Monday, August 29, 2016
Two "extra credit" answers noting provisions of Ohio law similar to the law struck down in Proctor
I am pleased to be able to report that two students have already sent me answer to my in-class question about Ohio criminal statutes structured very similarly to the statute deemed unconstitutional in Proctor:
Ohio Revised Code Section 2923.241 Hidden compartments in vehicles, Sub-section (B): “No person shall knowingly design, build, construct, or fabricate a vehicle with a hidden compartment, or modify or alter any portion of a vehicle in order to create or add a hidden compartment, with the intent to facilitate the unlawful concealment or transportation of a controlled substance.” (Added student note: This all works on the theory that modifying your car to have a “hidden compartment” and possessing a “hidden compartment” are the same thing. But with my neophyte knowledge of the law and common reasoning I would say they probably are.)
Ohio Revised Code Section 2923.24 Possessing criminal tools, Sub-section (A): “No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.“
I was thinking/referencing the Ohio possessing criminal tools statute in class, but I am pleased a student also flagged the Ohio hidden compartment crime (which, if you look at the code sections, is really numbered as a kind of subsection/extrapolation on possessing criminal tools).
A few years ago, the Ohio Supreme Court issued a lengthy split opinion in Ohio v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991 (December 15, 2010), on the meaning/reach of the term "criminally" in the Ohio possessing criminal tools statute. (But, for lots of reasons, I think your time this week would likely be better spent re-reading Jones and Martin (or watching Dave Chappelle bits on YouTube) than reading Ohio v. Chappell.)
UPDATE: Another student just sent me another possible addition to the list of Proctor-like laws in Ohio:
Ohio Revised Code Section 2925.041 Sub-section (A): "No person shall knowingly assemble or possess one or more chemicals that may be used to manufacture a controlled substance in schedule I or II with the intent to manufacture a controlled substance in schedule I or II in violation of section 2925.04 of the Revised Code." (Added student note: Thus, this statute is making it illegal to possess a chemical that otherwise would be legal to possess when the possession is coupled with the intent to use the chemical in the making of a controlled substance. This appears to be a nearly identical situation as was presented in Proctor. Then, right before prohibition when alcohol was viewed as extremely problematic, this coupling line of reason was used to aid the prevention of speakeasies. Today, ORC 2925.041 is using the coupling line of reason is being used to aid in the prevention of the manufacturing of what we consider problematic, drugs. Let me know if this was the answer you were looking for.)
Sunday, August 28, 2016
Some background on drug dealers being criminally responsible for causing overdose deaths (and its possible theoretical justification)
Friday's in-class discussion and debate over the sentecing of (very fictional) Oliwood drug dealer Dan Schayes raised the interesting and controversial (very real) issue of whether persons involved in drug dealing can and should be held criminally liable for the death of a customer. As the prosecution in the Schayes case noted, federal criminal law already speaks to this issue through a provision in 21 U.S.C. §841(b)(1)(C): it states that a convicted drug dealer involved with serious drug substances generally "shall be sentenced to a term of imprisonment of not more than 20 years," but that such a drug dealer, "if death or serious bodily injury results from the use of such substance, shall be sentenced to a term of imprisonment of not less than twenty years or more than life."
Toward the end of September, we will looking at the basic substantive criminal law rules that generally apply for determining when and how a defendant can be held responsible for causing a result, and a few years ago this issue in federal law dealing with overdose deaths made it all the way up the US Supreme Court in the case of Burrage v. United States. I would urge you all NOT to read the Burrage case closely (or at all) at least until we get to our causation discussions in class (though, at that time, you will be able to earn more extra credit for engaging with the Burrage SCOTUS ruling).
On the topic of earning credit, I am now pretty sure I have figured out how to get the comment section of this blog open, and that means every class member can earn some credit ASAP by using the comments here to share thoughts on what theory or theories of punishment might support holding drug dealers criminally liable for the deaths of their customers. Notably, just a few weeks ago this lengthy and interesting AP article, headlined "Prosecution trend: After fatal OD, dealer charged with death," discussed this kind of criminal action as a growing trend. And I stirred up some interesting commentary on the trend with this post about that AP article on my main blog titled "Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?"
