6 Chapter Six: Crimes Against the Person


In this chapter, we consider offenses that involve the threatened or actual use of force against another person, or the infliction of some kind of bodily injury. This category of offenses is often labeled “Crimes against the person,” a term that emerged at common law but is now replicated in many contemporary penal codes. Crimes against the person are crimes against individual victims, but that is not the only factor that makes them “against the person.” In the typical usage, “against the person” means “against the body”: crimes against the person are crimes that involve injuries or threats to the physical body of a victim. Some courts and commentators equate the category “crimes against the person” with the phrase “violent crime,” and in this chapter we will also explore the classification of certain offenses as “violent.” We will focus on assault, sexual assault, and homicide in this chapter, but many other offenses – including robbery and arson, both discussed in Chapter Five – have been classified as violent on at least some occasions. As you read, look for both patterns of commonality and points of divergence in the ways that different places, at different times, have classified conduct as violent, or violence as criminal.

The offenses discussed in this chapter are important for several reasons. To many law students and lawyers, and indeed to many non-specialists, crimes such as homicide or sexual assault represent the “core” of criminal law, the type of conduct that most warrants criminalization. In an era in which American criminal law is subject to extensive criticism and many commentators have argued for abolition of much of the criminal legal system, crimes against the person may pose a particular challenge. Even if some types of harmful or unpleasant conduct are best addressed through non-criminal legal measures, the anti-abolitionist might argue, murder and rape are acts whose very labels invoke criminal law. As you consider how society should best respond to acts of violence that are presently punished as homicides or assaults, you should be attentive to variations in the legal definitions of those terms and discretion in their application.

By the end of this chapter, you should understand the typical components of assault, sexual assault, and homicide, and you should be familiar with interpretive questions that arise frequently in relation to these offenses. The offenses in this chapter will allow you to develop further your understanding of mens rea, or mental states, since the specific mental state that accompanies the infliction of an injury often makes the difference between one type of assault or another, or one type of homicide versus another. And as in every chapter, you should use the materials here to expand and deepen your understanding of criminal law in practice, with specific focus on the interaction of criminalization, enforcement, and adjudication decisions.

This chapter also introduces a few important topics that have not yet been addressed in depth, but that are relevant even beyond the category of crimes against the person: omission liability, causation, and affirmative defenses. Omission liability, or the imposition of criminal liability for failing to act rather than for acting in a prohibited way, was addressed briefly in Chapter Two, but here we’ll consider it in more detail. Principles of causation are relevant to many criminal offenses, but they arise especially often in the types of crimes addressed in this chapter. And finally, affirmative defenses are a special type of defense argument that we will consider in this chapter (and again later, in Chapter Ten).

We begin our study of crimes against the person with assault. Then we move on to homicide, and finally, at the end of the chapter, we consider rape or sexual assault. As is probably already clear, the factual backgrounds of the cases in this chapter are often disturbing. Please be prepared to encounter sensitive and potentially unsettling material.


Minnesota Stat. § 609.02

Subd. 10. Assault. “Assault” is:
(1) an act done with intent to cause fear in another of immediate bodily harm or death; or

(2) the intentional infliction of or attempt to inflict bodily harm upon another.

§ 609.221. Assault in the first degree

Subd. 1. Great bodily harm. Whoever assaults another and inflicts great bodily harm may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $30,000, or both.

STATE of Minnesota


Alie Christine Theodore DORN

Supreme Court of Minnesota
887 N.W.2d 826

December 7, 2016

MCKEIG, Justice.

Appellant Alie Dorn [was convicted a]fter a bench trial … of first-degree assault under Minn. Stat. 609.221, subd. 1 (2014) (great bodily harm)…. Dorn maintains that the evidence was insufficient to convict her of first-degree assault because (1) she did not intentionally harm [the victim], and (2) her actions did not “inflict” bodily injury, which Dorn contends requires direct causation. We affirm.


On July 20, 2013, appellant Alie Dorn, then 22 years old, attended a large outdoor party near Thief River Falls in Marshall County. D.E., then 19 years old, also attended. Most people at the party, including Dorn and D.E., were drinking alcohol. Dorn and D.E. did not know each other, but at approximately 1:00 a.m., they were standing about 5 feet away from each other next to a large bonfire. The bonfire was made of wooden pallets… and by 1:00 a.m. it had burned down to embers.

Within earshot of Dorn, D.E. told his friend that Dorn looked like a drug dealer. Dorn overheard and replied, “What?” D.E. repeated that Dorn looked like a drug dealer. Dorn reacted by pushing D.E. in the chest using two hands. D.E. lost his balance and took a step or two backwards toward the fire. Dorn asserts that D.E. then “came at” her, failing to heed the “fair warning” of her first push, at which point she “shoved” D.E. in the chest a second time, again using two hands. D.E. contests Dorn’s allegation that he came at her, asserting that he never regained his balance before Dorn shoved him a second time. Both agree that D.E. then fell and landed on his right side in the burning embers, sustaining significant burn injuries.

… Dorn told police that she “shoved” D.E. to get him out of her personal space because he was “in [her] face,” “saying a bunch of stuff,” “calling [her] a drug dealer,” and “standing close” to her. She said she did not intend to push D.E. into the fire. [D.E. did not touch or attempt to touch Dorn, and Dorn has not appealed the district court’s finding that she did not act in self-defense.]

Following a bench trial, the district court convicted Dorn of first-degree assault… The court of appeals affirmed…. We granted Dorn’s petition for review.


[First-degree assault-harm requires “great bodily harm,” which includes “bodily injury … which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ.” Dorn does not dispute that D.E.’s injuries constituted great bodily harm.] … [But] Dorn argues that the evidence was insufficient to satisfy the definition of assault-harm … because she did not intentionally harm D.E., and her actions did not directly cause D.E.’s injuries. Dorn’s sufficiency challenge requires us to address the mens rea, actus reus, and causation required for assault-harm….


The application of the law to Dorn’s conduct requires an evaluation of the sufficiency of the evidence. We will not disturb the verdict if the factfinder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty…. We “view the evidence in the light most favorable to the verdict and assume that the factfinder disbelieved any testimony conflicting with that verdict.” This standard applies to both bench trials and jury trials.


We first consider whether Dorn possessed the mens rea required for assault-harm. “Mens rea is the element of a crime that requires ‘the defendant know the facts that make [her] conduct illegal.’” Without this mens rea element, a statute imposes strict criminal liability. Strict-liability statutes are “generally disfavored,” and therefore, “legislative intent to impose strict criminal liability must be clear.”

In State v. Fleck (Minn. 2012), we concluded that assault-harm requires only general intent. General intent is satisfied when a defendant “intentionally engag[ed] in the prohibited conduct.” In other words, “a general-intent crime only requires proof that ‘the defendant intended to do the physical act forbidden, without proof that [she] meant to or knew that [she] would violate the law or cause a particular result.’ ” Further, the defendant must do the act of her own volition or free will.

For assault-harm, “[t]he forbidden conduct is a physical act, which results in bodily harm upon another.” Specifically, assault-harm requires “only an intent to do the prohibited physical act of committing a battery. The State must therefore prove that “the blows to complainant were not accidental but were intentionally inflicted.”

…[I]n proving the mens rea element of general-intent crimes, the State need not show that the defendant “meant to or knew that [she] would violate the law or cause a particular result.” [To commit assault-harm,] a defendant need only intend “to do the prohibited physical act of committing a battery.” Nothing in [our precedents] suggests that the defendant must intend to commit a battery; rather, the defendant need only intend to commit an act that constitutes a battery.

This standard does not impose strict liability because it requires the defendant to “know the facts that make [her] conduct illegal.” Specifically, for assault-harm, a defendant must intend the act that makes her conduct a battery; in other words, she must intentionally apply force to another person without his consent. See II.B., infra. If, instead, we required the intent to commit a battery, a defendant would not only need to know the facts that make her conduct illegal, but would also need to know that her conduct breaks the law. It is well settled, however, that a mistake of law is generally not a defense to a general-intent crime….

The evidence is sufficient to establish that Dorn possessed the mens rea required for assault-harm. Indeed, Dorn admits that she “shoved” D.E. to get him out of her personal space. She does not contend that she pushed D.E. accidentally or involuntarily. Dorn may not have understood that her conduct constituted an unlawful battery, or that it would result in bodily harm. Dorn did, however, intentionally apply force to another person, which satisfied the mens rea element of assault-harm.


Next, we consider whether Dorn’s conduct constituted a battery, and therefore satisfied the actus reus required for assault-harm. The court of appeals determined that Dorn’s conduct constituted a battery because she applied physical force to D.E. In Minnesota, the separate crime of battery has been incorporated into the definition of assault. At common law, criminal battery was “the intentional application of unlawful force against the person of another.” “Force” was “satisfied by even the slightest offensive touching.”

… Dorn correctly points out that the language of the assault-harm definition does not include the word “battery.” Rather, the language requires the “infliction” of bodily harm. “Inflict” means “to lay (a blow) on” or “cause (something damaging or painful) to be endured.” The definitions of “battery” and “inflict” are therefore similar, requiring the State to show that the defendant engaged in nonconsensual physical contact.

The evidence is sufficient to show that Dorn’s conduct constituted a battery or “infliction” of harm. Dorn pushed D.E. twice in the chest with two hands, hard enough to cause him to lose his balance. Dorn admitted that her actions were not consensual or friendly. Rather, Dorn “shoved” D.E. to get him out of her personal space because he was “in [her] face,” “saying a bunch of stuff,” “calling [her] a drug dealer,” and “standing close” to her. She characterized her first push as “fair warning.” At that point, Dorn had committed a battery because she intentionally applied nonconsensual force against D.E. She committed a second battery when she shoved D.E. again. Both of these actions also “inflicted” harm because she imposed something unpleasant, “a blow.” As such, Dorn’s conduct satisfied the actus reus element of assault-harm.


Finally, we consider whether Dorn’s conduct was the legal cause of D.E.’s injuries. The Legislature used the word “cause” in the assault-fear provision, but chose the word “infliction” for the assault-harm provision. Dorn argues that “inflict” is a stricter standard than “cause” and requires direct, not just proximate or “substantial factor,” causation. See State v. Gatson (Minn. 2011) (explaining that under a homicide statute in which the word “cause” is used, the State need only prove that the defendant’s acts were a “ ‘substantial causal factor’ leading to the death”); see also State v. Olson (Minn. 1989) (explaining that a defendant may rebut substantial causation by establishing that “intervening conduct [was] the sole cause of the end result”).

Dorn contends that she did not inflict bodily harm because her pushes did not harm D.E. directly; rather, D.E. was injured only because he tripped over debris and stumbled into the fire. The district court did not make a finding as to whether D.E. tripped over debris, concluding that this determination was not essential because “[D.E.]’s movements were initiated by [Dorn]’s actions.” The court of appeals held that the same “substantial causal factor” standard that applies to “cause” also applies to “infliction,” and that Dorn failed to identify a genuine superseding cause under this standard.

