found guilty
under it because she pulled the trigger, and this is the last act that she
needed to perform to commit the crime.
(2) Indispensable element: This test requires that the defendant have all
those tools that are necessary to commit the crime.
Trish had the tool that she needed to commit the crime: a loaded
and functioning weapon.
(3) Physical proximity: This test requires that a suspect be within
physical and apparent proximity such that she could immediately
complete the crime.
Trish was dangerously close both physically and apparently to
committing the crime as she was physically close to Olga, and she pulled
the trigger.
(4) Unequivocality or res ipsa: The defendant must do something that
shows without a doubt that she intended to commit the crime.
Trish pulled the trigger aiming at what she thought was Olga. This
is sufficient to prove her resolution to commit murder.
(5) Probable desistance: If the defendant passes the point of no return in
the commission of the target offense, she is guilty under the probable
desistance test.
Once again, Trish pulled the trigger.
(6) Dangerous proximity: Dangerous proximity requires both spatial
proximity to the target of the offense, and an assessment of the degree of
apprehension that the particular crime is likely to induce.
Trish was physically close to Olga and homicide creates a high
degree of apprehension.
(ii) mens rea: The mens rea required for homicide is purposely, knowingly,
recklessly, or negligently.
Here, by pulling the trigger, Trish shows her intent. She also had the
the absence of a result, defendants are not punished for those crimes which they did not specifically intend.

95

intent to commit homicide because she aimed at Olga and shot. It seems,
therefore, that her conscious object was to kill Olga. She at the least should have
had the knowledge that her actions were likely to cause death or serious bodily
harm to Olga.
(iii) attendant circumstances: the actor must be reckless or negligent regarding
the fact that she was causing death or serious bodily injury to another human
being.
Trish knew that she shot at Olga because she saw Olga and pulled the
trigger. She was thus at least reckless in that pulling the trigger of a loaded gun
(aimed at another person) would result in death or serious bodily injury.
(iv) Causation: The conduct by the defendant must actually cause serious bodily
harm to the victim. Under the common law, the defendant must be the "but for"
cause of the injuries as well as the proximate cause of the social harm.
Trish was the actual cause of the injury because it was she who pulled the
trigger. Trish was also the proximate cause because there were no intervening
factors between her action and the result.
Here, since Trish actually fired the gun, it appears that the six common law tests indicate
that Trish proceeded far enough to be guilty of attempt. If Trish was really acting in self defense
though, it will be hard to prove that her purpose was to kill Olga.
(b) MPC: The attempt requirement under the MPC is that with the requisite intent, the
defendant purposely take a substantial step, corroborative of her criminal purpose, in the
commission of the target offense such that she has intent for both the conduct and the
outcome. Therefore, the defendant must first have the requisite mens rea, and further
take a "substantial step" in the commission of the crime.
(i) Act: The MPC determines what constitutes a "substantial step" toward the
commission of a crime in 5.01(2) a-g. It does not use the six common law tests.
Trish took a substantial step in the commission of the crime by pulling the
trigger.
(ii) Mens rea: Under the MPC, the actor must act purposely, knowingly,
recklessly or negligently. Intent to cause serious bodily harm is not enough.
Trish may lack the requisite mens rea as she may not have intended to use
the gun to kill Olga. The facts are unclear on this issue.
(iii) attendant circumstances: The actor must be reckless or negligent toward
the attendant circumstance of "another human being."
Trish was at least reckless toward Olga being another human being. Even
though she shot at a picture, she intended to shoot Olga who is another person.
Therefore, that intent will transfer to her shooting Lorraine.
(iv) causation: The MPC analysis of causation does not require "proximate
cause" as the common law analysis does. It requires only that the actor be the
96

actual cause under the "but for" test, and that the act was intended to cause the
type of injury that it did.
Trish was the actual cause of Lorraine's death because it was the bullet
from her gun that killed Lorraine.
G) Conspiracy: Agreeing with another person or persons that they or more than one of
them will engage in conduct that constitutes such crime or an attempt or solicitation to
commit such crime; or agreeing to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to commit such crime."
(i) act: agreeing
(ii) mens rea: a meeting of the minds
(iii) attendant circumstances: another person or persons
(a) common law: Under the common law, conspiracy is a specific intent crime. A
person must intentionally make an agreement with the further intent that its objective be
carried out. Since at common law, the object of the act need not be criminal, Trish will
probably have no defense when she argues that she did not know that child-snatching was
illegal.
(i) act -- "agreeing": at common law, the crime of conspiracy is complete as
soon as the actors make the agreement.
The facts state that "Tim convinced Trish and her friend Sam to agree that
they would come and get Tim out of OOAA." It could be argued that because
Trish and Sam agreed to go to OOAA to get Tim, they thereby conspired to
commit the crime of child-snatching. Since Trish and Sam do not appear to have
agreed to break-in order to get Tim, they will most likely not be guilty of
conspiring to commit the crime of burglary. On the other hand, there is no
evidence to suggest that Trish and Sam agreed to the act or crime of "child
snatching," or the method that Trish ultimately used to get Tim.
(ii) mens rea--"a meeting of the minds": A bilateral agreement is required
under the common law to satisfy the requirements of this crime.
It could be argued that by planning to go and take Tim from OOAA, there
is a meeting of the minds between Trish and Sam. Once again, Sam may want to
argue that no such agreement was made on his part. If this argument is
successful, it would negate Trish's culpability because unilateral agreements are
not sufficient to constitute conspiracy under the common law.
(iii) attendant circumstances--"another person or persons": Trish was at least
reckless in the notion that she was conspiring with another person, Sam.
(a) MPC:
(i) act: Under 5.03 an actor must "purposely" engage in the conduct of
"agreeing."
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When Trish and Sam apparently agreed to go and take Tim from OOAA,
the conspiracy was complete.
(ii) mens rea: The conspirators must have the purpose of facilitating the
commission of the target offense, or of committing the target offense.
As long as Trish alone had the purpose of conspiring, she would be guilty
because under the MPC, only a unilateral agreement is necessary. Therefore, even
if Sam did not agree to help to get Tim, Trish would still be guilty of conspiracy.
In this case, conspiracy will merge with the target offense, child-snatching,
because Trish cannot be convicted of conspiring to commit child-snatching if she
is convicted of the crime of child-snatching. She will only be convicted of childsnatching.
(iii) attendant circumstances: The requirements are met for the same reasons
here as under the common law. In addition, the MPC requires only that one actor,
here Trish, have the mens rea to conspire with one or more persons even if those
other persons do not intend to conspire with her. Therefore, only Trish need have
intended to commit the crime.