Wednesday, August 24, 2016
Lawyers signed up for Friday afternoon's role-play
I am so please to have already heard from many of you as volunteers for our sentencing role-play planned for Friday afternoon. Here is the current run-down:
Oliwood v. Rachel Foster
Prosecutors: Emily Cashell & Sophie Daroff
Defense Attorneys: Ali Najaf & Alex Szaruga
Oliwood v. Dan Schayes
Prosecutors: Miki Someya & Kaiqin Huang
Defense Attorneys: Joe Barton & Matt Brinzo
For these lawyers, it is useful to try to be a bit cued into your respective roles: Prosecutors do not represent any individual party, but the state as a whole, and they thus tend to embrace the obligation to argue for whatever sentence they believe will be just and effective as a punishment. Defense attorneys, in contrast, have an individual client, and their role is typically understood to require them to seek and advocate for the most lenient/defendant-friendly sentence as seems possible under the circumstances.
The rest of you, as I mentioned in class, get to serve as sentencing judges. Available below is a form all judges should use for sentencing. There is no need (or place) to put a name on the form, but I will collect them after our sentencing hearings in class on Friday. As you will see when you download the form, judges are encouraged to develop tentative ideas about what sentence they might impose before coming to class to hear the advocates' presentations. By doing so, you all can get a better sense for whether and how advocacy can have an impact in this kind of setting.
Tuesday, August 23, 2016
Electronic copies of Handout #1 and materials for Friday afternoon's sentencing role-play
Available below for downloading are:
(1) Handout #1 (Excerpts of Remarks by President Obama at the July 2015 NAACP Conference), and
(2) Materials for our Friday afternoon sentencing role play (PreSentencing Reports (PSRs) for Rachel Foster and Dan Schayes).
These materials will also be available in hard-copy in class on Wednesday. In the meantime, think hard about whether you would like to volunteer to serve as a prosecutor or defense attorney in our afternoon role play (earning a free drink and immunity from being called upon in class for most of September). As will be explained in class on Wednesday, those not serving in a lawyer-advocacy role will serve as judges in the role play.
As I will explain in class, for purposes of our sentencing role-play exercise, both the lawyers and judges of Oliwood should assume that the great state of Oliwood has adopted the first two subsections of US Code, Title 18, Section 3553(a) as a guide for sentencing advocacy and sentencing decision-making by Oliwood judges. (In other words, lawyers and judges should focus on the substantive provisions of 3553(a)(1) and 3553(a)(2), but should not worry about the subsequent sections of 3553(a).)
Thursday, August 18, 2016
First day assignment and electronic copies of the course description and class syllabus
I have posted on the Moritz official website our first-day assignment, but I figured it would be useful to repost the details here, while also providing electronic copies of the basic course documents. So....
In preparation for our first class on Monday, August 22, you should:
1. Obtain a copy of Kaplan, Weisberg and Binder, Criminal Law (7th ed. 2012)
2. Obtain a copy of the course description and the course syllabus (part 1), which are available in boxes outside my office (Room 313) and below.
3. Read the casebook's Introduction quickly and pages 21-27, 31-34, and 573-79 closely. Because the next set of readings provide theoretical background, can be read quickly, and should enhance your appreciation of our initial discussions, I encourage you also to SKIM pages 34‑77 in the text as soon as possible.
Wednesday, August 10, 2016
Welcome to the Moritz College of Law, Criminal Law with Berman, and version 6.0 of this class blog
As some of you may already know, I am a big fan of law blogs and I make a regular habit of using blogs to support and supplement my instruction in law school classes. Sometimes class blogs serve my purposes and goals well; other times, not so much. Undaunted, I remain convinced (but not entirely confident) that the blog technology (rather than a propriety law-school-support technology like TWEN) provides the best on-line tool for supporting and supplement law school courses.
I will continue my bloggy ways in the Fall 2016 semester at the Moritz College of Law through this blog to supplement our first-semester 1L small-section Criminal Law course. And, as the version 6.0 label highlights, I have built this "new" blog directly atop the blog I used when teaching this very same course four times before (in Fall 2008, 2010, 2013 and 2014) and when teaching a Comparative Criminal Procedure course (in Summer 2012).
I am hopeful that some new 1Ls will benefit from (or at least find reassuring) seeing some of the posts (and comments) that were generated in this forum at other times. Current users might focus especially on the archives from Aug-Dec 2013 and Aug-Dec 2014 to see some of the "action" in this class from the last two times I taught it.
So, welcome to the latest re-launch of this 1L Crim Law blogging adventure. I am always pleased when this blog helps to promote a distinct type of student engagement, and it will certainly provides the means for me to share required and optional materials and ideas.
P.S.: To provide proof that mining the blog archives can be useful, here are some items from deep in this blog's archives you might already find interesting or useful. For example, two prior posts and the student comments thereto (one from Aug 2008 and the other from Aug 2010) might be worthwhile as you gear up for our first week of class discussions:
- Any pre-class thoughts on Dudley and Stephens?