…Assuming without deciding that an “infliction” requires direct causation as Dorn argues, the evidence is sufficient to show that Dorn directly caused D.E.’s bodily harm. Even if D.E. stumbled on debris as he fell, Dorn pushed D.E. hard enough to cause him to lose his balance within a few feet of hot embers, and D.E. fell into the fire within moments of Dorn’s push. The causation standard for assault-harm is therefore satisfied, even under Dorn’s narrower proposed interpretation.

Thus, the evidence is sufficient to sustain Dorn’s conviction for first-degree assault….


Notes and questions on State v. Dorn

  1. At common law, the crime of battery was an intentional and offensive (unwanted) use of physical force against another person; the crime required actual physical contact. Assault was usually defined as an attempted battery – an effort to use offensive force against someone else, but not necessarily a successful effort. Assault did not require actual touching. As states codified their criminal laws, many eliminated this distinction between assault and battery and instead adopted a broadly defined assault offense like the one you see in Dorn, which encompasses both threats to use force and actual applications of force. The threat prong of assault is often defined, again like the Minnesota statute, as acting with intent to put another person in fear of death or immediate bodily harm.
  2. The statutory approach described above means that “assault” now covers a huge range of conduct, from an angry look and a raised fist all the way to a brutal or even deadly physical attack. When we think in terms of threatening conduct rather than actual physical contact, many if not most of us have been victims of assault at one point or another. Thinking again of threatening conduct, perhaps many of us have also committed the offense. Jurisdictions frequently subdivide assault into narrower categories, perhaps using degrees (first-degree assault, second-degree assault, etc.) or distinguishing between “simple assault” and “aggravated assault.” For example, Georgia defines simple assault as the attempt to inflict a violent injury or the placing of another person in fear of injury. Aggravated assault occurs when an otherwise simple assault is accompanied by an intent to murder, rape, or rob, or when the defendant uses a deadly weapon, or when the defendant discharges a firearm from a motor vehicle. Note that in Georgia, neither simple nor aggravated assault requires actual physical contact with a victim or actual injury. See Ga. Code Ann. §§ 16-5-20; 16-5-21. The federal Bureau of Justice Statistics (BJS) collects data on crime and criminal prosecutions nationwide, and it uses generic definitions of crimes to create some consistency notwithstanding variations in state statutes. BJS defines “simple assault” as “an unlawful physical attack or threat of attack,” and “aggravated assault” as “an attack or attempted attack with a weapon, regardless of whether injury occurred, and an attack without a weapon when a serious injury results.” See https://bjs.ojp.gov/topics/violent-crime. Notice that BJS classifies both aggravated and simple assaults as “violent crime.” Some courts have taken a narrower approach and held that a simple assault, such as a threat of harm that does not involve a weapon or an actual injury, is not a violent crime.
  3. Among the offenses that are labeled as violent, assault tends to be the most frequently charged. It is not a direct source of a large portion of prison sentences, since assault convictions are frequently punished with non-custodial sentences or sentences in jail rather than prison. (“Jail” facilities are usually designed for short-term confinement for persons awaiting trial or sentenced to a year or less of custody; prisons are designed for longer term confinement for persons with sentences of more than one year in custody.). But assault convictions are a significant source of America’s “violent crime” rates, and assault convictions contribute indirectly to mass incarceration in the following way: Many jurisdictions impose much longer prison sentences on defendants with prior convictions for violent crime. Thus, a person convicted of assault who is later charged with another offense is more likely to serve a lengthy prison sentence.
  4. For serious forms of assault that require an actual injury, the issue of causation becomes important. This issue is also important in many homicide cases, since a homicide conviction requires proof that the defendant caused the victim’s death. We’ll explore causation principles in more detail in the homicide section of this chapter, but use State v. Dorn to begin identifying the terminology and basic ideas. How did Alie Dorn support her claim that she was not the cause of the victim’s burn injuries? Why did the court reject her argument?
  5. The Dorn court characterizes assault-harm as a “general intent” crime, which should bring to mind the discussion of “general intent” and “specific intent” offenses in Chapter Five. What is the mens rea of assault-harm, according to the court? How does the court’s description of the required mental state differ from the mental state requirement that the defense would adopt?

* * * * *

Colorado Rev. Stat. § 18-3-203

(1) A person commits the crime of assault in the second degree if:

… (b) With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or

(c) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, emergency medical care provider, or emergency medical service provider from performing a lawful duty, he or she intentionally causes bodily injury to any person; or

(c.5) With intent to prevent one whom he or she knows, or should know, to be a peace officer, firefighter, or emergency medical service provider from performing a lawful duty, he or she intentionally causes serious bodily injury to any person; or

(d) He recklessly causes serious bodily injury to another person by means of a deadly weapon; or…

(i) With the intent to cause bodily injury, he or she applies sufficient pressure to impede or restrict the breathing or circulation of the blood of another person by applying such pressure to the neck or by blocking the nose or mouth of the other person and thereby causes bodily injury.

The PEOPLE of the state of Colorado, Petitioner


Dearies Deshonne Austin LEE, Respondent

Supreme Court of Colorado
476 P.3d 351

November 23, 2020

JUSTICE GABRIEL delivered the Opinion of the Court.

This case requires us to determine whether, under prevailing Colorado equal protection principles, a defendant may be charged with second degree assault based on conduct involving strangulation under both the deadly weapon subsection of the second degree assault statute, and the strangulation subsection of that same statute.…

I. Facts and Procedural History

[Dearies Deshonne Austin] Lee had been together with the alleged victim, T.M., for about two years, and the two had a child but were separated at the time of the incident in question. According to T.M., Lee came to her apartment to pick up their child and demanded that T.M. gather the child’s belongings. Lee allegedly became frustrated that T.M. was not moving fast enough, and he became violent, ultimately grabbing T.M. by the neck and pushing her onto her bed. According to T.M., Lee continued to apply pressure to her neck until she lost consciousness.

T.M. subsequently regained consciousness and went into the living room to get her daughter. There, Lee allegedly confronted her again and, according to T.M., pushed her onto the couch and again began to strangle her, causing her to lose consciousness a second time.

Based on these allegations, the People charged Lee with, among other things, two counts of second degree assault under the strangulation subsection of the applicable statute, 18-3-203(1)(i). Eight months later, however, the People moved to add two additional counts of second degree assault under the deadly weapon subsection, 18-3-203(1)(b), asserting that Lee had used his hands as a deadly weapon. The trial court granted this motion.

Thereafter, Lee moved to dismiss the added counts, arguing, among other things, that those counts, as charged, violated his right to equal protection under the Colorado Constitution. The trial court held a hearing on Lee’s motion and ultimately granted that motion, dismissing the added counts on equal protection grounds. [The court of appeals affirmed.] … The People then petitioned this court for certiorari review, and we granted their petition…

II.B. Equal Protection

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” “Although the Colorado Constitution contains no equal protection clause, we have construed the due process clause of the Colorado Constitution to imply a similar guarantee.” Dean v. People, 366 P.3d 593 (2016). “Equal protection of the laws assures the like treatment of all persons who are similarly situated.”

In the criminal law context, the United States Supreme Court has concluded that “where a defendant’s conduct violates more than one criminal statute, the government’s choice to prosecute under the statute with the harsher penalty does not violate federal equal protection, absent evidence of selective enforcement based on a prohibited standard such as race, religion, or other arbitrary classification.” This court, however, has yet to adopt the federal equal protection standard, the People did not ask us to do so in this case, and thus whether we should adopt the federal standard is not now before us. To the contrary, the parties appear to agree on the applicable principles of Colorado law, and we therefore turn to those principles.

We have long held, in contrast with the above-noted federal precedent, that “Colorado’s guarantee of equal protection is violated where two criminal statutes proscribe identical conduct, yet one punishes that conduct more harshly.” [See United States v. Batchelder (1979).] Along the same lines, we have said that “separate statutes proscribing with different penalties what ostensibly might be different acts, but offering no intelligent standard for distinguishing the proscribed conduct, run afoul of equal protection under state constitutional doctrine.” Accordingly, we have opined that to overcome an equal protection challenge, “a person of average intelligence” must be able to distinguish the conduct proscribed by one offense from the conduct proscribed by another. Moreover, the distinction between the two offenses must be “sufficiently pragmatic” to “permit an intelligent and uniform application of the law.” …

C. Application

Turning, then, to the facts of this case, we start by examining the statutory language of the two provisions at issue.

[The court quoted the statutory definition of second degree assault-strangulation, reprinted above.] Second degree assault-strangulation is a class four felony and an extraordinary risk crime, subject to a potential prison sentence of two to eight years.

A person commits the crime of second degree assault-bodily injury with a deadly weapon if, “[w]ith intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon.” § 18-3-203(1)(b). A deadly weapon, in turn, is defined as “(I) A firearm, whether loaded or unloaded; or (II) A knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury.” § 18-1-901(3)(e). In accordance with this definition, we have opined that hands may be deadly weapons if in the manner they are used, they are capable of producing death or serious bodily injury…. Second degree assault-bodily injury with a deadly weapon, like second degree assault-strangulation, is a class four felony, but because it is also a per se crime of violence, it subjects a defendant to a potential prison sentence of five to sixteen years.

…[Lee] contends that applying [the assault with deadly weapon] provision to an act of strangulation violates prevailing Colorado equal protection principles. To decide this issue, we must determine whether subsections 18-3-203(1)(b) and (1)(i) proscribe identical conduct with one of these subsections punishing that conduct more harshly than the other. The parties do not appear to dispute that the penalties under these subsections differ. Accordingly, we must decide whether these provisions proscribe identical conduct or, as pertinent here, whether they proscribe what ostensibly might be different acts but offer no intelligent standard for allowing a person of average intelligence to distinguish the conduct proscribed by one provision from that proscribed by the other.

As noted above, subsection 18-3-203(1)(b) and subsection 18-3-203(1)(i) both require proof that the perpetrator intended to cause bodily injury and, in fact, caused such injury. The distinction between the two lies in the means used to cause that injury. Subsection 18-3-203(1)(b) requires the use of a deadly weapon. Subsection 18-3-203(1)(i), in contrast, requires proof of bodily injury due to strangulation. Accordingly, on their face, these provisions ostensibly proscribe different acts. The question thus becomes whether they offer any intelligent standard for distinguishing between such acts.

…[To] decide whether second degree assault-strangulation and second degree assault-bodily injury with a deadly weapon proscribe identical conduct, we must consider whether strangulation, as it is defined in the second degree assault statute, will always involve the use of a deadly weapon….