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Question 3: Defenses
A) Burglary
(i) Intoxication: Trish may use intoxication as a defense against the specific
intent portion of burglary under the common law if she is able to negate the mens
rea required to commit the crime.
Trish may have been intoxicated since she was in a bar before her alleged
burglary. She can argue that her intoxication caused her to be unable to form the
requisite mens rea required for the second part of the offense (intent).
On the other hand, voluntary intoxication is no defense to the crime if
Trish was reckless in getting drunk. Furthermore, the evidence is unclear
concerning whether or not she was in fact intoxicated.
(ii) Necessity: This defense could possibly be effective under both the common
law and the MPC. If Trish can prove that her alleged breaking and entering was a
lesser evil then allowing Tim to be "hurt" again (as far as we know, she does not
know that he is being sexually abused), she may be able to win on this defense.
(iii) Mistake of law: Mistake of Law: (see above questions for a fuller
description). If the court believes that Trish thought that she had the legal right to
take Tim, she will be entitled to this defense. As a result, the "intent to commit a
felony therein" element of burglary would not be satisfied.
B) Homicide and Attempted Homicide:
(i) Self Defense: Self defense is a justification defense. 53
(a) common law: Under the common law, the defendant must reasonably believe that
deadly force is immediately necessary to combat imminent danger. Furthermore, the
defendant may only use that force which is necessary to repel the attack given her
physical traits. Also, a person who is the initial aggressor may not use this defense unless
she retreats and the victim renews the attack, thereby making the victim the aggressor.

53

In justification defenses, conduct that would normally be considered criminal is socially acceptable
given the circumstances because the act is justified.

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Since Lorraine was never an aggressor, Trish must prove that deadly force was
necessary to protect herself from imminent harm from Olga, and that Olga was the initial
aggressor. Olga is described as a person with an "aggressive personality and a massive
body build," while Trish is described as an "emaciated woman" who paled in comparison
to Olga. Trish may claim that firing the gun was justified since Olga "came toward her."
On the other hand, the prosecution would argue that Olga verbally manifested no desire
to harm Trish by saying "I don't want to hurt you...." Because Olga made this statement,
Trish may have difficulty using self-defense because she will most likely be found to
have been the initial aggressor. The court may also consider Trish the initial aggressor if
it determines that Trish committed a burglary and that her mere presence in OOAA was
therefore unlawful.
b. MPC: Under the MPC, the defendant must feel that deadly force was immediately
necessary. Since Trish was the initial aggressor, and for the above reasons, Trish may
also have problems with this defense.
(ii) Insanity: (see above for a more complete description).
Because Trish was "startled and confused," and because of her 'mental
illness' from years of drinking, she may be able to prove that she could not act
rationally given the situation. Trish will only be entitled to this defense if she
passes one of the above tests which are proof of insanity.
(iii) Diminished capacity: (see above). This defense would be a good one for
Trish because she can either get off or get a reduced sentence if she can prove that
her alcohol problem prevented her from forming the requisite intent. This would
be a preferable plea relative to insanity because with an insanity plea she could be
locked up for a period of time exceeding that which she could face if she plead
guilty to the above offenses.
(iv) Impossibility: Impossibility is a defense to inchoate crimes.
Common Law: There are three types of impossibility defenses under the common law:
a. Factual: When a defendant's conduct would have been a crime had the
facts been as she believed them to be. Factual impossibility is not a
defense under the common law.
Here, Trish may attempt to argue impossibility because it is not
possible to kill a photograph. However, had the facts been as Trish
believed them, she would have been shooting at Olga, not Olga's picture.
Therefore, she cannot use this defense.
b. Legal impossibility: If the defendant does an act that is lawful but that
she believes to be a crime, she may use this defense.

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Trish could try to use this defense by claiming that it is not illegal
to shoot at a poster. However, legal impossibility looks at what the
defendant thought she was doing. Trish thought she was shooting at Olga,
which is a crime. Therefore, legal impossibility is not a workable defense
for her.
c. Hybrid Legal Impossibility: This defense, which has been abolished in
most jurisdictions, attempts to define whether the act falls closer to factual
or legal impossibility. If the act is closer to factual impossibility, the
defendant will be convicted. If the act is closer to legal impossibility, the
defendant will be acquitted.
Trish's act falls closer to being factually impossible because her
mistake concerned the fact that what she saw was not Olga in person but
Olga's likeness in a photograph. Regardless, the cases and hypotheticals
in class demonstrated that this distinction is often only the flip side of the
same coin. Therefore, both sides can always be argued.
MPC: Section 5.01 of the MPC eliminates factual impossibility and provides that where
an actor attempts to commit a target offense that would constitute a crime had the facts
been as she believed them to be, then she will be guilty of attempt. Under this theory,
Trish will be guilty of the attempted homicide of Olga.
(v) Intoxication: If Trish is guilty of homicide, the MPC may recognize partial
diminished capacity as a defense and may reduce this charge to manslaughter.
Under the MPC, voluntary intoxication would have to negate the mens
rea of the crime. At common law, however, intoxication would not be a defense
because homicide is a general intent crime.
C) Attempted Manslaughter: A question exists as to whether the MPC recognizes a crime of
attempt with a reckless or negligent state of mind. If Trish was reckless is her formation of a
need for self-defense, and acted recklessly, she could be charged with attempted manslaughter as
she acted with the requisite mens rea and took a substantial step in commission of the crime.
D) Voluntary Manslaughter: At common law because Trish may have been adequately
provoked, she may have a reduced charge of voluntary manslaughter. Provocation has become
increasingly more subjective and now allows for the characteristics, such as sex and age of the
defendant, to be taken into account. Since Olga was much larger then Trish, this disparity may
be factored into the outcome.
Under the MPC, Trish would argue that extreme emotional distress caused her to shoot
at Olga. This argument is a very subjective one and could bring a murder charge down to a
charge of voluntary manslaughter.