- Does the text or spirit of the US Constitution favor any particular theory of punishment?
In addition, in the archives from 2008, one can find these links to another of my favorite law blogs providing lots and lots of (old but still timely) advice for incoming 1Ls:
Thursday, December 11, 2014
Reminder: Review session today (Thursday 12/11) ...
starting around 10:45am in our room and running until attendees run out of questions (or until I need to head to airport around 1pm)....
Tuesday, December 9, 2014
Extra credit accounting update (and final deadline for first three EC opportunities)
As of early afternoon on Tuesday, December 9, 2014, my records reflect that I have received all of the first three extra credit submissions from 19 of 28 students in the class. In addition, I have received two EC submissions from six other students, one EC submission from two students and one student has submitted no EC.
For various reasons, I am going to now provide that I must receive any final EC submissions for the class-related assignments — that is, the first three assignments on (1) two past SCOTUS causation cases, (2) Ohio defense cases and (3) Elonis briefing and arguments — no later than the end of the day this Friday (Dec. 12, 2014). For the record, I am happy to and probably even would prefer getting the final EC submission — about how to improve legal education and your ideal summer job — only after exams have been finished for the season.
Thursday, December 4, 2014
Review session plans for Thursday (12/11) and Saturday (12/13)
As mentioned in class, I will plan to conduct (entirely optional) review sessions in the days leading up to our exam. Specifically, I plan to be at the law school and will head to our usual room to answer questions for as long as possible/needed on:
- Thursday, December 11, starting at 10:30am
- Saturday, December 13, starting at 12:30pm
On Thursday, I will have to leave by around 12:45pm to catch a flight, and on Saturday I will have to leave by around 4:30pm to pick up my daughter from a rehearsal. But, save for those restrictions, my time is yours for any and all types of review students request.
Monday, December 1, 2014
"Crazy or Faking It? The impending execution of Scott Panetti and the search for a standard of sanity."
The title of this post is the headline of this effective new piece from The Marshall Project which highlights some of the mental health issues we have discussed in recent classes with a special focus on a controversial execution scheduled to take place in Texas later this week.
Sunday, November 30, 2014
My accounting of extra credit efforts submitted as of end of November
Over the break I reviewed my electronic records to account for all the extra credit (EC) efforts submitted to date (based on three eligible EC opportunities). Here, listed by last name and number of EC submissions, is what my accounting shows:
If your records show a different number of EC submissions, let me know ASAP.
Thursday, November 27, 2014
Links to a bunch of my old exams
As I have suggested to various folks at various times, reviewing my old exams is an effective and important way to prepare for my final. To help toward that end, here I will now post links to prior posts where you can download many of my old exams:
After you all get a chance to look through all (lucky?) seven of these prior exams, I may post a few more.
Wednesday, November 26, 2014
Some effective overview/previews of SCOTUS case Elonis v. United States
I hope everyone has/had a great holiday break and that perhaps a few folks are interested in reading up more about the interesting Supreme Court criminal case to be argued next week. As students should recall, I briefly discussed Elonis v. United States in class, and the last extra credit opportunity involves discussing critically one of the many amicus briefs submitted in the case.
Not surprisingly, the upcoming oral argument is generating discussion about the case, and these two recent media accounts seemed worth noting in this space:
- From SCOTUSblog here, "Drawing a line between therapy and threats"
- From the New York Times here, "Do Online Death Threats Count as Free Speech?"
The SCOTUSblog posting provide this helpful summary of the case and its legal basics:
[Anthony] Elonis’s legal troubles date back to 2010, when his wife left him, taking their two young children with her. He began to post lyrics from popular songs on Facebook, and he soon moved on to post his own, sometimes violent, rap lyrics. As part of his posts, Elonis included disclaimers about how his lyrics were merely fictitious, and that he was just “exercising his constitutional right to freedom of speech.” He also sometimes included links to the Wikipedia entry on the First Amendment and even the text of the First Amendment itself.
In the fall of 2010, Elonis’s Facebook posts included several that discussed harming his ex-wife. One post was a take-off on a comedy routine available on YouTube: Elonis asked his Facebook friends whether they knew that it was illegal for him to say that he wanted to kill his ex-wife, and he added that it would be “incredibly illegal” to suggest that someone could kill his ex-wife by firing a mortar launcher from the cornfield behind her house. A day later, Elonis put up a post about shooting a kindergarten class.