Our case law “contemplates a two-step inquiry in determining whether an instrument is a deadly weapon. First, the object must be used or intended to be used as a weapon. Second, the object must be capable of causing serious bodily injury.” A “ ‘weapon’ is defined as ‘an instrument of offensive or defensive combat: something to fight with: something (as a club, sword, gun, or grenade) used in destroying, defeating, or physically injuring an enemy.’ ”

In the case of strangulation, we have little difficulty concluding that the perpetrator is using an instrument—whether hands or an object of some kind—as a weapon because in such a case, the perpetrator is using the instrument to injure the victim. In addition, when a person is applying sufficient pressure to impede or restrict another’s breathing or blood circulation, as required for second degree assault-strangulation, the person is obviously using the instrument of strangulation in a manner capable of causing serious bodily injury, whether or not serious bodily injury actually results: “When a victim is strangled, she is at the edge of a homicide. Unconsciousness may occur within seconds and death within minutes …. In ‘strangulation,’ external compression of the neck can impede oxygen transport by preventing blood flow to or from the brain or direct airway compression.”

Because, in a strangulation, the instrument being used to strangle the victim (whether hands or otherwise) is always being used as a weapon and will always be at least capable of causing serious bodily injury or death, we conclude that strangulation will always involve the use of a deadly weapon. As a result, with regard to acts of strangulation, we further conclude that subsections 18-3-203(1)(b) and (1)(i) proscribe identical conduct. And because these provisions proscribe identical conduct but the deadly weapon subsection punishes that conduct more harshly than the strangulation subsection, we conclude that under prevailing Colorado equal protection principles, a defendant may not be charged with second degree assault based on conduct involving strangulation under both subsections. Rather, the defendant must be charged under the strangulation provision.

In so concluding, we are not persuaded by the People’s various hypotheticals purporting to show distinctions between second degree assault-strangulation and second degree assault-bodily injury with a deadly weapon. In one of the People’s hypotheticals, an assailant lightly places his or her hands over the mouth or nose of a victim, “applying sufficient pressure to impede or restrict breathing for a matter of moments.” In the People’s view, such a scenario would satisfy the elements of second degree assault-strangulation but not those of second degree assault-bodily injury with a deadly weapon. For several reasons, we disagree.

First, as noted above, whenever a person, with the intent to cause bodily injury, causes bodily injury by applying sufficient pressure to the neck or by blocking the nose or mouth of another, thereby impeding or restricting the other person’s breathing or blood circulation, the hands or other instrument used to apply such pressure will have been used in a manner capable of producing death or serious bodily injury…. Thus, by definition, the perpetrator’s hands or other instrumentality of strangulation will have been used as a deadly weapon, even with allegedly “light” pressure.

Second, to the extent that the People’s hypotheticals envision scenarios in which the perpetrator is putting a hand over a victim’s mouth with allegedly “light” pressure and solely to keep the victim from screaming, it is not clear that this conduct would even constitute second degree assault-strangulation, which, as noted above, requires both an intent to cause bodily injury and resulting bodily injury.

Third, to the extent that the People’s hypotheticals turn on the degree of injury caused to the victim (e.g., bodily injury as opposed to serious bodily injury), such distinctions are not relevant to distinguishing between second degree assault-strangulation and second degree assault-bodily injury with a deadly weapon because the statutory scheme already addresses differences based on the degree of injury: strangulation resulting in bodily injury constitutes second degree assault under subsection 18-3-203(1)(i), and strangulation resulting in serious bodily injury constitutes first degree assault….

Finally, in our view, the People’s suggestion that the distinction between subsections 18-3-203(1)(b) and (1)(i) should somehow turn on the amount of pressure employed or the length of time a perpetrator applies such pressure does not articulate “a sufficiently pragmatic difference to permit an intelligent and uniform application of the law.” In particular, the People do not explain when, in the course of a strangulation, the hands or other instrumentality would cross the line from a non-deadly weapon to a deadly one, and we cannot discern a pragmatic standard that would allow a person of average intelligence to make such a determination.

For these reasons, we conclude that under prevailing Colorado equal protection principles, a defendant may not be charged with second degree assault based on conduct involving strangulation under both the deadly weapon and strangulation subsections of the second degree assault statute but rather must be charged under the strangulation subsection.

Although our analysis is based on the plain language of the statutory provisions at issue and we therefore need not resort to other tools of statutory construction, we note that the legislative history of subsection 18-3-203(1)(i) supports our conclusion here.

The General Assembly added strangulation subsections (and corresponding sentencing provisions) to the assault statutes in 2016. These subsections were intended to institute a change from prosecutors’ past practice. See Gen. Assemb. Legis. Council, Research Note for H.B. 16-1080, 70th Gen. Assemb., 2d Reg. Sess. (2016). Specifically, prior to these amendments, prosecutors charged strangulation under the deadly weapon subsection of the second degree assault statute. See Hearings on H.B. 16-1080 before the H. Judiciary Comm., 70th Gen. Assemb., 2d Sess. (Feb. 9, 2016) (statement of Mark Hurlbert, Assistant Arapahoe County District Attorney). Such a charge, however, frequently required expert testimony, and obtaining such testimony was not always easy, particularly in rural jurisdictions. As a result, strangulation often resulted in convictions of the lesser offense of misdemeanor third degree assault. See id. (statement of Rep. Mike Foote, sponsor of H.B. 16-1080).

To address these issues, one goal of the 2016 amendments was to create a specific strangulation statute that dispensed with proof of the deadly weapon element. Id. (statement of Rep. Foote) (“The elements [of subsection (1)(i)] don’t require the finding of hands as a deadly weapon.”). And a second goal was to elevate all forms of strangulation resulting in bodily injury to a felony in order to achieve more consistency in charging decisions and sentencing statewide. See Hearings on H.B. 16-1080…. Toward that end, the legislation’s sponsor stated that he envisioned that all strangulations would be prosecuted under this new provision. Hearings on H.B. 16-1080 before the H. Judiciary Comm., 70th Gen. Assemb., 2d Sess. (Feb. 9, 2016) (statement of Rep. Mike Foote).

In our view, this legislative history fully supports our conclusion that a defendant in Lee’s position must be charged under the strangulation, and not the deadly weapon, subsection of the second degree assault statute. In addition to violating the equal protection principles discussed above, concluding otherwise would undermine the legislature’s goal of achieving more consistency in charging decisions and sentencing statewide….

III. Conclusion

For the reasons set forth above, the deadly weapon subsection of the second degree assault statute, subsection 18-3-203(1)(b), and the strangulation subsection of that statute, subsection 18-3-203(1)(i), proscribe identical conduct, yet the deadly weapon subsection punishes that conduct more harshly than does the strangulation subsection. Accordingly, we conclude that under prevailing Colorado equal protection principles, a defendant may not be charged with second degree assault based on conduct involving strangulation under both the deadly weapon and strangulation subsections. Rather, the conduct must be charged under the strangulation subsection. We therefore affirm the judgment of the division below.


JUSTICE SAMOUR, dissenting.

“Two roads diverged in a wood, and [this court] took the one less traveled by.” As in Robert Frost’s seminal poem, “The Road Not Taken,” that decision “has made all the difference.” But here, the path less trod is not a desirable one: This court’s stubborn loyalty to Colorado’s unique equal protection doctrine—one that has been soundly rejected by the U.S. Supreme Court and the overwhelming majority of jurisdictions—infringes on the charging discretion of the executive branch of government with no discernible justification beyond “my house, my rules.” … And while our court’s inexplicable resistance to the logical force of the U.S. Supreme Court’s unanimous decision in United States v. Batchelder (1979) is reason enough for me to dissent, I further believe that, even under Colorado’s peculiar equal protection doctrine, there is no due process violation here. Accordingly, I respectfully dissent on both grounds…

Notes and questions on People v. Lee

  1. In your study of enforcement decisions in Chapter Three, you read State v. Cissell, in which the Supreme Court of Wisconsin found no due process or equal protection violation in Wisconsin’s two statutes that both criminalized failure to support one’s child, identical for all practical purposes except in the penalties they imposed. As noted in that earlier discussion, the approach of the Cissell court is endorsed by the U.S. Supreme Court with respect to the federal constitution, and followed in most states: a jurisdiction can enact overlapping or identical statutes that punish the same conduct, but impose different penalties. Prosecutors then have the discretion to choose which statute to use (and thus to determine what sentencing range will apply), and this structure does not violate the federal constitution or most state constitutions. As the dissenting opinion points out in People v. Lee, Colorado is an outlier on this specific issue. The Colorado Supreme Court has interpreted Colorado’s own state constitution to prohibit that kind of prosecutorial discretion. Thus, under Colorado law, when two statutes punish identical conduct but authorize different penalties, the defendant must be charged with the offense that carries the lesser penalty. What are the different penalties for assault by strangulation, 18-3-203(i), and assault by deadly weapon, 18-3-203(b)?
  2. The dissent criticizes the majority for what it calls the “my house, my rules” approach. What, if anything, is wrong with “my house, my rules” as justification for Colorado’s unique approach? If you were a state court judge deciding whether to follow the majority approach (as in Cissell) or the Colorado approach, what factors would you consider? Which precedent would you follow?
  3. Setting aside the equal protection / overlapping statutes issue, People v. Lee is fairly representative of assault prosecutions in other respects. For example, it is not unusual for jurisdictions to interpret the term “deadly weapon” broadly, as the Colorado courts have done. Many other jurisdictions have similarly held that fists or hands can constitute “deadly weapons” if they are used in a sufficiently violent manner. Note that these interpretations do not mean that all assaults by fist will in fact be charged as assaults with a deadly weapon. Instead, the broad interpretations further expand the discretion of prosecutors, who have the option, but not the obligation, to charge a more serious form of assault.
  4. People v. Lee is also useful as a source of insight about criminalization choices. Why did the Colorado General Assembly (the state legislature) choose to add a specific strangulation statute even though the state had already criminalized assault by deadly weapon?
  5. Another respect in which Lee is typical of many assault cases: the violence occurred in the context of an intimate relationship. Should domestic violence be codified as a separate offense? Many jurisdictions do take that approach. Indeed, assault of a spouse, intimate partner, or family member is one offense for which many jurisdictions have enacted mandatory arrest or mandatory prosecution statutes, an exception to the general rule of broad enforcement discretion enjoyed by police and prosecutors. However, courts have not always viewed those mandatory enforcement rules as actually creating an enforceable legal duty to arrest (or prosecute). See, e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005). Perhaps surprisingly, some advocates for victims of domestic abuse have questioned whether mandatory arrest and prosecution, and indeed the use of criminal interventions more broadly, is the best way to address problems of intimate violence. See Leigh Goodmark, Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence (2018).

* * * * *


Kentucky Revised Statutes 508.010. Assault in the first degree.
A person is guilty of assault in the first degree when:

(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.


[An additional statute relevant to the next case is quoted within the court’s opinion.]

COMMONWEALTH of Kentucky, Appellant



Supreme Court of Kentucky
516 S.W.3d 803

April 27, 2017

Opinion of the Court by Justice HUGHES:

Kentucky Revised Statute (KRS) 501.030, one of the foundational provisions of the Penal Code, provides generally that a person may not be found guilty of a criminal offense unless

(1) He has engaged in conduct which includes a voluntary act or the omission to perform a duty which the law imposes upon him and which he is physically capable of performing; and (2) He has engaged in such conduct intentionally, knowingly, wantonly or recklessly as the law may require, with respect to each element of the offense.