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Question 4
1. Offenses
A) Rape
(i) act: "having sexual intercourse"
(ii) mens rea: "with knowledge that she did not consent"
(iii) attendant circumstances: "with a woman," "not one's wife"
(iv) result: intercourse
(a) Common Law: Rape is a general intent crime. Given the elements of the typical
common law rape statute provided above, Olga could not be guilty of raping Tim.
(i) act: It appears that under most common law jurisdictions, a woman cannot
rape a man. Therefore, Olga cannot be convicted of rape under the common law.
Strict liability: In statutory rape cases, the strict liability standard is often
applied for children under ten. Since Tim is age twelve and male, strict liability
will probably not apply.
(ii) mens rea: The mens rea term, knowledge, is named in the statute.
If Olga could be guilty of raping Tim, she would have to have knowledge
of Tim's non-consent. Since Olga used fraud to induce Tim into sex, it is possible
that his non-consent may be applied.
(iii) Attendant circumstance: Obviously the attendant circumstances do not
apply here because Tim is neither a woman nor can he be a wife.
(b) MPC:
(i) Act: Here also, a woman cannot rape a man. Therefore, Olga would not be
guilty of raping Tim.
(ii) Mens rea: The term knowledge is supplied by the statute. Since this term
falls in the middle of the statute, 2.02(3) element analysis is appropriate and the
mens rea term of recklessness or better would apply to what precedes the mens
rea term. Applied to the facts, the results would be the same as above.
(iii) attendant circumstances: same as above.
Prosecution: If this crime occurred in a jurisdiction where the rape of a man is possible,
the prosecution could characterize the intercourse as having occurred by fraud in the factum
since Olga told Tim that his penis was a "caboose" and that her vagina was a "tunnel."

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Fraud in the factum occurs when the deception relates to a fundamental aspect of the
conduct for which there was consent. Consent in this case is not legally recognized because
what occurred is not what was consented to. Here Tim consented to put his "caboose" into a
"tunnel," not to put his penis into Olga's vagina.
B) Deviate Sexual Intercourse by Other Imposition:
(a) common law: Although we did not study common law cases of deviate sexual
intercourse by other imposition, it can be assumed that comparable common law cases
and statutes for this crime exist.
(b) MPC: Under 213.2(2) of the MPC, Olga may be guilty of deviate sexual
intercourse by imposition. This appears to be a gender neutral provision because it
refers to the words "a person" in comparison to other Model Penal Code provisions (e.g.,
213.1) which refer to the words "a male." The fact that "he" is used under the subparts
of 213.2 may be an oversight on the part of the drafters of the Model Penal Code,
particularly since this gender designation is not clarified in the Model Penal Code
Commentaries. For the purposes of this analysis, it will be assumed that "he" includes
both males and females since the provision initially refers to "a person."
It is possible that Olga could be guilty of at least one of the three subparts to
213.2(2), although 213.2(2)(c) seems most applicable. Regardless, it is clear from the
facts that Olga and Tim engaged in deviate sexual intercourse, since Olga performed
fellatio on Tim ("intercourse per os") and Tim penetrated Olga's vagina.
According to 213.2(2):
"A person who engages in deviate sexual intercourse with another person, or
who causes another to engage in deviate sexual intercourse, commits a felony
of the third degree if:
(a) he compels the other person to participate by any threat
that would prevent resistance by a person of ordinary
resolution.
It is unclear whether Olga "compelled" Tim to have intercourse "by any threat."
Although, at the end of their time together Tim stated that "he didn't like this game," it
appears that he went along with Olga's wishes without her having to threaten him to do
so. The prosecution may have a difficult time convicting Olga of this provision.
(b) he knows that the other person suffers from a mental
disease or defect which renders him incapable of appraising
the nature of his conduct.
Tim is described as "immature." It seems reasonable as well to assume that a
twelve year old today would understand that the acts Olga wanted to engage in
constituted sexual intercourse. Whether or not Tim's immaturity would be considered a
"mental disease or defect," however, is open to question. The facts do not indicate the
severity or the degree of his immaturity, or the extent to which it would impair his
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appraisal of the nature of his conduct. Both sides of the argument would have to be
considered.
(c) he knows that the other person submits because he is
unaware that a sexual act is being committed upon him.
The facts suggest that Olga is most likely to be found guilty of this provision
because it appears that she successfully convinced Tim they were playing trains.
C) Corruption of Minors and Seduction: Here again it may be assumed that the common law
is consistent with the Model Penal Code with regard to corruption of minors and seduction
although we have no specific cases on this issue. Given the facts of this case, Olga could be
guilty of three of the four provisions under 213.3: (1) Tim less than 16 years old and Olga, who
is thirty-six, is at least 4 years older than Tim (213.3(a)); (2) Tim is less than 21 years old and
Olga is his guardian or otherwise responsible for general supervision of his welfare (213.3(b));
(3) it could be argued that Tim is detained in an "other institution" and that Olga has supervisory
authority over him (213.3(c)).
D) Sexual Assault: It may be assumed that the common law is consistent with the Model Penal
Code with regard to sexual assault although we have no specific cases on this issue. Given the
facts of this case, a number of provisions under 213.4 may apply.
According to 213.4:
"a person who has sexual contact with another not his spouse, or causes such
other to have sexual conduct with him, is guilty of sexual assault, a
misdemeanor, if:
(1) he knows that the contact is offensive to the other person;
or
(2) he knows that the other person suffers from a mental
disease or defect which renders him or her incapable of
appraising the nature of his or her conduct;
(3) he knows that the other person is unaware that a sexual act
is being committed;
(6) the other person is less than [16] years old and the actor is
at least [four] years older than the other person; or
(7) the other person is less than 21 years old and the actor is his
guardian or otherwise responsible for general supervision of
his welfare; or
(8) the other person is . . . detained in a hospital or other
institution and the actor has supervisory or disciplinary
authority over him.
Olga engaged in sexual contact with Tim, which is defined as "any touching of the
sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual
desire."
NOTE: These provisions begin with the words "any person" but proceed to refer to "he."
Notice, however, the disparities in the gender references to the victim. Initially, the provision
refers to "him," but then switches to "him or her," although the word "his" is consistently used to
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indicate what that person possesses (e.g., "his guardian"). For this reason, it appears safe to
assume that both the perpetrator and the victim could be either male or female and that at the
time the Model Penal Code was written, the drafters were not familiar with how to approach this
issue.
2. Defenses:
(a) Diminished capacity: Olga may claim that due to her failing love affair with Igor,
she was not in her 'right mind.' Under the MPC, the courts will probably not accept this
defense.
(b) Impossibility: Under the common law, since a woman can not rape a man,
Olga may claim legal impossibility for this crime. Furthermore, Swichigan (the
state where this occurred) defines rape as a man raping a woman.
(c) Insanity: Olga could try to claim that the failure of her love affair with Igor, and his
apparent relationship with Molly, made her crazy. If she succeeded in this defense
however, she could spend quite a bit of time locked-up. It would therefore not be a
logical option.
Question 5
1. Offenses
A) Conspiracy: (See definition above). Sam may be guilty of conspiring to snatch a child. At
common law, one who conspires to commit a crime need not do any further act in furtherance of
the crime, although Sam may have by going to OOAA with Trish.
Sam may also be guilty under the common law Pinkerton Doctrine of any and all
foreseeable consequences of the child snatching. Murder may or may not have been foreseeable.
Under the MPC, conspiracy merges with the target offense. Therefore, if Sam is guilty
of conspiring to child snatch or to burglary, he will not be separately guilty of conspiracy.
B) Child snatching: (See above). Sam may also be guilty of child snatching even if Trish is
innocent of the crime. Since there is no evidence in the facts that Sam is Tim's father, he would
not have the defense of mistake of different law, therefore he could be found guilty of child
snatching.
C) Burglary: Sam's guilt for burglary would be analyzed the same way as Trish's was. He may
or may not be guilty of burglary even if he is not guilty of conspiracy. Sam could be found
guilty of burglary by entering with Trish even if he did not conspire to do so.
D) Complicity: Sam could also be found guilty of child snatching or burglary if it was
determined that he was Trish's accomplice, either under the common law or the Model Penal
Code. Accomplice liability could also make Sam eligible for felony murder, discussed below.