These posts earned Elonis a visit from an FBI agent. After the visit, he posted about that encounter too, suggesting in rap lyrics that he had strapped a bomb to his body and would have detonated it if he had been arrested. This post was apparently the last straw for the FBI: a few weeks later, Elonis was arrested and charged with violating 18 U.S.C. § 875(c), which makes it a crime to communicate threats in interstate commerce — for example, over the Internet.
Elonis claimed that the charges against him should be dismissed because you can only violate the law if you intend to harm someone. And he didn’t have any plans to hurt his ex-wife, the FBI agent, or anyone else: his rap lyrics and “venting” about his problems on Facebook just made him feel better. But if he can be convicted without any intent to hurt anyone, he added, that would violate the First Amendment. A federal trial court rejected both of his arguments. Instead, it instructed the jury, it could find Elonis guilty if the average person, looking at a statement objectively, would believe that it was intended to be a threat. The jury convicted Elonis, and he was sentenced to nearly four years in prison....
In his briefs at the Supreme Court, Elonis argues that a “threat” by its very nature requires an intent to cause fear. Because the whole point of a crime, he says, is that the defendant meant to do something wrong, the Court has interpreted criminal laws as requiring a wrongful intent even when they did not explicitly do so. Making it a crime to threaten someone even if you didn’t intend to hurt them, he contends, would cause people not to speak at all, because they would be worried about whether they could go to jail based on a jury’s possible misinterpretation of their comments. This is particularly true, he concludes, when you are talking about alleged threats on social media and email, where nuance and tone matter so much and it’s so easy to misconstrue what someone says.
The federal government counters that, as the trial court in this case instructed the jury, courts should determine whether something is a “true threat” by looking at whether an average person would interpret the statement as reflecting a serious intent to harm someone. The government emphasizes that courts and juries can and should look at the context in which the alleged threat was made, and at the reactions of the people who heard the alleged threat, but they should not consider whether the defendant himself actually intended to carry out the threat. This, the government explains, is because even if Elonis didn’t intend to harm his ex-wife or the FBI agent, they were still afraid and their lives were still disrupted: the First Amendment doesn’t protect him even if he knew that he didn’t mean to carry out the threats.
Monday, November 24, 2014
Another sad police shooting surely not "justified," but will it get excused in Ohio?
Especially as the news media continues to await a grand jury outcome in Ferguson, this new sad story out of Cleveland of a seemingly mistaken use of defensive force is likely to become the next national story about police use of excessive force. This New York Times report, headlined "12-Year-Old Boy Dies After Police in Cleveland Shoot Him," provides these basics:
Officials in Cleveland were investigating the police shooting of a 12-year-old boy who died on Sunday, a day after an officer shot him outside a recreation center when he reached for a weapon that turned out to be a fake pistol.
The boy, Tamir E. Rice, died on Sunday at MetroHealth Medical Center in Cleveland, the Cuyahoga County medical examiner’s office said. He was shot in the torso at a park on Saturday after witnesses reported that he was waving a gun around and pointing it at people, the police said.
Two police officers responded to the scene and ordered the boy to raise his hands, the police said, but he refused and reached for a gun in his waistband. An officer fired two shots, striking the boy once, the police said.
In a 911 call released by the police, a man said that “a guy” who appeared to be a juvenile was pointing a pistol at people and scaring them. The caller said twice that the gun was “probably fake.”
“There is a guy with a pistol,” the caller said. “It’s probably fake, but he’s pointing it at everybody.” The police were investigating what information from the call was relayed to the officers, said Jennifer Ciaccia, a police spokeswoman. The Cuyahoga County prosecutor’s office was also investigating the shooting....
The shooting happened about 3:30 p.m. at the Cudell Recreation Center on the city’s west side, the police said. Deputy Chief Ed Tomba of the Cleveland police said on Saturday that the boy had not threatened the officers or pointed the weapon at them.
The police learned that the gun was fake after the shooting, Ms. Ciaccia said. The weapon was an “airsoft” replica gun resembling a semiautomatic pistol, with the orange safety tip removed, the police said. “It looks really, really real, and it’s huge,” Ms. Ciaccia said
I can do exam reviews Monday (11//24) starting at 12noon....
if anyone without a scheduled time already wants to try to fit in a quick meeting during the lunch hour.
As I noted in the previous post, it seems that these meetings only take about 15-20 minutes, so I could probably fit in three or four meetings during the lunch hour before class and maybe can get twice as many after class today.