(emphasis supplied). These are the Penal Code versions of the ancient “actus re[u]s” and “mens rea” requirements for criminal liability. As the emphasized portion of the statute indicates, the Penal Code allows for criminal liability premised upon a person’s failure to act, but only in limited circumstances. At the time of the alleged omission, the defendant must have been under a legal duty to act (as opposed to a moral or some other sort of extra-legal duty), such that his or her inaction amounted to a breach of that duty. And even then liability is appropriate only if the duty was one which the person was physically capable of performing….


In October 2010, in response to reports that a “boy” was being “kept” in deplorable conditions, Monroe County police officers, fire and rescue workers, and a social worker … were all summoned to a mobile home … in Tompkinsville. The home was owned by Donna Bartley, but at the time its only occupants, aside from a large pack of dogs, were two people: Rita Mitchell, Bartley’s long-time friend and until recently house-mate, and Bartley’s then twenty-four year-old son, a young man we shall refer to as James.

Mitchell and James are both impaired and both have received Social Security Disability Benefits for several years. …Mitchell testified that in October 2010 and for some time prior, she suffered from chronic obstructive pulmonary disease (COPD), a condition which limited her mobility and for which she required an artificial oxygen supply. She also suffered, she testified, from chronic depression, which in the fall of 2010 had become acute and disabling.

James suffers from cerebral palsy, significant intellectual disability, and possibly from autism. These significant conditions have, throughout his life, made him highly dependent on others for the provision of even life’s most basic necessities, such as food, clothing, shelter, mobility, and health care. The record does not indicate how Bartley managed to care for James during his first seven years, but according to Mitchell’s testimony, when James was about seven, Bartley and Mitchell, who had known each other from childhood, agreed to become house-mates. Bartley was to provide the residence and to manage the household in exchange for Mitchell’s help with the cooking, cleaning, and care of James as well as Mitchell’s contribution of her disability benefits to the household income. This arrangement worked well enough that it continued even after Bartley had a second and then a third child, a son and a daughter, for both of whom Mitchell helped to care. A social worker testified that he visited the Bartley residence in 2003, while Bartley and Mitchell were caring for all three children, and found the home clean and orderly and the children, including James, adequately provided for.

By late spring or early summer of 2010, however, Bartley and Mitchell’s arrangement had begun to break down. …Bartley and her two younger children, by then teenagers, moved to a new home in Glasgow, Kentucky, while Mitchell and James were left behind in the Monroe County mobile home…. Bartley increasingly disassociated herself from her son and Mitchell…. Although she remained in control of the purse strings, including Mitchell’s and James’s social security benefits, Bartley ceased to make the mortgage payments on the mobile home; ceased to provide for trash removal; ceased to pay for water service, which was discontinued in August 2010; and visited the mobile home only on weekends, delivering food and a few gallons of water.

Mitchell was unable to cope with this virtual abandonment. We have described elsewhere the deplorable condition in which the rescue workers found the Monroe County mobile home in October 2010. See Bartley v. Commonwealth, 400 S.W.3d 714 (Ky. 2013). Suffice it to say here, that by then trash had piled up outside the residence, the residence had been overrun by more than twenty semi-feral dogs, whose filth had accumulated on the floors and furniture, and Mitchell had apparently ceased making any effort to care for James, beyond perhaps giving him some water and the microwavable snack foods that Bartley provided. In a back room with the radio blaring to drown out the young man’s screams, the rescue workers found James naked on a bare mattress across which had been spread a sheet of plastic….

As bad as James’s plight was (and to a person the rescue workers testified that they had never before encountered a scene as wrenching), the treating physician testified that for James the outcome easily could have been [fatal]….

In December 2010 the Monroe County grand jury indicted Bartley and Mitchell. Both women were charged with first-degree criminal abuse of James, under KRS 508.100, and with first-degree assault, under KRS 508.010. With respect to both women, the latter charge alleged, among other things, that they had caused James serious physical injury by “severely neglecting to meet his physical needs.”

…The jury found both [defendants] guilty of first-degree assault, found Bartley guilty of first-degree (intentional) criminal abuse, and found Mitchell guilty of second-degree (wanton) criminal abuse. …[I]n December 2014, [the Court of Appeals] affirmed Mitchell’s second-degree criminal abuse conviction, but reversed her conviction for first-degree assault. With respect to the assault, the panel concluded that Mitchell could not be said to have assumed a legal duty to care for James, since she had done nothing to prevent Bartley, the biological mother, from providing that care in the first instance….

The Commonwealth contends that in so ruling the Court of Appeals erred….


As the discussions in Bartley and Staples v. Commonwealth (Ky. 2014) indicate, our trial courts have been confronted in recent years by a new generation of crime-by-omission cases, cases involving new forms of parental neglect and abuse and cases brought against non-parents for alleged failures to protect or care for the children of others. These cases have posed difficult and intertwined questions of both substance and procedure. This case is yet another of that sort.

As we explained in Bartley, “to proceed with a prosecution alleging a criminal omission, the Commonwealth must … identify a specific ‘legal duty,’ the breach of which would subject the defendant to criminal sanction. Any dispute about the existence of the alleged duty should be resolved by the trial court, and disputes about the facts giving rise to that duty in the particular case should be incorporated in the instructions for jury resolution.”

… In Bartley, we concluded that the Commonwealth’s failure to identify at the outset the specific “legal duty” Bartley was alleged to have breached did not amount to a palpable error. As we explained, a parent’s non-delegable duty to support and care for a disabled adult child has long been established in our law, both our statutory law and our case law….

As the Commonwealth notes, Mitchell’s appeal raises similar questions. In her case, too, it appears, the Commonwealth failed to make clear at the outset the specific “legal duty” Mitchell was alleged to have breached, and in her case, too, we are initially confronted with a question as to whether Mitchell adequately preserved that error. Inasmuch as Mitchell’s objections during trial were essentially the same as Bartley’s, we agree with the Commonwealth that she did not…. Accordingly, Mitchell is entitled to relief only if the error was palpable, i.e., only if the error was, or should have been, apparent, and then only if it resulted in “manifest injustice,” what we have characterized as either a skewed outcome or a proceeding “so fundamentally tainted … as to threaten [the] defendant’s entitlement to due process of law.”

Implicitly, at least, the Court of Appeals concluded that the error—the failure to specify Mitchell’s alleged duty to care for James—was indeed palpable. The panel relied on West v. Commonwealth (Ky. App. 1996) [for the proposition] that affirmative legal duties of care can arise in at least four distinct circumstances:

[F]irst, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

Although the Commonwealth did not specify any theory whereby Mitchell could be found to have breached a legal duty to care for James, the appellate panel understood the Commonwealth to have alleged only the fourth type of circumstance mentioned [above], i.e., that Mitchell had through her relationship with Bartley voluntarily assumed James’s care. In its view, however, Mitchell could not reasonably be found to have secluded James from the aid of others—at least from his mother’s aid—and thus, under West’s fourth scenario, she could not be deemed subject to assault liability for having failed to provide care that it was really Bartley’s duty to provide….

[The Commonwealth argues that] even if the Court of Appeals strict and literal reading of West’s fourth set of duty-creating circumstances accurately reflects the law, i.e., even if no legal duty of care arises from the voluntary assumption of a care-giving role provided there is no concomitant seclusion of the helpless person from all other caregivers, the appeals panel erred by disregarding evidence that Mitchell did indeed isolate James not only from the world at large, but from his mother as well. Bartley’s defense, in fact, based on snippets of Mitchell’s statements to investigators and her trial testimony, was that James’s situation only became distressing during the two or so weeks prior to his rescue, and during that period Bartley relied—carelessly, perhaps, but not criminally—on Mitchell’s repeated assurances that James was doing fine. That evidence was sufficient, according to the Commonwealth, to allow even a strict “voluntary assumption of duty” case against Mitchell to go to the jury.

More fundamentally, the Commonwealth contends that the appeals panel’s narrow construction of West’s fourth common-law duty category does not accurately reflect the law. Mitchell’s voluntary assumption of James’s care could rightfully be deemed to have ripened into a legal duty, a sort of in-loco-parentis duty, the Commonwealth implies, notwithstanding Bartley’s concomitant and arguably superior duty as a parent. The prosecutor focused on the seventeen-year duration of Mitchell’s care of James and the evidence that Bartley and Mitchell were, on some level, colluding to keep James from being cared for by others lest, as Mitchell testified, Bartley lose custody of James and his accompanying social security benefits. In these circumstances, the Commonwealth insists, Bartley’s duty ought not shield Mitchell from the consequences of her own….

We … agree with the Commonwealth that the evidence against Mitchell was sufficient to support potentially viable assault-by-omission theories. We thus further agree that the Court of Appeals panel erred by disregarding that potential and dismissing Mitchell’s assault charge altogether. Accordingly, the Court of Appeals’ opinion must be reversed.

As the Commonwealth’s argument also makes abundantly clear, however, the Commonwealth’s failure to specify the duty of care it was alleging against Mitchell had an utterly different effect on Mitchell’s case than its similar failure with respect to Bartley had on hers. In Bartley, the Commonwealth’s error meant little, since it was clear to all—parties, court, and jury alike—that Bartley was being prosecuted for injuries arising from the alleged breach of her parental duty, a legal duty well and clearly established. With respect to Mitchell, however, the Commonwealth’s failure to specify the legal duty (or duties) Mitchell was alleged to have breached meant much more.

It meant that no one had a clear idea how to respond to the evidence the Commonwealth presented, and so had to respond uncertainly. Mitchell could not tailor her defense to specific claims that a particular duty had arisen and been breached; the trial court had to rely on generalities in assessing Mitchell’s directed-verdict motion; and most importantly, the jury, having not been apprised that a particular legal obligation was being alleged and that moral obligation alone was not enough, was left to its own devices when asked to find whether or not Mitchell had “caused serious physical injury to [James] by severely neglecting to meet his needs.” Each of these uncertainties constitutes a serious flaw in the proceedings, and their combination, we are convinced, denied Mitchell a fundamentally fair trial as to the assault charge. The Commonwealth’s error in not specifying the legal duty it believed Mitchell had breached (and the court’s error in not insisting that it do so), was thus palpable…. [It] so tainted the trial as to threaten Mitchell’s entitlement to due process.

… In our view, there is clearly evidence in the record of this case that could support the finding of a legal duty on the part of Mitchell. … [But] the jury must receive a specific instruction on the nature of the duty which Mitchell owed to James and the alleged breach of that duty. Only then has the jury been given the necessary instruction on the law applicable to the criminal omission form of first-degree assault with which Mitchell has been charged.


In sum, we agree with the Court of Appeals, albeit on different grounds, that Mitchell is entitled to relief, but we also agree with the Commonwealth that the relief awarded by the appeals panel was not legally appropriate. The problem was not that the Commonwealth failed to introduce sufficient evidence of an assault…. The problem, rather, was that the Commonwealth failed adequately to specify the duty giving rise to assault-by-omission it was alleging, and that failure undermined the fairness of Mitchell’s trial. Mitchell’s remedy is thus not the dismissal of the assault charge, but rather the reversal of her assault conviction and sentence. Accordingly we reverse the Court of Appeals’ Opinion and remand this matter to the Monroe Circuit Court for additional proceedings consistent with this Opinion.