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E) Felony-murder: If Sam is found guilty of any of the above three crimes (conspiracy,
burglary, or child snatching), then he could be found guilty of felony murder. As the definition
of conspiracy states, under the Pinkerton Doctrine, Sam will be guilty of all foreseeable
consequences of his crime. Sam's guilt may depend on how freakish it was that Trish had a gun
and fired it, and if he knew about the gun.
2. Defenses:
A) Conspiracy, Child Snatching, Burglary, Accomplice Liability
The defenses for these offenses or prerequisites to liability (e.g., accomplice liability)
depend on the possible alternative interpretations of the facts discussed above. Simply present
the counter-arguments in each case.
B) Felony Murder
(a) Causation: Causation has a limiting doctrine with four theories behind it:
(i) "but for"
(ii) "proximate" (foreseeable consequences)
(iii) non-felon killings
a. agency theory (excludes all killings by a non-felon) (majority rule):
Under this theory, Sam will probably not be guilty because Trish seems to
have been acting on her own in terms of the attempted homicide and
murder. He may be guilty under the agency theory of child-snatching.
b. proximate cause theory (includes killings by non-felon)
(iv) excludes results of "gross and bizarre" intervening acts: This is Sam's
best defense. If he can prove that Trish's shooting at Olga and killing Lorraine
was a grossly bizarre intervening act because he did not know that Trish had a
gun, and that they never agreed to use such means to get Tim, he may be entitled
to this defense.
(b) Common law: Felony murder is controversial because of its strict liability status. It
is irrelevant whether Sam had no intent to kill if it can be determined that he was guilty of
an underlying felony.
(c) MPC: Under the MPC, Sam could argue that he was unaware that Trish had a gun
and would shoot. Therefore, he would try to rebut the presumption of extreme
recklessness.
More importantly, the MPC limits its felonies and child-snatching is NOT a
felony that triggers the MPC's modified felony murder rule. Therefore, under the MPC,
Sam would not be guilty of this crime.

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Question 6
A) Olga: Rape
A thorough discussion of rape touches on four issues:
FORCE, RESISTANCE, CONSENT, AND MENS REA.
(a) common law: At common law, rape is a general intent crime. Because Swichigan's
rape statute and legislative history are vague, it will be difficult to determine the crime's
particular mens rea. It can be inferred that under the common law rape is vaginal
penetration of a woman by a man since few jurisdictions consider penetration per os or
per anum as rape. Rape is often defined as sexual intercourse by a man with a woman
without her consent 1) forcibly, 2) under certain forms of fraud, 3) if she is unconscious,
or if she is otherwise unable to give her consent.
If force is the main ingredient in the rape, Igor will most probably not be guilty
of rape as he used no force or threat of force to compel Olga to have sex with him. Given
Olga's size as compared to Igor's, she could simply have thrown him off of her in order to
resist.
Since some courts still require that a woman physically resist a rape, Olga may
not be able to prove that Igor raped her. Conversely, Igor may claim that Olga's failure to
resist gave him reason to believe that Olga was consenting to intercourse. In Olga's
defense, she told Igor that she did not want him, she did turn away from him when he
climbed on top of her, and she did not move during the act. Under Berkowitz, however,
verbal resistance was insufficient to prove rape as the statue was defined in terms of
force, not consent.
Under MTS, Igor could be guilty of rape because Olga did not affirmatively give
her consent and no more force is needed than penetration. In spite of Olga's statement
that she did not want him, Igor penetrated her. Moreover, based on the totality of
circumstances, the estranged relationship between the two, and Olga's reaction to Igor,
the comment that she did not want him was probably enough.
(b) MPC: Under the MPC, Igor would most likely not be convicted of rape. The MPC
requires use of force or threat of death or serious bodily injury, extreme pain or
kidnapping to be inflicted on anyone in order for the victim to show that she did not
consent. None of the above took place here. Igor would also not get rape in the second
degree because he did have previous sexual relations with Olga.
(c) Sexual Assault: Igor could be convicted of sexual assault if the prosecution can show
that his touching Olga intimately was offensive to her. See 213.4(1).

