crim law: feb 24 2010 class notes

mpc 2.02.
purposely
knowingly
recklessly
negligently

nypl 15.05
intentionally
knowingly
recklessly
negligently
strict liability

common law
specific intent
general intent
strict liability

public welfare offenses. there is a presumption element to strict liability.
factors that may overcome the presumption against strict liability:
1. statutory crime not derived from the common law
2. evident legislative policy that would be undermined by a mens rea requirement
3. standard imposed is reasonable
4. penalty is small
5. conviction "does not gravely besmirch"

strict liability public welfare offenses: BIG HARM + little penalty + fair

moral blameworthiness: you're the creator of a hazard, and given the severe harm and your efforts to prevent the harm, it still is ok to punish a person who creates a harm though they might have tried to avoid the harm.

"where there's thomas, there's scalia..."
staples v. us
the question is one of strict liability.
the defendant knows that he is dealing with a dangerous device of a character that placed him "in responsible relation to a public danger."
is the right question is an automatic gun dangerous, or is it that a semi-automatic that is modified to be automatic is dangerous?

the dissent is relying more on the plain text of the statute. the argument is particularly convincing, but the problem is that the penalty is much higher than we consider reasonable for public welfare offenses.

garnett v. state
maryland code, art. 27, s.463:

second degree rape. 

(a) what constitutes - a person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

     (1) by force or threat of force against the will and without the consent of the other person; or

     (2) who is mentally defective, mentally incapacitated, or physically hopeless, and the person performing the act knows or should reasonably know the other perosn is mentally defective; or

     (3) who is under 14 yo, and the person performing the act is at least 4 years older than the victim.

(b) penalty - any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisionment for a period of not more than 20 years.
there is no mens rea to this statute.

should this be called a public welfare crime?
Harm =
fairness =
penalty = NO; the penalty is 20 years conviction

is there an indication that the legislation wanted this to be strict liability?
the provision for having sex with someone who is helpless (subsection 2), the legislation put in a mental state of the victim and could just as easily have put a mens rea element.
legislative history: the legislation rejected a mens rea version of the statute
silence: the history of statutory rape for hundreds of years has been that there is no mens rea, and so the assumption is that the legislation would have said something to the opposite.

must become very comfortable with nypl art.130, sex offenses (nb: must find the definitions for art. 130 too)
if you're under 17, you can't consent. 
criminal age combinations: victims 11 -16 and defendants 16-17 are guilty of grade A misd. sexual misconduct
victims 14-16 and defendant 16-20 are guilty of grade A misd. sexual misconduct

victims 15-16 and defendant 21+ are guilty of grade E rape-3rd
victims 0-10 and defendant 16+ are guilty of grade B rape-1st
victim 11-12 and defendant 18+ are guilty of grade B rape-1st
victim 13-14 and defendant 18+ are guilty of grade D rape-2nd

do we want a strict liability element to stat. rape? yes - we want the overdeterrence
and we know that they want strict liability because of the stat. language:
15.20(3): notwithstanding the use of the term"knowingly" in any provision of this chapter defining an offense in which the age of a child is an element thereof, knwoledge (of the age) by the defendant (is not needed)