Notes and questions on Commonwealth v. Mitchell

  1. In Chapter Two, we discussed the concept of “actus reus” as well as the “voluntary act requirement.” The principle that a crime requires an actus reus, or a guilty act, is widely invoked as a constraint on criminalization choices that prevents legislatures from criminalizing mere thoughts in the absence of action. But doctrines of omission liability do permit the criminalization of inaction in some circumstances. The general rule is that omission liability requires a clear legal duty to act. That duty to act could come from the criminal statute itself, so a legislature could define a duty to act (such as a duty that persons with criminal convictions register with the authorities, as required by the statute in Lambert v. California). Or the duty to act could come from another source of law. Citing West v. Commonwealth, the Kentucky Supreme Court identifies four possible sources of duties to act that could then support criminal liability for an omission: a statute, a status relationship (such as parent-child), a contract, or a voluntary assumption of care while secluding the victim from other sources of care. Given these four categories, did Rita Mitchell have a legal duty to provide care to James, according to the Kentucky Supreme Court? What are the strongest arguments for or against finding such a duty?
  2. Recall (from Chapter Two) that courts treat “actus reus” and “voluntary act” as two separate requirements. The first term captures the idea that a crime should involve some act or conduct (or omission). The second emphasizes volition. The “voluntary act requirement” reflects an effort to distinguish voluntary acts from involuntary ones. Arguably, Kentucky law tries to distinguish voluntary omissions from involuntary ones: note the statutory requirement that an omission be one that the defendant “is physically capable of performing.”
  3. You are reading about omission liability in the context of an assault charge, but keep in mind that omission liability may be imposed for many different types of offenses – including, again, a failure to register as a convicted person if required by law to do so. Filing requirements that carry criminal penalties, such as a tax crime for failure to file, also rely on omission liability. As the Mitchell court notes, omission liability is used fairly often in cases of abuse and neglect, when parents or other designated caregivers are charged with failing to provide adequate care to their dependents.
  4. Can omissions be violent? At least some courts have answered in the affirmative. In United States v. Scott, 990 F.3d 94 (2d. Cir. 2021), the Second Circuit concluded that assault by omission and manslaughter by omission could be classified as “violent crimes” for purposes of federal sentencing enhancements if the offenses involved the intentional infliction of injury, even if the “infliction” was accomplished by a failure to act. The classification of crimes as “violent” is important, because many U.S. jurisdictions impose more severe sentences on a defendant who has prior convictions for “violent” offenses. Legal definitions of “violent crime” or “crimes of violence” often extend much more broadly to include any crime that involves conduct that creates a risk of physical injury, whether or not any injury is intended or accomplished. See Alice Ristroph, Criminal Law in the Shadow of Violence, 62 Ala. L. Rev. 571, 602-610 (2011).
  5. Rita Mitchell was charged with both first degree assault (the main focus of this opinion) and a separate offense of “criminal abuse.” She was convicted of second degree criminal abuse, which occurs when a person “wantonly abuses another person … and thereby … causes torture, cruel confinement, or cruel punishment….” Kentucky Rev. Statutes 508.110. Abuse, in turn, is defined under Kentucky law as “the infliction of physical pain, injury, or mental injury, or the deprivation of services by a person which are necessary to maintain the health and welfare of a person.” Kentucky Rev. Statutes 508.090(1). In a footnote not included in the edited opinion above, the Kentucky Supreme Court concluded that criminal abuse was a “result crime” that could be established by showing that a defendant, by either omission or commission, caused a given result (e.g., torture or cruel confinement). Mitchell had directly caused James’s confinement, the court concluded, and thus her conviction for criminal abuse did not require proof that she had a legal duty to care for James. See Mitchell, 516 S.W.3d 803, 812 n. 3.

Check Your Understanding (6-1)


Homicide is the umbrella term used to describe a group of offenses that all involve causing the death of another person. Murder and manslaughter are the most familiar categories of homicide. These categories existed and evolved in English common law centuries ago, and then were adopted in the American colonies and then in the states. The labels murder and manslaughter are still used in most modern statutory regimes. But jurisdictions may define other types of homicide as well, such as negligent homicide or vehicular homicide, and jurisdictions often divide murder and manslaughter into subcategories, such as first degree murder, second degree murder, and so on. The factors that differentiate murder from manslaughter, or first degree murder from lesser degrees, can again vary by jurisdiction. If you are trying to figure out how a particular killing is most likely to be classified, it is always a good idea to check the statutes of the specific jurisdiction where the killing took place. But with that said, there are some typical patterns that hold true across most jurisdictions. For example, murder statutes usually (but not always) require an intent to kill, while manslaughter or other forms of homicide often do not require intentional killing. This section aims to help you see both commonalities and variations in the law of homicide across different jurisdictions.

The actus reus of any homicide offense is usually simply stated: causing the death of another human being. The simplicity may be deceptive, though, because what it means to “cause” death is frequently contested in homicide cases. Several of the cases in this section will help you identify and apply the principles that courts use to evaluate causation.

The mens rea of homicide offenses, in contrast, varies much more widely. Indeed, the defendant’s mental state, or mens rea, is usually the distinguishing factor that separates different types of homicide. To get an idea of the types of mental states that have long been seen as relevant to the legal evaluation of a killing, consider the common law definition of murder as a killing with “malice aforethought.” Over time, in homicide law “malice aforethought” came to stand for not one single state of mind, but four different mental states. (The term malice is also sometimes used outside of homicide law; for one example, see the definitions of arson discussed at the end of Chapter Five.) The prosecution could establish malice aforethought by showing that the defendant acted with an intent to kill or an intent to cause serious bodily injury or extreme recklessness (sometimes described as acting with a “depraved heart” or an “abandoned and malignant heart”) or intent to commit a felony (“felony murder”). Any of these mental states could suffice to convict a defendant of murder. Common law manslaughter, on the other hand, was usually defined as a killing without malice. One form of manslaughter was an intentional killing “in the heat of passion,” or in response to some legally adequate form of provocation. Manslaughter also included unintentional killings, such as causing death through ordinary (but not extreme) recklessness, or causing death in the course of some unlawful but not felonious act (“misdemeanor-manslaughter”).

In today’s statutory world, different levels of homicide are codified by each jurisdiction, and the influence of common law categories is visible but not determinative. Most U.S. states divide the crime of murder into degrees; first-degree murder may require an intentional, premeditated killing, while second-degree murder may include killings by extreme recklessness or killings in the course of a different felony offense. Manslaughter is often but not always defined similarly to the common law definition. And many jurisdictions include a lesser category of homicide such as negligent homicide or vehicular homicide. Again, there are no universal definitions of any of these specific homicide offenses; always consult the relevant statute! Nevertheless, the cases below should help you get a sense of typical definitions.

The Basics of First Degree Murder

Kansas Stat. § 21-5402 (formerly 21-3401)

a) Murder in the first degree is the killing of a human being committed:

(1) Intentionally, and with premeditation; or

(2) in the commission of, attempt to commit, or flight from any inherently dangerous felony.

STATE of Kansas, Appellee,


Joseph Dodds MORTON, Appellant

Supreme Court of Kansas
86 P.3d. 535

March 26, 2004

The opinion of the court was delivered by BEIER, J.:

Defendant Joseph Dodds Morton appeals his first-degree murder and aggravated robbery convictions. He argues that he could not be convicted of first-degree murder on the combined theories of premeditation and felony murder, that the evidence on premeditation presented at his trial was insufficient, and that prosecutorial misconduct and cumulative error require reversal.

Morton was discharged from his employment at a grocery store. He decided to rob the store; he stole an unloaded gun from his mother…, loaded the gun with loose bullets…, and returned to the store with the excuse of returning his uniform.

Before entering the store, Morton parked across the street to check the number of cars in the parking lot and ensure that only the manager remained inside after hours. He hid the gun between his two work shirts. When he entered, store manager David Morrell asked about Morton’s box cutter and bailer key. Morton then left the store and sat in his car for approximately 2 minutes, pondering whether he should commit the crime. He then reentered the store and told Morrell he “was [t]here for the money.” Morrell offered no resistance and led Morton to the store office, where money was on a desk. According to Morton, he then squeezed the trigger of the gun. He said he was not sure where he was pointing the gun and fired to scare the manager. After pulling the trigger, however, he heard the manager hit the floor. Morton left the store [to the parking lot], … and then returned…. He stole a video recorder and videotape, destroyed security monitors, and took a cordless phone to ensure that Morrell could not call the police. According to Morton, when he returned to the office, he saw Morrell slumped on the floor. He admitted that Morrell looked dead. He did not check him for signs of life or summon help.

Other evidence at trial demonstrated Morrell had been shot in the face from a distance of not more than three feet.

After the crime, Morton went to play billiards with friends. He told his girlfriend that he robbed the store, purchased stereo equipment for his car and 2 pounds of marijuana, and took his girlfriend shopping. A few days later, Morton offered to pay a friend to destroy the security videotape and then fled the state. He eventually confessed to the crime, making a recorded statement to the police.

At trial, the jury received the following Instruction No. 9:

“In this case, the State has charged the defendant Joseph Dodds Morton with one offense of Murder in the First Degree and has introduced evidence on two alternative theories of proving the crime.

“The State may prove murder in the first degree by proving beyond a reasonable doubt that the defendant killed David Morrell intentionally and with premeditation or in the alternative by proving beyond a reasonable doubt that the defendant killed David Morrell and that such killing was done while in the commission of a felony or in flight from attempting to commit a felony, to-wit: aggravated robbery, as fully set out in these instructions.

“Here evidence is presented on the two alternate theories of proving the crime charged, you must consider both in arriving at your verdict.”

Instruction No. 10 stated, in part:

“If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.”

During closing argument, the prosecutor said:

“Was this killing premeditated? That’s the second question we want to look at. And to look at that question, we look at the jury instructions. And if you remember in the jury instructions, premeditation means to have thought it over beforehand for any length of time. Premeditation does not necessarily mean that somebody has to plan it out weeks or months beforehand. And if you remember—you look at that police statement. Detective Zeigler’s last question was, okay, did you plan this out last week or weeks before and he said no. But it doesn’t have to be weeks or months before.

“We know he walked off the job on Friday. We don’t know, though, if he started thinking about it Saturday or Sunday or Monday or Tuesday. But we do know that he started thinking about it before he got to the Save–A–Lot store. And remember one thing. Premeditation means to have thought over the matter beforehand for any length of time.”

The prosecutor then gestured with her fingers as though she was firing a gun and continued: “That can be premeditation under the laws of the State of Kansas. One squeeze of the trigger is all it takes.” The defense did not object.

The jury returned a guilty verdict, but its verdict form stated the jurors were “unable to agree whether the defendant is guilty of Murder in the First Degree on the theory of premeditated murder or felony murder.” The jury “unanimously [found] the defendant guilty of murder in the first degree on the combined theories of premeditated murder and felony murder.”