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B) Molly: Rape
(a) Common Law: The question in this case revolves around whether Molly could
consent at all because she was retarded. The courts are split on this issue. Normally it
depends on how badly she is mentally impaired.
Molly took her clothes off no questions asked. She did not object until she was
asked to allow Igor to enter her and then she became upset ("I don't want the candy
anymore. I want you to go away"). It seems from the facts that Molly did not know at
first what she was consenting to - sex or the candy.
In addition, because Igor is Molly's guardian, the court may be swayed to find
him guilty.
(b) MPC: No apparent force was involved in the rape and there was no evidence to
suggest that Molly had previously allowed Igor sexual liberties. Therefore it would be
difficult to find Igor guilty of rape of the first or second degree. Igor may be found guilty
of Gross Sexual Imposition, 213.1(2)(b), a third degree felony, if it can be determined
that he knew Molly "suffers from a mental disease or defect which renders her
incapable of appraising the nature of her conduct." The facts state that "Olga and
Igor had been informed that Molly, who was eighteen, was residing at OOAA because
she had become brain damaged." In his defense, Igor could claim that although he knew
Molly was brain damaged, he did not realize that her impairment constituted a "mental
disease or defect which renders her incapable of appraising the nature of her conduct."
Arguments on both sides of this issue would have to be examined. New Jersey's Glen
Ridge rape case could serve as a case in point.
Alternatively, arguments could be made that Igor could be liable under other
Model Penal Code provisions that were discussed in Question 4 concerning Olga and
Tim: Deviate Sexual Intercourse by Other Imposition 213.2(2)(b)(c); Corruption
of Minors and Seduction 213.3(b)(c); Sexual Assault 213.4(1)(2)(3)(7)(8).
Question 7: Change of Facts
(i) Fraud in the inducement: If Molly was not mentally impaired, Igor may not
be guilty of rape because fraud in the inducement is not rape; Molly, in spite of
her hidden agenda, would be found to have consented to intercourse by agreeing
to have "candy." Although she said that she did not want any more candy after
Igor had penetrated her, there is no such thing as post-penetration rape.
(ii) Impossibility:
a. common law: Although Igor intended an illegal end - sex with a woman who suffers
from a mental disease or defect - the fact that Molly was not mentally impaired makes his
act a factual impossibility. However, factual impossibility is not a defense to an
attempted crime. The prosecution would argue that if the facts were as Igor believed
them to be, he would have been having sex with a mentally impaired woman. Therefore,
Igor can still be convicted of attempted Gross Sexual Imposition; attempted Deviate
Sexual Intercourse by Other Imposition; attempted Corruption of Minors and
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Seduction; or attempted Sexual Assault.

Under the common law, by vaginally penetrating Molly, Igor fulfills all the tests
for attempt.
b. MPC: The MPC also does not recognize the defense of factual impossibility for
attempted crimes. Again the prosecution would argue that, if the facts were as Igor
believed them to be, he would be having sex with a mentally impaired woman.
Therefore, Igor could still be convicted of attempted Gross Sexual Imposition
213.1(2); attempted Deviate Sexual Intercourse by Other Imposition
213.2(2)(b)(c); attempted Corruption of Minors and Seduction 213.3(b)(c); or
attempted Sexual Assault 213.4(1)(2)(3)(7)(8).
Question 8
Igor and Olga
(a) Retributive theory: It does not matter if Olga and Igor never committed any
crimes in their past. Under the retributive theory, they need to get their "just deserts;" i.e. to
be punished for their crimes. If they are convicted, it does not matter if they were never
convicted before or if they were really good people (except for a death sentence where prior
convictions can act as an aggravating circumstance).
(a) Utilitarian theory: Under the utilitarian theory, a person must be deterred from
committing future crimes. Punishment is meant to serve both a general and specific deterrent
effect.
General deterrence operates according to the theory that if people see how defendants
(here Igor and Olga) suffer for the crimes that they commit, they will be deterred from
committing the same crimes.
Specific deterrence is designed to prevent the defendants from committing the same or
other crimes again.
Trish
The same analysis would apply to Trish. Also, Trish would have a number of claims to
fight a possible death sentence for felony murder, or any other sentence that outweighs her
crimes. Such mitigating factors include the fact that Trish is an alcoholic who has become
mentally impaired. Also, she has a son and her illegal acts were not the product of a criminal
intent.

109

Student Answer to Fall 1992 Criminal Law Exam

(Footnotes refer to Professor Denno's comments).

110

Question One
Child Snatching
In order to analyze the statute it must be split up into its relevant elements:
Conduct- taking into one's possession modified by purposely/knowingly/or recklessly
Mens Rea- intent of depriving . . . her caretaker
Attendant Circumstances- a child
Common law-(CL)
This is a specific intent crime. The intent being to "deprive the child of . . . caretaker."
Trisha must purposely, knowingly or recklessly take a child into her possession. She was at least
substantially certain (reckless) that by going to OOAA to get Tim she would be taking him into
her possession. She was also certain Tim was a child because he was 12 and her son. The second
part of the statute requires that Trisha have the intent (which can mean either purposely or
knowingly) to deprive the child of his or her caretaker. If Trisha voluntarily gave Tim over to
OOAA so that they would care for them she must have been certain that they were his caretakers
and by going to OOAA to get Tim she was taking Tim. This is a specific intent crime. If it were
a general intent crime Trisha would not have a defense because mistake of different law is never
a defense to general intent crimes.
Trisha must show that she relied on a different law then the one she is charged with (child
snatching) in forming her belief that she had a legal right to take Tim. This is a defense whether
Trisha's belief was unreasonable or reasonable. If Trisha can show she had such a belief then
she did not have the specific intent of depriving Tim of his caretaker and would not be guilty of
child snatching.
Model Penal Code - (MPC)
Under the MPC, the analysis of the statute is the same. Because the mens rea is found at
the beginning of the statute it is logical to apply it to the whole statute unless a separate mens rea
is shown. Here the mens rea would be applied until the second mens rea of intent applies, it is
logical under 2.02(4). Also it is not illogical or harsh to apply "recklessness" to attendant
circumstances. (This discussion applies to the common law as well).
Trish would have a defense of mistake of law. This negates an element of the crime. The
MPC does not distinguish between specific and general intent. Again as in CL, if Trish can show
she did not have the intent to deprive Tim of his caretaker based on her belief that she had a legal
right to take him she would have a strong defense. The prosecutor could argue that there is no
such law. However, courts have allowed the defense even if this were true (i.e. case where tenant
mistook a property law which allowed him to rip up floor boards he installed).
Insanity
Trish could argue a defense of insanity. The facts show she was emancipated from years
of drinking and a mentally disturbed alcoholic. Under the defense of intoxication if a person has
drunk alcohol for a long period of time and it adversely effects her mental disposition she may
than have a defense of insanity.

