Criminal Law @ Moritz College of Law

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:

Al-Akhras (1)

Borgert (1)

Bullock (1)

Carnes (2)

Cline (3)

---

Dewey (2)

Gesiotto (2)

Jama (2)

Lee (2)

Lelli (2)

---

Manion (3)

Mayer (3)

Ostrander (2)

Pedicelli (3)

Ransey (2)

---

Riley (2)

Santiago (2)

Scott (2)

Trivunic (2)

Troyer (2)

---

White (2)

Woods (2)

Workman (2)

Yaptangco, Robert (2)

If your records show a different number of EC submissions, let me know ASAP.

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:

• 1997 and 1998 exams

• 1999 and 2003 exams

• 2001 and 2002 exams

• 2010 exam

After you all get a chance to look through all (lucky?) seven of these prior exams, I may post a few more.

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.

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.

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:

Download Berman full mid-term for 2014 crim law

Download Basic 2014 mid-term exam scoresheet

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.

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.

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:

  Download Berman 2014 Criminal Law Mid

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. 

 

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

(3) Sentencing
    (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)

INTRODUCTION

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.

SEXUAL ASSAULT

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

“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

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.

Download 2014 sex offense survey results