Conviction of First–Degree Murder on Combined Theories

Morton breaks this first issue in two, presenting it first as a violation of his right to a unanimous verdict and second as an error in instructions. Both challenges, when reduced to their essence, require us to decide a question of law, and our review is therefore unlimited.

… Morton points to language from State v. Vontress (1998) and State v. Wakefield (1999) [that emphasizes] “that as stated in the statute, premeditated murder and felony murder were separate and distinct offenses.” This language is confusing when considered in isolation. It is inconsistent with previous and succeeding Kansas case law, as well as the reasoning and outcome of the cases in which it appears. …[T]he statement was dicta, included in Vontress without any analysis of whether premeditated murder and felony murder actually constitute separate crimes.

Before Vontress and Wakefield were decided, this court had stated clearly: “Premeditated and felony murder are not separate, distinct offenses but are two separate theories under which the crime of first-degree murder may be committed.” In essence, the felonious conduct proved in a felony murder is a stand-in for the deliberation and premeditation usually required to be proved in a first-degree murder case.

In Vontress, the jury was presented with a verdict form similar to the one used in this case. During deliberations it marked the form to indicate that the first-degree murder conviction was based on the jury’s unanimous agreement on the defendant’s guilt of premeditated murder and its unanimous agreement on the defendant’s guilt of felony murder. The defendant received the harsher sentence available only for premeditated murder. The defendant appealed, arguing the verdict was ambiguous. We held that there was no ambiguity. The jury had found the defendant guilty under each theory of first-degree murder, and his sentence for premeditated murder was not illegal.

… Regardless of whether we consider jury unanimity a federal constitutional guarantee or a state statutory right, [our precedents] confirm that Morton got all that he was entitled to in this case. Although we know from the verdict form that Morton’s jury could not agree on premeditation or felony murder, it was unanimous as to his guilt of first-degree murder. That was enough as long as the evidence of each means was sufficient. Instruction and conviction on the combined theories was proper. Moreover, because Morton was not given the harsher sentence appropriate only for a unanimous conviction under a premeditation theory, his sentence also would pass muster.

Sufficiency of the Evidence of Premeditation

As discussed above, in order to uphold a conviction based on alternative means under State v. Timley, we must see sufficient evidence of each means in the record before us. Morton’s next argument is that the evidence of premeditation presented at his trial was insufficient.

“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.”

We have recognized several factors that will give rise to an inference of premeditation:

 “(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. The jury has a right to infer premeditation from the established circumstances if the inference is a reasonable one.” State v. Murillo (2000).

We see ample evidence to support the second and third factors in the record before us.

Morton admitted Morrell did nothing to provoke him. There was no resistance on the manager’s part.

In addition, Morton’s actions before entering and reentering the store and after the shooting reflected careful initial planning, reconsideration and a determination to proceed, and callous disregard of the consequences. Morton admitted deciding ahead of time to rob the store. He then went to no small trouble to steal the gun from his mother and prepared an excuse to use in the event he was questioned about his reappearance at the store after being discharged from employment. He then drove to the store and parked across the street, where he could carefully observe how many cars remained in its parking lot, guaranteeing that he would be alone with Morrell after business hours. After entering the store for the first time, he left and sat in his car awhile, thinking through his plan again and deciding to proceed. He then reentered the store and followed Morrell to the store office, where he took the money on the desk.

After intentionally squeezing the trigger, shooting Morrell in the face, and hearing Morrell hit the floor, Morton left the store a second time. He returned to his car, “took a turn around in the parking lot,” and apparently decided he had not done enough to cover his tracks. He entered the store a third time and observed the apparently lifeless Morrell on the floor. Morton did nothing to assist Morrell. Instead, he stole or destroyed the security camera and videotape and monitors that might have led to his apprehension by law enforcement. Morton then went out to socialize, playing billiards and purchasing marijuana. He later offered to pay a friend to destroy the security videotape and then left town.

With all of this evidence in the State’s favor, some of it from the defendant himself, members of the jury could have reasonably disregarded Morton’s story that he fired the gun only to scare Morrell and did not know where it was pointing. There was ample evidence to support premeditation.

Prosecutorial Misconduct in Closing Argument

When there is no contemporaneous objection to a prosecutor’s argument, we reverse only if the prosecutor’s misconduct rises to the level of violating a defendant’s right to a fair trial and denies the defendant his or her Fourteenth Amendment right to due process. Further, we generally employ a two-step process to analyze prosecutorial misconduct claims. First, we decide whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, we decide whether the comments constituted plain error; that is, whether the statements were so gross and flagrant that they could have prejudiced the jury against the defendant and denied him or her a fair trial. If so, reversal is required.

In this case, the prosecutor’s questionable conduct consisted of gesturing with her fingers as though she were firing a gun and stating: “That can be premeditation under the laws of the State of Kansas. One squeeze of a trigger is all it takes.” This was not a comment on the evidence but a purported statement of controlling law. Because a misstatement of controlling law denies a criminal defendant his or her right to due process, we agree with the defense that the alleged error must be reviewed on appeal despite the absence of an objection at trial.

In State v. Pabst (2002), this court held that premeditation was defined adequately in Pattern Instructions for Kansas (PIK) Crim.3d 56.04(b), as “to have thought over the matter beforehand.” In our view, premeditation “means something more than the instantaneous, intentional act of taking another’s life.”

In Pabst, the prosecutor had said:

“ ‘[T ]heres no amount of time required.


“ ‘You notice that there’s no time element in premeditation. There’s no interval that’s required. Theres no plan. You don’t have to think about it for weeks.


“ ‘You don’t have to think about it for weeks, days, hours, 50 minutes, ten minutes. It means to have thought over the matter beforehand. Its the conscious act of a person.’”

We held that this language did not constitute a misstatement of the law and thus did not qualify as prosecutorial misconduct.

However, we cautioned prosecutors to read State v. Holmes (2001), [in which] the prosecutor had said: “[P]remeditation can occur in an instant. That’s the law in the State of Kansas.” We held that this definition did constitute a deliberate misstatement, noting the prosecutor had been cautioned in the instructions conference before argument began. In Pabst, we amplified that holding by warning prosecutors to avoid the use of the word “instant” or any synonym or motion that would convey that message.

[In a later case,] we … found the prosecutor’s statement that “something can be premeditated as soon as it happens” to be a misstatement of the law. In that case, however, this court saw nothing in the record to indicate the misstatement was deliberate and held it to be harmless.

When the prosecutor in this case pantomimed the firing of a gun and made her accompanying comment that “[o]ne squeeze of a trigger is all it takes,” she conveyed the message that premeditation can be instantaneous, or virtually so. This definition of premeditation approximated those given by the prosecutors in Holmes… and we conclude that she misstated Kansas law. Although she also mentioned the correct definition from the jury’s instructions more than once, we do not regard this as a cure for her colorful misstatement of such a critical point—a definition of one of the crime’s essential elements.

The defense argues that we should also hold that the prosecutor’s conduct was deliberate rather than unintentional because she was a “seasoned veteran.” Morton contends that the prosecutor necessarily knew better and purposely ignored what she knew to bolster weak evidence of premeditation.

We can go along with defendant approximately halfway. Morton is correct that an experienced prosecutor such as the one in his case should have been well aware of … numerous recent cases on prosecutorial misconduct and/or the definition of premeditation. … This prosecutor should have known better and apparently did, given her references to the correct definition in the jury instructions. As our earlier discussion makes evident, however, we cannot agree with Morton that the State’s evidence of premeditation was weak. We do not discern any motivation for deliberate misconduct.

That being said, we are nevertheless compelled to hold here that the prosecutor’s misstatement regarding premeditation requires reversal. Although we see plenty of evidence of premeditation in Morton’s behavior, when judged under the correct definition, we know in this particular case that not every member of the jury was willing to convict on that basis. Because of the jury’s specific statement in its verdict form that it could not agree unanimously on the premeditation theory, we are not comfortable calling the prosecutor’s error harmless beyond a reasonable doubt. Morton is therefore entitled to reversal and a new trial.

Notes and questions on Morton

  1. Like many jurisdictions, Kansas separates homicides—unlawful killings—into several subcategories. And like many jurisdictions, Kansas distinguishes among different types of homicides by focusing on the defendant’s mental state. Joseph Morton, the defendant here, did not argue that he didn’t kill the store manager. Instead, the defense argued that the evidence was insufficient to establish the right mental state for first degree murder. In Kansas (again, like many other jurisdictions), first degree murder requires “premeditation.” How is that term defined in Kansas? What evidence here supports a finding of premeditation?
  2. Some of the evidence of premeditation submitted here relates to the defendant’s actions after the shooting. How do acts taken after a shooting help establish the defendant’s state of mind before the shooting?
  3. Sufficiency of evidence (or insufficiency) is one common basis for appeals in criminal law; jury instructions are another. In this case, the court focuses also on the prosecutor’s characterization of the law in her closing argument. Compare the prosecutor’s statements in Pabst and Holmes, both quoted in this case. The statement in Pabst was found to be permissible by an appellate court, but the statement in Holmes was found to be a (deliberate) misstatement. What is the key difference between the statements? Were the prosecutor’s statements at Morton’s trial more like one of these precedents than the other?
  4. Kansas law defines first degree murder to include intentional, premeditated killings and killings in the course of “any inherently dangerous felony.” There are thus two ways to commit first degree murder in Kansas—premeditated murder, or felony murder. Most U.S. jurisdictions have some form of “felony murder,” or a type of murder that involves causing a death while committing some other felony offense. Jurisdictions vary in whether they classify felony murder as first, second, or even third degree murder; they also vary with regard to which felony offenses can serve as the predicate for a felony murder conviction. Among commentators and courts, felony murder is controversial, in part because it typically requires no proof of mens rea other than the mens rea of the underlying felony. Thus, if a defendant commits a felony offense with a mental state of recklessness, but (accidentally and unintentionally) kills someone while committing that felony, the defendant may be guilty of murder.
  5. Morton was charged and convicted with aggravated robbery, a felony, along with murder. The prosecution argued both that Morton killed intentionally with premeditation and that Morton killed in the course of an inherently dangerous felony. The jury convicted Morton of first degree murder, but apparently was not unanimous about the underlying rationale for first degree murder—premeditated murder or felony murder. The appellate court found this “alternative means” conviction to be acceptable, so long as there was adequate evidence of each theory of murder. Is this approach consistent with the requirement of Winship that the factfinder must be convinced of each element of the offense beyond a reasonable doubt?

Murder v. Manslaughter

N.Y. Penal Law 125.25:
A person is guilty of murder in the second degree when:
1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:

(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

N.Y. Penal Law 125.20(2):
A person is guilty of manslaughter in the first degree when:
… 2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.

Gordon G. PATTERSON, Jr., Appellant,


State of NEW YORK

432 U.S. 197
Supreme Court of the United States

Decided June 17, 1977

Mr. Justice WHITE delivered the opinion of the Court.