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CL
There are several tests. The M'Naghten test is the majority test and it says if a person is
unable to know the nature and quality of her acts or the wrongfulness of it she is entitled to an
insanity defense. The test requires complete impairment. This is a cognitive test. Because Trish
knew of the child snatching crime the prosecutor can argue she knew the wrongfulness.
The second test is the Irresistible Impulse test. This is a volitional test and requires that
the defendant be unable to control his actions (i.e. have an irresistible impulse). The test also
requires complete impairment. As to this crime, it seems Trish knew she was taking the child so
she was not out of control.
The third test is the Durham test. It is a "but for" test, "but for" Trish's mental illness
would she have committed the crime. This is a closer call but Trish will be unable to use it as it
has been overruled and hence no longer used.
The fourth test is the Federal Appreciation test which provides if the defendant can
show by clear and convincing evidence that the defendant on the present occasion could not
appreciate the nature or quality or wrongfulness of her act then she is entitled to a defense. Trish
could not use this defense because it applies to federal cases only. Due to the type of crime here
and Trish's admission insanity could probably not be proved.
MPC
The MPC combines M'Naghten and the Irresistible Impulse and comes up somewhere in
the middle. It is a volitional and cognitive test. It requires that the defendant only appreciate the
wrongfulness (moral) or criminality (legal) of her actions. (In CL there is a split as to whether
wrongfulness applies to legal or moral wrongs. The MPC fixes this by using the 2 above terms).
The MPC only requires substantial impairment. Here, Trish would again have trouble for the
same reasons as under the CL.
Voluntary Intoxication
CL
Under the CL, a defendant is allowed a defense in a specific intent crime if intoxication
can negate the intent. Here, Trish was at a bar and may nave been intoxicated enough to negate
the specific intent portion. Although, since she admitted she knew of the crime this may also
prove difficult.
MPC
Under the MPC, if the intoxication negates an element the defendant can get off.
Here, as with insanity Trisha's admissions do not have the required mens rea due to her
diminished capacity she can get off. Diminished capacity is like insanity although it is not as
severe. Something like PTSD or PMS have been used as diminished capacity defenses. Here,
Trish can claim due to her mental illness from drinking she had diminished capacity. But she
knew she took the child and believed she had a legal right to take him. Therefore, it will be
difficult to invoke this defense.

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Diminished Capacity
CL
This is a very difficult defense to prove and courts do not like it. Theoretically, if one can
show diminished capacity they can get off. Since courts do not like this defense they will usually
only allow it to negate specific intent crimes. Here, Trish is charged with a specific intent crime
so the analysis above would apply. Diminished capacity can also be used as a partial
responsibility defense. The defendant can claim due to his diminished capacity he deserves a
lesser charge. This would apply to first degree felonies. Here Trish is charged with a lesser
felony, and would have a hard time invoking this defense. Diminished capacity can also be used
as an excuse, much like insanity but is very rare. The policy is why let someone off if they are
"almost" insane and institutionalize the insane person for a long time. It is an attempt by defense
attorney's to get their clients off.
MPC
Under the MPC, diminished capacity can be used to negate the mens rea. As under CL,
Theresa will not invoke this defense at this point.

Question two
Other Offenses:
Burglary
Divide the statute as follows:
Conduct- breaking and entering
Attendant Circumstances- the dwelling house; of another; at night
Mens rea- with the intent to commit a felony therein
CL
The conduct has no mens rea to modify it, Yermain says if a mens rea is found in the
middle of a statute that doesn't mean it will apply to what precedes it. Morisette says because a
statute may be silent at times doesn't mean there is no mens rea or a strict liability one.
Therefore, it is clear we must find some mens rea. Usually a court will apply the following six
standards:
1. legislative history- They will look at the legislative history and try to determine what
the mens rea was at CL or what the legislature intended to apply.
2. Statutory construction- How is the statute constructed? Any commas? Where is the
mens rea?
3. Judicial discretion- The judge will have a lot of discretion.
4. Assumption of the Risk- Did the defendant by his acts assume the risk that what he
did was legally wrong.
5. Moral/Social Policy- Did the defendant do something immoral? Something we want
to discourage?
6. Nature of the crime- Is it a specific or general intent crime? Is the punishment high?
If so may we apply purpose.

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After considering these factors a court will apply a mens rea. Usually intent is applied to
"breaking and entering" and reckless or negligent to attendant circumstances. Here, it is unclear
whether or not Trisha intended to break and enter. She knocked on the door first, if someone had
answered she may have requested to see Tim. Especially because she was perplexed that no one
answered. She used the front door and it was open. Therefore she did not actually "break in". She
was at least substantially certain that it was "a dwelling house" because her son lived there. She
was at least substantially certain it was "of another" since there was no indication she was part
owner. She was at least substantially certain that it was "at night" since it was at least 11:00 p.m.
and unless she lives in a place where it is day time even though it was dark out.
As to the specific intent portion, she knew it was a crime to take a person out of
someone's possession (and if we accept her defense to child snatching) unless the defendant was
a biological parent. She may not have known it was a felony, maybe a misdemeanor. It would be
hard to prove burglary because she didn't really "break in" the specific intent portion might also
be difficult to prove because she thought she had a legal right to take Tim. Therefore, she would
not be committing the felony of child snatching.
MPC
Under the MPC, the statute break-up is the same. However the MPC provides guidance to
attach a mens rea to the elements when there is more. Under the MPC, if there is one mens rea it
should be attached to the entire felony. If there is no mens rea, purposely or knowingly should be
attached to conduct and purposely, knowingly, or recklessly to all other elements. Here, there is
attempt. One would apply intent to the whole statute (there are no commas separating intent, if
there were you could not apply it to the whole offense). However, it seems illogical to require
knowledge of an attendant circumstance so reckless might be applied. Here the reasons Trish
probably couldn't be convicted are the same as under the CL. Note, the prosecution might say
that Trish had the intent to commit the murder inside. This is weak, although she had the gun she
probably didn't intent to kill Lorraine.
Homicide
Split the statute as follows:
Conduct- causing
Mens Rea- purposely, knowingly, recklessly, or negligently
Attendant Circumstances.- another human being
Result- death
Act- defendant must through her actions cause the death
CL
Here there is no problem determining the mens rea. Did Trish cause Lorraine's death
purposely, knowingly, recklessly, or negligently? Recklessly means that you are substantially
certain you are taking a risk but you take it anyway. Negligently means you take a risk that you
should have been aware of. Trish was at least negligent because she shot a gun in the house and
should have been aware that someone might get shot. In fact she was probably reckless. If you
shot a gun you probably are certain there is a risk. Because she was aiming at Olga, she probably
intended to kill her and that might even have been her objective (it probably was). Then she was
also acting with knowledge and purpose.