If you are interested in a lunch-hour exam review meeting today, please say so in the comments AND indicate the time you expect to come by.
Wednesday, November 19, 2014
Materials and times for midterm review
As long promised and now finally delivered, here are available for download both the Crim Law 2014 midterm and the grading grid I used when reviewing/scoring answers:
Also, I will be available to review student performances one-on-one at the following times throughout this week and next week:
Wednesday 11/19: From 4:30pm to 6:00pm
Thursday 11/20: From 4:00pm to 5:30pm
Friday 11/21: From 3:00pm to 5:30pm
Monday 11/24: From 3:00pm to 5:30pm
UPDATE on MEETING TIMES AS OF 11/19 at 3pm:
11/19: Still open
11/20: Valerie J at 4pm, Holly C at 4:30; Neil S at 5
11/21: Sasa T at 3pm; Robert Y at 3:30; Devin S at 4; Abi W at 4:30
11/24: Madison T at 3pm; Madison G at 3:30
I can/will make more review times available as needed and able...
ANOTHER UPDATE on MEETING TIMES AS OF 11/20 at 9am:
If those with scheduled times can send me their exam numbers AHEAD of the meeting time so I can prepare for the meeting, I ought to be able to complete most review meetings in 15 minutes. So those eager to still get fit but not yet on the schedule might usefully send me their exam number AND hang around during meeting times to get in the mix.
Monday, November 10, 2014
Would you consider it lewd for a man to...
"make a 'V' with his finger, rub it with his pointer finger and lick the top of his finger ... [and also touch] a Barbie doll between the legs"? I ask because these are the facts of a crimina case discussed in this local article from Pennsylvania. The story caught my eye because we discussed what lewd might mean as used in one of the proposed campus sexual codes.
Tuesday, November 4, 2014
Mid-term results available for downloading
Everyone running for office or interested in politics will have to wait until late tonight to get "mid-term" election results on Election Day 2014. But students in Berman's Criminal Law small section can now get the raw score results of the mid-term exam by downloading the document with all the data here:
As I mentioned in class, I will set up some times over the next two weeks to go over these results if/when folks want to review specifics of their performance.
Monday, November 3, 2014
Sexual offense code reform proposals from our drafting subcommittees
At the risk of losing something in translation or formatting (indeed, I fear some of the numbering is messed up), I am going to post here, in the order for in-class presentation, the subcommittee proposals for revising/reforming Oliwood's rape provisions and for a campus sex cod. (I urge everyone to put any needed corrections/clarifications/concerns in the comments AND I suggest each group consider bringing hard-copy versions of their proposals to our legislative session this afternoon to aid full committee review and consideration.)
First Oliwood Rape Reform Drafting Subcommittee (FORR)
ARTICLE 213. AGGRAVATED RAPE AND RAPE
Section 213.0. Definitions. In this Article, unless a different meaning plainly is required:
(1) the definitions given in Section 210.0 apply;
(2) "Sexual contact" includes the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person.
(3) “Consent” means that at the time of the act of sexual contact there are actual words or conduct indicating freely given agreement to have sexual contact.
(4) A person is deemed incapable of consent when he or she is: (i) unconscious; or (ii) asleep; or
(iii) mentally disabled; or (iv) mentally handicapped; or (v) less than than 15 years old
Section 213.1 Aggravated Rape: A person who commits rape while any of the following circumstances are present is guilty of aggravated rape:
(a) if it is committed by using force or threat of death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone is caused; or
(b) if death, serious bodily injury, extreme pain or kidnapping is caused to anyone; or
(c) the offender purposefully or knowingly acted without the person’s consent; or
(d) the offender purposefully or knowingly acted without the person’s consent and (i) the offender has substantially impaired the person’s power to appraise or control the person’s conduct by administering or employing, without the person’s knowledge, drugs, intoxicants or other means for the purpose of preventing resistance; or (ii) the person is less than 18 years old; or (iii) the offender has previously been convicted of committing a rape or an aggravated rape in any degree
Violations of § 213.1(a) and § 213.1(c) are considered to be aggravated rape in the second degree. Violation of § 213.1(b) and § 213.1(d) are considered to be aggravated rape in the first degree.
Section 213.2 Rape. A person who engages in sexual contact with another person without that person’s consent while any of the following circumstances are present is guilty of rape:
(a) the offender recklessly or negligently acted without the person’s consent
(b)the person was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the offender’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
Section 213.3 Provisions Generally Applicable to Article 213.