…After a brief and unstable marriage, the appellant, Gordon Patterson, Jr., became estranged from his wife, Roberta. Roberta resumed an association with John Northrup, a neighbor to whom she had been engaged prior to her marriage to appellant. On December 27, 1970, Patterson borrowed a rifle from an acquaintance and went to the residence of his father-in-law. There, he observed his wife through a window in a state of semiundress in the presence of John Northrup. He entered the house and killed Northrup by shooting him twice in the head.

Patterson was charged with second-degree murder. In New York there are two elements of this crime: (1) “intent to cause the death of another person”; and (2) “caus(ing) the death of such person or of a third person.” N.Y. Penal Law s 125.25. Malice aforethought is not an element of the crime. In addition, the State permits a person accused of murder to raise an affirmative defense that he “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.”

New York also recognizes the crime of manslaughter. A person is guilty of manslaughter if he intentionally kills another person “under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance.” Appellant confessed before trial to killing Northrup, but at trial he raised the defense of extreme emotional disturbance. … The jury found appellant guilty of murder. …


It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally “within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,” and its decision in this regard is not subject to proscription under the Due Process Clause unless “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

In determining whether New York’s allocation to the defendant of proving the mitigating circumstances of severe emotional disturbance is consistent with due process, it is therefore relevant to note that this defense is a considerably expanded version of the common-law defense of heat of passion on sudden provocation and that at common law the burden of proving the latter, as well as other affirmative defenses indeed, “all . . . circumstances of justification, excuse or alleviation” rested on the defendant….


… [I]n revising its criminal code, New York provided the affirmative defense of extreme emotional disturbance, a substantially expanded version of the older heat-of-passion concept; but it was willing to do so only if the facts making out the defense were established by the defendant with sufficient certainty. The State was itself unwilling to undertake to establish the absence of those facts beyond a reasonable doubt, perhaps fearing that proof would be too difficult and that too many persons deserving treatment as murderers would escape that punishment if the evidence need merely raise a reasonable doubt about the defendant’s emotional state. It has been said that the new criminal code of New York contains some 25 affirmative defenses which exculpate or mitigate but which must be established by the defendant to be operative. The Due Process Clause, as we see it, does not put New York to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment.

The requirement of proof beyond a reasonable doubt in a criminal case is “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship (Harlan, J., concurring). The social cost of placing the burden on the prosecution to prove guilt beyond a reasonable doubt is thus an increased risk that the guilty will go free. While it is clear that our society has willingly chosen to bear a substantial burden in order to protect the innocent, it is equally clear that the risk it must bear is not without limits; and Mr. Justice Harlan’s aphorism provides little guidance for determining what those limits are. Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. Punishment of those found guilty by a jury, for example, is not forbidden merely because there is a remote possibility in some instances that an innocent person might go to jail.

It is said that the common-law rule permits a State to punish one as a murderer when it is as likely as not that he acted in the heat of passion or under severe emotional distress and when, if he did, he is guilty only of manslaughter. But this has always been the case in those jurisdictions adhering to the traditional rule. It is also very likely true that fewer convictions of murder would occur if New York were required to negative the affirmative defense at issue here. But in each instance of a murder conviction under the present law New York will have proved beyond a reasonable doubt that the defendant has intentionally killed another person, an act which it is not disputed the State may constitutionally criminalize and punish. If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonably certainty…. We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.

This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard. “(I)t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.” …


It is urged that Mullaney v. Wilbur necessarily invalidates Patterson’s conviction. In Mullaney the charge was murder, which the Maine statute defined as the unlawful killing of a human being “with malice aforethought, either express or implied.” The trial court instructed the jury that the words “malice aforethought” were most important because “malice aforethought is an essential and indispensable element of the crime of murder.” Malice, as the statute indicated and as the court instructed, could be implied and was to be implied from “any deliberate, cruel act committed by one person against another suddenly . . . or without a considerable provocation,” in which event an intentional killing was murder unless by a preponderance of the evidence it was shown that the act was committed “in the heat of passion, on sudden provocation.” The instructions emphasized that “malice aforethought and heat of passion on sudden provocation are two inconsistent things; thus, by proving the latter the defendant would negate the former.”

Wilbur’s conviction, which followed, was affirmed. The Maine Supreme Judicial Court held that murder and manslaughter were varying degrees of the crime of felonious homicide and that the presumption of malice arising from the unlawful killing was a mere policy presumption operating to cast on the defendant the burden of proving provocation if he was to be found guilty of manslaughter rather than murder — a burden which the Maine law had allocated to him at least since the mid-1800’s.

The Court of Appeals [held] that the presumption unconstitutionally shifted to the defendant the burden of proof with respect to an essential element of the crime…. This Court, accepting the Maine court’s interpretation of the Maine law, unanimously agreed with the Court of Appeals that Wilbur’s due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation.

Mullaney’s holding, it is argued, is that the State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt. In our view, the Mullaney holding should not be so broadly read….

The Maine Supreme Judicial Court made it clear that malice aforethought, which was mentioned in the statutory definition of the crime, was not equivalent to premeditation and that the presumption of malice traditionally arising in intentional homicide cases carried no factual meaning insofar as premeditation was concerned. Even so, a killing became murder in Maine when it resulted from a deliberate, cruel act committed by one person against another, “suddenly without any, or without a considerable provocation.” Premeditation was not within the definition of murder; but malice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i.e., lack of provocation, was presumed and could be rebutted by the defendant only by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mullaney we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in Winship.

As we have explained, nothing was presumed or implied against Patterson; and his conviction is not invalid under any of our prior cases. The judgment of the New York Court of Appeals is


Mr. Justice POWELL, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

In the name of preserving legislative flexibility, the Court today drains In re Winship (1970) of much of its vitality. Legislatures do require broad discretion in the drafting of criminal laws, but the Court surrenders to the legislative branch a significant part of its responsibility to protect the presumption of innocence. …

New York’s present homicide laws had their genesis in lingering dissatisfaction with certain aspects of the common-law framework that this Court confronted in Mullaney. Critics charged that the archaic language tended to obscure the factors of real importance in the jury’s decision. Also, only a limited range of aggravations would lead to mitigation under the common-law formula, usually only those resulting from direct provocation by the victim himself. It was thought that actors whose emotions were stirred by other forms of outrageous conduct, even conduct by someone other than the ultimate victim, also should be punished as manslaughterers rather than murderers. Moreover, the common-law formula was generally applied with rather strict objectivity. Only provocations that might cause the hypothetical reasonable man to lose control could be considered. And even provocations of that sort were inadequate to reduce the crime to manslaughter if enough time had passed for the reasonable man’s passions to cool, regardless of whether the actor’s own thermometer had registered any decline….

The American Law Institute took the lead in moving to remedy these difficulties. As part of its commendable undertaking to prepare a Model Penal Code, it endeavored to bring modern insights to bear on the law of homicide. The result was a proposal to replace “heat of passion” with the moderately broader concept of “extreme mental or emotional disturbance.” The proposal first appeared in a tentative draft published in 1959, and it was accepted by the Institute and included [in] the 1962 Proposed Official Draft.

At about this time the New York Legislature undertook the preparation of a new criminal code, and the Revised Penal Law of 1967 was the ultimate result. The new code adopted virtually word for word the ALI formula for distinguishing murder from manslaughter. Under current New York law, those who kill intentionally are guilty of murder. But there is an affirmative defense left open to a defendant: If his act was committed “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse,” the crime is reduced to manslaughter. The supposed defects of a formulation like Maine’s have been removed. Some of the rigid objectivity of the common law is relieved, since reasonableness is to be determined “from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” The New York law also permits mitigation when emotional disturbance results from situations other than direct provocation by the victim. And the last traces of confusing archaic language have been removed. There is no mention of malice aforethought, no attempt to give a name to the state of mind that exists when extreme emotional disturbance is not present. The statute is framed in lean prose modeled after the ALI approach, giving operative descriptions of the crucial factors rather than attempting to attach the classical labels.

Despite these changes, the major factor that distinguishes murder from manslaughter in New York “extreme emotional disturbance” is undeniably the modern equivalent of “heat of passion.” The ALI drafters made this abundantly clear. They were not rejecting the notion that some of those who kill in an emotional outburst deserve lesser punishment; they were merely refining the concept to relieve some of the problems with the classical formulation. The New York drafters left no doubt about their reliance on the ALI work….

But in one important respect the New York drafters chose to parallel Maine’s practice precisely, departing markedly from the ALI recommendation. Under the Model Penal Code the prosecution must prove the absence of emotional disturbance beyond a reasonable doubt once the issue is properly raised. In New York, however, extreme emotional disturbance constitutes an affirmative defense rather than a simple defense. Consequently the defendant bears not only the burden of production on this issue; he has the burden of persuasion as well.

Mullaney held invalid Maine’s requirement that the defendant prove heat of passion. The Court today, without disavowing the unanimous holding of Mullaney, approves New York’s requirement that the defendant prove extreme emotional disturbance. The Court manages to run a constitutional boundary line through the barely visible space that separates Maine’s law from New York’s. It does so on the basis of distinctions in language that are formalistic rather than substantive.

This result is achieved by a narrowly literal parsing of the holding in Winship: “(T)he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” The only “facts” necessary to constitute a crime are said to be those that appear on the face of the statute as a part of the definition of the crime….

The test the Court today establishes allows a legislature to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. The sole requirement is that any references to the factor be confined to those sections that provide for an affirmative defense….

With all respect, this type of constitutional adjudication is indefensibly formalistic. A limited but significant check on possible abuses in the criminal law now becomes an exercise in arid formalities. What Winship and Mullaney had sought to teach about the limits a free society places on its procedures to safeguard the liberty of its citizens becomes a rather simplistic lesson in statutory draftsmanship. Nothing in the Court’s opinion prevents a legislature from applying this new learning to many of the classical elements of the crimes it punishes.

For example, a state statute could pass muster under the only solid standard that appears in the Court’s opinion if it defined murder as mere physical contact between the defendant and the victim leading to the victim’s death, but then set up an affirmative defense leaving it to the defendant to prove that he acted without culpable mens rea. The State, in other words, could be relieved altogether of responsibility for proving anything regarding the defendant’s state of mind, provided only that the fact of the statute meets the Court’s drafting formulas.

To be sure, it is unlikely that legislatures will rewrite their criminal laws in this extreme form. The Court seems to think this likelihood of restraint is an added reason for limiting review largely to formalistic examination. But it is completely foreign to this Court’s responsibility for constitutional adjudication to limit the scope of judicial review because of the expectation however reasonable that legislative bodies will exercise appropriate restraint.

It would be preferable, if the Court has found reason to reject the rationale of Winship and Mullaney, simply and straightforwardly to overrule those precedents….