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The problem arises with causation. Does it matter that Lorraine died and Olga didn't? In
order to satisfy causation Trish had to be the proximate and actual cause. She did the shooting
and the bullet hit Lorraine. She is the actual cause. Nothing intervened so the bullet was the
proximate cause. Lorraine died instantly so it is substantially certain Trish's bullet was the
cause. 54 Still the question remains, did Trish have the intent? With regard to Lorraine she was at
least reckless and negligent. She can therefore be convicted of homicide.
MPC
Trish would probably be convicted here as well. The mens rea analysis is the same under
the MPC as under the CL. Causation is a bit different. All you need to ask is "but for" Trish's
actions would Lorraine have died when she did. The answer is no therefore Trish caused her
death. MPC also says if the person or property is different then what the defendant intended she
is still guilty. Or if the harm is the same she is still guilty. Under both of these doctrines Trish is
guilty of murder. She did intent to kill Olga the fact that she killed Lorraine doesn't matter.
Attempted Homicide
CL
For an attempt you need to take a "substantial step" in furtherance of the crime. This is a
specific intent offense. The defendant must have the intent to take a "substantial step" in the
completion of the targeted offense with the intent to commit the target offense. There are six
common law tests:
1. Dangerous Proximity Test- If Trish was dangerously close to committing the crime
then she is guilty. She was geographically close to Olga and actually pulled the trigger.
2. Last-Act Test- The last act is pulling the trigger, Trish satisfies this test.
3. Physical Proximity Test- Under this test if you are spatially close to the victim and
can complete the crime then you are guilty. Again Trish was close and she did pull the trigger.
4. Indispensable Element Test- If you have the necessary instrumentality required to
commit the crime. Here, there was a gun and culpable conduct.
5. Probable Desistance Test- If you pass the point of no return. By pulling the trigger
Trish satisfies this test.
6. Unequivocality Test - The defendant does something that without a doubt shows
intent. Here, Trish pulled the trigger this is presumptive evidence of intent and thus passes the
test.
As for the mens rea by pulling the trigger Trish shows she had intent to take the
necessary steps. She also had the intent to commit the homicide. She aimed at Olga, called her a
name and shot. Her poor aim is all that prevented her from killing Olga.
Her actions afterward, shooting the poster also show her intent to kill Olga.

54

There is also the issue of transferred intent from Olga to Lorraine.

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MPC
Under the MPC the defendant must take a substantial step in furtherance of the crime.
She must have the intent to take the step to corroborate that intent. 55 For example, lie in wait,
case the establishment or solicit someone. The defendant must have the purpose of completing
the target offense. Here, Trish took a substantial step, she shot the gun! She also showed she had
the requisite purpose.

Question three
Defenses:
Burglary- As I said Trish probably wouldn't be guilty of burglary. She wouldn't need a
defense but she did invoke one anyway. Any defense used under the child snatching analysis
could be applied but would probably also fail for the same reasons. Same for CL and MPC.
Homicide and Attempted Homicide
CL
The same defenses that were analyzed under child snatching could apply here but with
different outcomes.
Insanity
Because Trish was "startled and confused" and due to her illness she didn't know how to
act or what to do. The evidence for insanity is present. Under the MPC she probably has a better
chance to argue she was unable to conform her actions to the law and control herself. However,
with insanity she gets locked up because she was a "mentally diseased alcoholic." She would
have a better defense under the irresistible impulse defense. Because of her disease she was
unable to control her actions when faced with a dangerous situation and the prospect of losing
her son. The defenses discussed in question 1 would also be hard to prove because Trish seemed
alert and she fled showing she knew she was wrong. However they all are valid defenses (MPC
also).
Diminished Capacity
This is probably the best defense because she can get off or at least be given a reduced
sentence if she can show her past or present intoxication stopped her from forming the requisite
mens rea.
Self Defense
Trish might also try a claim of self-defense. She was very tiny next to Olga. Under the
CL however she was really the aggressor because Olga did nothing but appear menacing. Under
the MPC, Trish is the provoker because she called Olga an "Amazon" and would not be entitled
to claim self-defense.

55

Other offenses- felony murder and conspiracy.

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Question 4
Olga(CL)
Under the CL, Olga can not be convicted of the rape of Tim because a woman cannot
legally rape a man. She would probably be guilty of another offense like sexual assault or
sodomy.
MPC
A woman can not rape a man under the MPC either. However, she might be charged with
sexually deviant intercourse because she caused Tim to engage in oral sex. The only strict
liability is for children under ten. Tim is twelve, therefore since Olga used no force or threat
of force she probably would not be convicted. Most likely she'll get charged with molestation
of children. She had sex with someone, not her spouse who was under the age of sixteen and she
was at least four years older than the victim, so this requirement is met. Tim is also under
twenty-one and she is his legal guardian. So she could be convicted. If this were to fail there is
always sexual assault 56 but it is a much lesser crime.
Defenses:
She could possibly claim diminished capacity due to her failing love affair with Igor.
However, under CL or MPC courts will probably not accept this for the crime of molestation of
children.
Insanity is always a possibility but she would need to spend a lot of time locked up and its very
hard to prove.
Question 5
(Sam)
Assault
Sam would be charged with some type of assault for attacking Olga. He probably had no
intent to kill her because he did not use deadly force and she was so large.
Conspiracy
If Trish was found guilty of the child snatching he could also be charged with conspiracy
under the MPC. Agreeing to commit a crime, attempting to commit a crime, soliciting a crime, or
agreeing to aid in the commission of a crime, solicitation of a crime or to attempt a crime with
the purpose of completing the target offense. Here, we have conspiring to commit child
snatching.
CL
Conspiracy requires you to agree with one or more persons to commit a crime with the
mens rea of intending to agree and intending to commit the crime. He could then be found guilty
of conspiracy to child snatch. Trish might get off with a Mistake of Different Law defense. Sam
may also if he can show Trish was justified not excused. Otherwise, he can be convicted.
If Sam is guilty of conspiracy under the CL he would also be guilty of any of the foreseeable
consequences of the child snatching under the Pinkerton Doctrine. Murder may or may not be a
foreseeable consequence. He might also be guilty for the homicide and attempted homicide
under accomplice liability. In murder cases courts may allow accomplices to be liable for the
56

May also be charged with corruption of minors.

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murders if it was a "natural and probable consequence."

Of course, he may be guilty of child snatching himself. The facts do not say that Sam was
Tim's father. So he actually has no mistake of different law defense. Probably under both MPC
and CL he would be found guilty because he had the intent to aid Trish to take Tim. Sam would
then be committing a felony and would run into problems with felony murder.
CL
There are four limiting doctrines:
1)Causation (4 theories)
(a) non-felony killing. There are two theories here. Agency and proximate.
Because Trish and Sam were acting together
and Trish did the killing this won't
apply.
(b) "but for"- But for Trish's actions would the murder have occurred? No.
(c) Was there any grossly bizarre intervening events. This is Sam's chance to get
off. He has to argue that he didn't know Trish had a gun and that they never agreed to
take Tim
by any means necessary and that shooting Lorraine was bizarre and Sam
never had such an intent.
(d)proximate cause
2) Goes to who was killed by whom. Here the felon did the killing.
3)Duration:
(a)antecedent homicide
(b)safe haven
Neither apply in this situation.
4) Type of Felony
(a) traditionally felony murder applies to all felonies.
(b) some states limit it
(c) in some cases the felony merges with the murder (does not
apply
here
because the felony is sufficiently
independent).
(d) dangerous felonies:
i. Abstract Approach - Look to see if this felony could be completed
non-dangerously. Sam might have another way out here. He could argue that this felony
is usually non-dangerous. However, this is difficult because snatching a child from
someone else's possession would probably erupt into violence if the possessor resists.
ii. Case by Case Approach - Here one looks to how this felony was completed.
This makes it hard for Sam because he aggravated the situation by attacking Olga. So in a
sense he may have started the commotion. If Sam is convicted of a felony he will have a
tough time under the CL getting out of the felony murder.
MPC
For murder the defendant must be extremely reckless. Extreme recklessness is presumed
when one commits a felony. Unless Sam can show he was negligent which is unlikely he could
be convicted of murder under the MPC also.
As a defense to felony murder he has to argue that the murder was bizarre and non118