Mistake as to Age. Whenever in this Article the criminality of conduct depends on a child's being below the age of 15, it is no defense that the actor did not know the child's age, or reasonably believed the child to be older than 15. When criminality depends on the child's being below a critical age other than 15, it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age.
Second Oliwood Rape Reform Drafting Subcommittee (SORR)
Section 213.0. Definitions
"Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, or oral between persons; and, without privilege to do so, the insertion, however slight, of any part of the body or any object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. [ORC 2907.01]
Section 213.1. Rape and Related Offenses
(1) Rape. A person who engages in sexual conduct with another person is guilty of rape if:
(a) that person compels another to submit by force, by threat that would prevent resistance by any person of ordinary resolution, or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or
(b) the offender has impaired the others ability to appraise or control their conduct by knowingly administering or employing without their knowledge drugs, intoxicants, or other means; or
(c) the person is unconscious, or suffers from a mental disease or defect rendering them incapable of understanding the nature of the conduct; or
(d) the person is less than 14 years old and the offender is more than two years older;
(2) Gross Sexual Imposition. A person is guilty of gross sexual imposition if they:
(a) recklessly engage in sexual conduct with a person who is unaware of the conduct due to intoxication or other means of inhibition not resulting from the offender's conduct; or
(b) knowingly engage in sexual conduct with another by impersonating the victims significant other or spouse; or
(c) purposely engage in sexual conduct with another by deception in regards to contraceptive methods
(d) engage in sexual conduct with another by acting recklessly in regards to their own sexual transmitted diseases
(a) Any person found guilty of (1)(a)-(d) under Section 213.1. is guilty of a felony in the first degree
(b) Any person found guilty of (2)(a)-(b) under Section 213.1. is guilty of a felony in the third degree
(c) Any person found guilty of (2)(c)-(d) under Section 213.1 is guilty of a misdemeanor
First Oliwood Campus Code Drafting Subcommittee (FOCC)
Universities have a fundamental responsibility of educating students. In order to fulfill this responsibility, a safe learning environment must exist, which is threatened by the prevalence of campus sexual offenses. While sexual offenses occur throughout society, there are important distinctions between those that occur on college campuses and those that occur in other contexts.
Currently, campus sexual offenses are very common and very underreported. Studies suggest that college students are an exceptionally vulnerable population. According to data collected from nearly three dozen universities, of students found responsible for sexual assault, only 30% were expelled, 47% were suspended, 17% received educational sanctions, and 13% were placed on probation, sometimes in addition to other punishments. Further, 70% of guilty students are allowed to remain on campus and most are repeat offenders, thus creating a strong concern about incapacitation.
FOCC takes a utilitarian approach to drafting a model campus sexual offense code. Simply put, we have weighed the costs and benefits of imposing a stricter, broader code and trust universities to enforce it responsibly. Educative and retributive theorists may argue that college students are less mature and therefore less culpable, however, we take the position that expulsion, or incapacitation, is necessary for the two worst forms of sexual offenses. That is, universities should be able to eliminate potential threats in order to keep other students safe.
Given the prevalence of sexual violence across college campuses, and recognizing the need for a more effective campus sexual offense policy, the FOCC proposes the following code.
RAPE AND RELATED OFFENSES
(A) Rape: Any individual is guilty of rape if:
(i) They compel the victim to submit by force or threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or
(ii) They subsequently impair the victim’s power to appraise or control their conduct by administering or employing without their knowledge: drugs, intoxicants, or other means for the purpose of preventing their resistance; or
(iii) The victim is unconscious.
(B) Rape is defined as nonconsensual (i) sexual intercourse; (ii) sexually deviant acts resulting in the penetration of the victim’s orifices.
Punishment. Any individual found to have violated any subsection of this provision beyond a preponderance of the evidence, upon examination by the FOCC Board, shall be expelled from the University at the discretion of the Board’s consideration of the surrounding circumstances of the case.
Any person who has non-consensual sexual contact with another, defined as any intentional sexual touching with any body part or object. Sexual contact is any touching of the sexual or other intimate parts of the person for purpose of arousing or gratifying sexual desire. Assault includes but is not limited to:
Sexual exploitation is defined as taking non-consensual, unjust or abusive sexual advantage of another (i.e. prostituting another student, non-consensual video or audio-taping of sexual activity, knowingly transmitting or exposing another person to a sexually transmitted infection (STI) without the knowledge of the person)
Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other physical or verbal conduct of a sexual nature
Indecent exposure is defined as the exposure of the private or intimate parts of the body in a lewd manner, in public or in private premises, when the accused may be readily observed.
Punishment. An individual who is found to have violated any paragraph of this provision’s subsection (A) beyond a preponderance of the evidence, upon examination by the FOCC Board, shall be prescribed a punishment according to the discretion of the Board. In determination punishment, the Board may consider the circumstances surrounding the incident and are given the discretionary power to assign loss of academic privileges, academic probation, and subsequent scholarship awards as they deem appropriate, unless:
The violator has been previously convicted of violating § II or § III of this code. Conviction of a second offense under this University’s Code on Sexual Related Offenses results in automatic expulsion from the University.
“Consent” is defined as the voluntary act of knowingly and affirmatively verbally or non-verbally agreeing to engage in a sexual activity.
(A) Consent to one form of sexual activity does not imply consent to other or all forms of sexual activity.
(B) Prior sexual activity or relationship does not, in and of itself, constitute consent.
(C) Consent may be withdrawn at any time.
(D) An individual cannot consent when the person is:
(1) Substantially impaired by any drug or intoxicant
(2) Has been compelled by force, threat of force, coercion, or deception
(3) Unaware that the act is being committed
(4) Physically or mentally disabled
Second Oliwood Campus Code Drafting Subcommittee (SOCC)
§ 1 Gross Sexual Misconduct
(A) Any person who does any of the following, either purposely, knowingly, or recklessly has committed an act of Gross Sexual Misconduct:
(1) Any non-consensual intercourse (defined as penetration; anal or vaginal) however slight, by force or threat of imminent force, in the absence of clear, knowing, and voluntary consent,
(2) Any non-consensual oral sex, however slight, by force or threat of imminent force, in the absence of clear, knowing, and voluntary consent,
(3) Participation in non-consensual act in any substantial way. Substantial participation includes but is not limited to: (a) aiding in the misconduct by luring a victim, (b) helping to plan the assault,(c) spiking his or her drink, and (d) taking and promulgating pictures or videos of the act.
(4) Binding of the victim so that they are bound or confined without his or her consent, even if the non-consensual sexual act is not sexual intercourse or oral sex.
(5) Attempting to have non-consensual intercourse when the offender is aware that the victim has ingested any date rape drug (including but not limited to ketamine, rohypnol, rufilin), or is incapacitated to the point of inability to consent. If the victim is under the influence of alcohol and his or her physical condition is that of or near unconsciousness, consent cannot be obtained.
(B) Victim must expressly object to the sexual activity, unless he or she reasonably anticipates that her objection will result in further danger.
Punishment Procedure for Violation of § 1(A):
If a student has been accused of gross sexual misconduct, he or she will be sent written notice, and required to attend a hearing by the Student Code of Conduct Review Board.
The Board will be comprised of representatives from the Student Body, Faculty, and Administration.
The Board will consider all of the evidence and testimony from both parties.
If the Board finds beyond a reasonable doubt that gross sexual misconduct has in fact occurred, immediate expulsion of the violating party will be ordered, and the case will then be referred to the police for further investigation.
In the event that the two parties have direct conflicting testimony, and the evidence weighs in the favor of the plaintiff, the accused will face suspension for 1 year, and the case will be referred to the police for further investigation.
If it has come to the Board's attention that false accusations have been made, the accuser will be expelled.
Lesser offenses are subject to lesser penalties according to severity
Saturday, November 1, 2014
Results of Friday afternoon's survey....
can be found in the document for downloading below. Perhaps it will help some of the drafting committees with their work this weekend.
Friday, October 31, 2014
Some (and only some) of the intricacies of ORC Chapter 2907: Sex Offenses
As I mentioned in class, I do not test on the doctrines of rape and other sex offenses in large part because (1) nearly everyone now views the Model Penal Code sexual offense provisions to be badly dated and anything but "model" for modern times, and (2) the Ohio Revised Code provisions on rape and other sexual offenses are stunningly lengthy and intricate. You can see for yourself the enormity of ORC Chapter 2907 at this link.
Among the many interesting things to notice about Ohio's "modern" sexual offense provisions is how many different labels we now have for different types of sexual offenses:
Also of note here are the detailed "general definitions" of various key terms set out in ORC 2907.01, which gets started this way:
As used in sections 2907.01 to 2907.38 of the Revised Code:
(A) "Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.
(B) "Sexual contact" means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.
(C) "Sexual activity" means sexual conduct or sexual contact, or both.