foreseeable. Because felony murder is controversial due to its strict liability mens rea, he might
argue he had no intent and the court might ignore the strict liability. He had no intent to kill
because he grew hysterical when Trish shot Olga. Under the MPC, he could argue he should
have been aware that Trish had a gun and would shot but he wasn't. Therefore, he was negligent
and doesn't have a mens rea. More importantly, the MPC enumerates its felonies which invoke
the felony murder rule and child snatching is not one of them. Under the MPC he would not be
guilty. 57
Question 6
(A) State v. Igor (regarding Olga)
CL
Because the statute and history is so vague it will be difficult to determine what the mens
rea is. It can be agreed however under the CL that rape is only vaginal intercourse (very few
allow oral or anal sex). If force becomes the main requirement Igor would probably not be guilty.
Igor used no force or threat of force. In particular, Olga could simply throw Igor off her. This
goes to the resistance requirement because many courts require that the female resist. Olga due to
her size would have no problem resisting. Because she didn't Igor was reasonable in believing
that she did not consent.
Many courts look to whether or not the victim consented. In determining consent the
courts look to what the victim was thinking (subjective test).
Force requirements look at what the defendant was thinking. So if the defendant did not
use force, he did not intend to rape. If the victim did not resist she must have been consenting.
The case law is not determinative. Under the CL, regardless of the precedent or standard
applied Igor would probably get off if he could show that Olga had a chance to show her lack of
consent and failed to do so. The court, in the M.T.S. case, held that if the victim does not give
permission then the defendant was not reasonable in believing he had permission. Here, it is
clear Olga didn't want sex. Before they had intercourse Olga said, "I don't want you."
Furthermore, she lay completely still during intercourse. Igor noticed that this was different from
prior occasions. She also said afterward that she didn't want to have sex. Under M.T.S. Igor
would be convicted.
MPC
Igor would most likely get off. The MPC requires force or threat of force of death,
serious bodily injury, extreme pain or kidnapping to anyone to show the victim did not consent.
None of these exists here. Also Olga is not under 10, was not intoxicated or unconscious. She
was also not harmed. Igor would not get rape in the 2nd degree because he had previous sexual
relations with Olga and knew her socially. He also couldn't be charged with gross sexual
imposition or sexually deviate intercourse. He might get sexual assault if the prosecution
could show him touching Olga intimately and that it was offensive to her. In any case it will be
very hard for the prosecution to convict under the MPC.

57

He may also be guilty of burglary.

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(b) Molly
Here again the CL is divided. The question will probably revolve around whether or not
Molly could consent at all because she was retarded. It depends on the degree of mental
retardation. Molly took her clothes off without objection. She didn't object until she was asked
to allow Igor to enter her and then she became upset. It seems from the facts Molly didn't know
at first what she was consenting to. In addition, because Igor was her guardian this might sway a
court to find him guilty.
MPC
There was no force involved therefore no 1st or 2nd degree rape. Igor would get gross
sexual imposition because Molly was mentally retarded and he was her guardian and authorized
to care for her (this is one standard). Otherwise he could be charged with sexual molestation of a
child. 58 She is under 21 and he is her legal guardian. This would satisfy that charge. He could
probably get gross sexual imposition in the 3rd degree.
CL
Molly's actions could be seen as entrapment. In that case she wasn't a victim at all. It
will be very hard to get a conviction because the jury will wonder why Molly didn't protest
before he penetrated her. The law also says if one person needed in the commission of a crime is
an officer of the law the other (Igor) can't be prosecuted. The reasons Igor would be prosecuted
were because Molly was retarded and under his supervision. If she isn't mentally retarded and
wasn't even suppose to be under his care then the conditions to prosecute were not met.
Question 7
Are there other conditions?
Igor didn't use force and Molly didn't resist. She also didn't verbalize a "no" (post
penetration rape is not a crime). One way to look at this is with impossibility. Igor intended an
illegal end, the fact that Molly was not mentally retarded is a factual impossibility. This is not a
defense, however, Igor can be convicted of attempted rape. Under the CL by penetrating Molly
he satisfies all 6 attempt tests and he had the intent to do the act and the intent to have sexual
intercourse. He therefore could be charged with attempted gross sexual imposition.
MPC
The MPC does not recognize impossibilities however if the attendant circumstances were
as the defendant believed them to be and his acts constituted a crime then he can be convicted.
Here, Igor believed Molly was retarded and under his supervision.
He therefore, did the crime under the MPC and the analysis as under question 6 remains
the same.

Question 8
It doesn't matter if Olga and Igor never commit another crime. Under the retributivism
theory they need to be punished for what they did. If they are convicted it doesn't matter if they
were never convicted before or if they were good outstanding citizens. (This would be a
mitigating circumstance for death penalty sentencing.)
58

Also may be charged with corruption of a minor.

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Under the utilitarian theory, our goal is to prevent and deter future crime. Punishing
Igor and Olga will serve as both a general and specific deterrence. General, because people will
not commit this crime because they see what has happened to Igor and Olga. It is a specific
deterrent because incarceration may deter Igor and Olga from committing this crime again. The
same would apply to Trish, just because she may not run an orphanage doesn't make her any less
of a person. For the same reasons she should be punished. Like in death sentencing such claims
are brought to reduce sentencing and they might also be considered for Igor and Olga. Trish can
also claim she was an alcoholic and mentally diseased. She had a hard life. She has a family and
she will get help and never do these crimes again. It is not clear if she has a past record. She also
has mitigating circumstances.
The claims made by the state residents are not logical unless they apply uniformly to
everyone (Igor, Olga, and Trish).

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