Tuesday, October 28, 2014
All needed spots now filled (I think) for next week's drafting role play ... UPDATED 10/29
I am very pleased to be able to report that I have already had voluteers for two sets of legislative sub-committees for next week's role play. As detailed below, here are (according to my notes) the groups that have formed to work on needed revisions to Oliwood rape law and to establish the terms of the worst offense for a model campus sexual offense code for universities in Oliwood. I have given silly names/labels to the groups for ease of reference:
First Oliwood Rape Reform Drafting Subcommittee (FORR) is comprised of Madison Gessiotto and Jason Manion ... and Madison Troyer and Holly Cline
Second Oliwood Rape Reform Drafting Subcommittee (SORR) is comprised of Cowles Osatrander, Jogan Riley and Chris Tavenor ... and Sasa Trivunic
First Oliwood Campus Code Drafting Subcommittee (FOCC) is comprised of Jana Al-Akhras, Anthony Lelli, Cassie Pedicelli and Tara Workman
Second Oliwood Campus Code Drafting Subcommittee (SOCC) is comprised of Clair Bullock, Kiera Ransey and Abigail Woods
If I have any of these details wrong, let me know ASAP so we can have the groups finalized ASAP. And thanks so much to the dozen students who have so quickly volunteered to participate in what should be a fun and inforative exercise.
As for what will follow, early next week (likely on Monday), each subcommittee will have about 10 minutes to present their proposed legislation. Proposed statutes can/should be sent my way via e-mail for posting in this space before too late on Sunday.
In the meantime, every member of the Oliwood legislature can perhaps benefit from reviewing this short (and very informative) 2003 article published in the Ohio State Journal of Criminal Law authored by Professor Deborah W. Denno titled "Why the Model Penal Code’s Sexual Offense Provisions Should Be Pulled and Replaced."
Saturday, October 25, 2014
Intriguing Kansas Supreme Court ruling about (full and partial) defenses in high-profile murder case
Though not precisely on-point with topics we discussed concerning intentional homicides this past week, a ruling yesterday by the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kan. Oct. 24, 2014) (available here), provides an interesting and high-profile example of an appeals court upholding a trial court's decision to preclude an intentional killer from having various full and partial defenses presented to a jury at his trial. Here are the first two paragraphs from the start of this notable Roeder ruling to perhaps whet your appettite for reviewing the full opinion (which convers some concerpts will will be exploring is some depth come November):
On May 31, 2009, Scott Roeder executed his years-old plan to kill Dr. George Tiller to prevent the Wichita, Kansas, doctor from performing any further abortions. After fatally shooting the doctor from point blank range during church services while the doctor served as an usher, Roeder hastily fled the premises. During his getaway, Roeder threatened to shoot two other ushers who had pursued him outside the church. Roeder did not deny committing the physical acts underlying a premeditated first-degree murder charge and two counts of aggravated assault, and the jury convicted him of those offenses.
On appeal, Roeder challenges both his convictions and his hard 50 life sentence. With respect to his convictions, Roeder raised numerous issues, some of which overlap, to-wit: (1) The district court erroneously denied his requested instruction on voluntary manslaughter based upon an imperfect defense-of-others; (2) the district court violated his due process right to present a defense of voluntary manslaughter based upon an imperfect defense of another; (3) the district court erroneously denied the defense motion for a change of venue; (4) the prosecutor committed reversible misconduct during closing argument; (5) the district court violated his due process right by excluding evidence to support a necessity defense and by failing to instruct on the necessity defense; (6) the district court erroneously denied his requested second-degree murder instruction; (7) the district court erroneously denied his requested defense-of-others instruction; and (8) the cumulative effect of trial errors denied him a fair trial. Finding that Roeder was not denied a fair trial, we affirm his convictions.
Friday, October 24, 2014
For our sex offense legislative drafting role play...
Would you rather have the exercise focused on:
1. Drafting a new/improved rape provision for Oliwood/MPC to replace Section 213.1(1),
2. Drafting a "most serious sex offense always requiring expulsion and prosecution" for a school campus behavior code?
Please indicate your preference in the comments. Thanks.
Sunday, October 19, 2014
Any lingering concerns or questions (other than grades) with respect to mid-term?
I just wanted to create this space for any enduring question on concerns regarding the mid-term exam. For a host of reasons, process questions would be easier to answer than substance questions. But I remain eager to continue the learning from an experience intended to be high-learning, low-stress (to the extent possible).
I sincerely hope that, with the exam now in the rear-view mirror, everyone is now looking forward and gearing up for a lot of exciting homicide discussions over the next few weeks. Though I love all parts of the course, I think the next 3-4 weeks are among the most dynamic, engaging and real-world exciting of the entire semester.