Notes and questions on Patterson

  1. Patterson is a very difficult case. It requires you to think carefully about definitions of crimes, affirmative defenses, and allocations of burdens of proof. Murder in New York was defined as intentionally causing the death of another person, but the New York statute also included an affirmative defense. An affirmative defense can provide relief from criminal liability not because the prosecution didn’t prove the elements of the statutory offense, but on the basis of some other consideration that has been recognized as a reason not to convict and punish the defendant. Self-defense and insanity are two examples of affirmative defenses. To begin to understand how affirmative defenses work, imagine a statute that defines murder as “the intentional killing of another human being.” Now imagine a person who is threatened by an armed assailant and who shoots and kills that assailant. This person might raise a claim of self-defense rather than contest the elements of the murder statute. That is, our imaginary defendant does not deny that she intentionally killed her assailant. Rather, her affirmative defense is that, while she did intentionally kill the assailant, she did so to protect her own life from an unlawful deadly threat. You’ll study affirmative defenses in much more detail in Chapter Ten. For now, the notes below will give you helpful background on the particular affirmative defense of “provocation” that gives rise to the arguments in Patterson.
  2. At common law, provocation doctrine arose as a way of distinguishing among different types of intentional killings. To common law courts, some intentional killings seemed worse than others.  Premeditated, planned, cold-blooded killings seemed worse than inflamed, impulsive killings “in the heat of passion.”  The person who killed in the heat of passion still killed intentionally, but, the courts decided, this person might not kill with malice. Courts held that a killing was manslaughter, not murder, if it was in response to provocation. In this regard, provocation was a partial defense rather than a complete one: a successful claim of provocation didn’t relieve the defendant of all criminal liability, but merely reduced the severity of the charges. To show provocation and reduce a murder charge to manslaughter, a defendant had to show 1) adequate provocation (something that would cause a reasonable man to become sufficiently inflamed to kill); 2) that the provocation caused the defendant to kill the victim; and 3) no cooling-off period: the killing must have followed the provocation closely enough in time that a reasonable man would not have cooled off” or regained his composure and self-control. Courts often took a categorical approach to provocation, meaning that they recognized certain types of acts as “adequate” provocation, but excluded all other acts. Standard categories of adequate provocation included a physical attack, a threat of death or great bodily injury to the defendant or to a third party close to the defendant, such as a child; discovery of infidelity; and illegal arrest.
  3. The drafters of the Model Penal Code decided to include in their proposed homicide statute a defense similar to common law provocation, but broader. The Model Penal Code provides

    (1) Criminal homicide constitutes manslaughter when:

    (a) it is committed recklessly; or

    (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.

    Model Penal Code § 210.3.


  4. Now consider the New York homicide statute applied in Patterson. The New York legislature used the MPC language not in its manslaughter statute, but in its murder statute, and it explicitly characterized the consideration of extreme mental or emotional disturbance as an affirmative defense. What difference does that make, according to the Supreme Court?
  5. In the dissenting opinion, Justice Powell suggests that the majority’s approach allows states to circumvent the requirements of Winship that the prosecution prove all elements of an offense beyond a reasonable doubt. He suggests that under the Court’s approach, a state would be permitted to define murder as “mere physical contact between the defendant and victim leading to the victim’s death.” All mental state considerations, including whether the defendant intended to kill or acted recklessly with regard to death, could be characterized as affirmative defenses. Thus the prosecution would have no burden to prove mens rea for the crime of murder. Do you agree that the majority approach leaves open this possibility? After Patterson, does Winship remain a meaningful constraint on enforcement and adjudication decisions?

Check Your Understanding (6-2)

Recklessness and Homicide

Kentucky Rev. Stat. 507.040: Manslaughter in the second degree

(1) A person is guilty of manslaughter in the second degree when he wantonly causes the death of another person, including but not limited to situations where the death results from the person’s:

(a) Operation of a motor vehicle;

(b) Leaving a child under the age of eight (8) years in a motor vehicle under circumstances which manifest an extreme indifference to human life and which create a grave risk of death to the child, thereby causing the death of the child; or

(c) Unlawful distribution for remuneration of a Schedule I or II controlled substance when the controlled substance is the proximate cause of death.

Shawnta ROBERTSON, Appellant,


COMMONWEALTH of Kentucky, Appellee

Supreme Court of Kentucky
82 S.W.3d 832

Aug. 22, 2002

COOPER, Justice.

Michael Partin, a police officer employed by the city of Covington, Kentucky, was killed when he fell through an opening between the roadway and the walkway of the Clay Wade Bailey Bridge and into the Ohio River while in foot pursuit of Appellant Shawnta Robertson. Following a trial by jury in the Kenton Circuit Court, Appellant was convicted of manslaughter in the second degree for wantonly causing Partin’s death, KRS 507.040(1), and was sentenced to imprisonment for six years. The Court of Appeals affirmed, and we granted discretionary review…

At about 2:00 a.m. on January 4, 1998, Officer Brian Kane of the Kenton County Police Department attempted to arrest Appellant in Covington for possession of marijuana. Appellant broke free of Kane’s grasp and began running north on Fourth Street toward the Clay Wade Bailey Bridge which spans the Ohio River between Covington and Cincinnati, Ohio. Kane radioed for assistance and pursued Appellant on foot “at a sprint.” When Appellant reached the bridge, he vaulted over the concrete barrier between the roadway and the walkway and began running north on the walkway toward Cincinnati. Kane, who, at that point, was running on top of the concrete barrier jumped down to the walkway and continued his pursuit.

Meanwhile, Partin and two other Covington police officers, Steve Sweeney and Cody Stanley, responded to Kane’s request for assistance and arrived at the bridge almost simultaneously in three separate vehicles…. Partin’s vehicle was the first of the three police cruisers to reach the bridge. He stopped in the right northbound lane just beyond where Appellant was running on the walkway. Stanley stopped his vehicle directly behind Partin’s vehicle, and Sweeney stopped in the left northbound lane, also behind Partin’s vehicle. Sweeney and Stanley testified that they did not see either Appellant or Kane on the walkway and stopped only because Partin had done so. Both saw Partin exit his vehicle, proceed to the concrete barrier, place his left hand on the barrier, then vault over the barrier “as if he had done it a million times before,” and disappear. The concrete barrier was thirty-two inches high. The railing of the walkway was forty-three inches high. There was a forty-one-inch-wide open space between the concrete barrier and the walkway railing. Partin fell through the open space into the river ninety-four feet below. His body was recovered four months later.

[When Partin’s vehicle had arrived on the bridge, Appellant had reversed course and ran toward Kane, who ordered him to “get down.” Appellant complied and was placed under arrest for marijuana possession. After Partin’s body was recovered, appellant was charged with manslaughter.]

No one will ever know why Partin fell through the opening between the concrete barrier and the pedestrian walkway. Perhaps, he did not realize the opening was there. Perhaps, he knew it was there and miscalculated his vault. Either way, however, his death resulted from his own volitional act and not from any force employed against him by Appellant. Whether Appellant’s act of resisting arrest by unlawful flight from apprehension was a legal cause of Partin’s death requires application of the provisions of KRS 501.020(3) (definition of “wantonly”), KRS 501.020(4) (definition of “recklessly”), and KRS 501.060 (“causal relationships”).

KRS 501.020(3) defines “wantonly” as follows:

A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation…. (Emphasis added.)

KRS 501.020(4) defines “recklessly” as follows:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. (Emphasis added.)

Thus, wantonness is the awareness of and conscious disregard of a risk that a reasonable person in the same situation would not have disregarded, and recklessness is the failure to perceive a risk that a reasonable person in the same situation would have perceived.

KRS 501.060 provides in pertinent part:

(1) Conduct is the cause of a result when it is an antecedent without which the result in question would not have occurred.

(3) When wantonly or recklessly causing a particular result is an element of the offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of recklessness, of which he should be aware unless:

(a) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or

(b) The actual result involves the same kind of injury or harm as the probable result and occurs in a manner which the actor knows or should know is rendered substantially more probable by his conduct.

(4) The question of whether an actor knew or should have known the result he caused was rendered substantially more probable by his conduct is an issue of fact.

(Emphasis added.)

Obviously, Appellant’s unlawful act of resisting arrest by fleeing from apprehension was a “but for” cause of Partin’s fatal attempt to pursue him by vaulting from the roadway of the bridge to the walkway. As noted by the 1974 Commentary to KRS 501.060, the issue then becomes primarily one of mens rea.

Once an act is found to be a cause in fact of a result and a substantial factor in bringing about that result, it is recognized as the proximate cause unless another cause, independent of the first, intervenes between the first and the result. And even then the first cause is treated as the proximate cause if the harm or injury resulting from the second is deemed to have been reasonably foreseeable by the first actor.

Thus, the fact that Partin vaulted over the concrete barrier of his own volition does not exonerate Appellant if Partin’s act was either foreseen or foreseeable by Appellant as a reasonably probable result of his own unlawful act of resisting arrest by fleeing from apprehension. …[I]t is immaterial that it was Partin, as opposed to Kane or one of the other police officers, who fell from the bridge if such was a reasonably foreseeable consequence of the pursuit.

In Phillips v. Commonwealth (2000), we [upheld] the wanton murder conviction of a defendant who fired shots at an intended victim from inside a vehicle and thereby induced the intended victim to return fire and kill a passenger in the defendant’s vehicle. We held that it was reasonably foreseeable that, if shots were fired at another person from inside a vehicle, the other person would return fire in the direction of the vehicle, thus endangering the lives of its other occupants. Also illustrative is the pre-code case of Sanders v. Commonwealth (1932), which upheld the manslaughter conviction of a defendant who had threatened his wife with a deadly weapon while they were in a moving vehicle, causing her to jump from the vehicle to her death—clearly a volitional act by the victim but a probable and reasonably foreseeable consequence of the unlawful act of the defendant.

In both Phillips and Sanders, a defendant applied unlawful force against another whose volitional response to that force caused the victim’s death. The case sub judice is conceptually more similar to Lofthouse v. Commonwealth (2000), which reversed the reckless homicide conviction of a defendant who applied no force against the victim but supplied cocaine and heroin to the victim whose self-ingestion of those drugs caused his death. The result reached by the plurality opinion in Lofthouse did not turn on the fact that the victim died as a result of his own volitional act. Rather, in reversing the conviction, the opinion emphasized the absence of any evidence that the defendant knew or should have known that ingestion of those drugs under those circumstances would probably cause the victim’s death. Here, as in Lofthouse, Appellant’s mens rea, i.e., what he knew or should have known with respect to the probable consequences of his conduct, is crucial to determining the issue of his criminal liability.

Analogous to this set of facts is the case where a person pursued by the police in a high speed motor vehicle chase is held criminally liable for the death of an innocent bystander accidentally struck by a pursuing police vehicle. In People v. Schmies (Cal. 1996), the California Court of Appeal directly addressed the effect of the police officers’ conduct vis-a-vis the criminal liability of the defendant.

[T]he negligence or other fault of the officers is not a defense to the charge against defendant. The fact that the officers may have shared responsibility or fault for the accident does nothing to exonerate defendant for his role. In short, whether the officers’ conduct could be described with such labels as negligent, careless, tortious, cause for discipline, or even criminal, in an action against them, is not at issue with respect to the defendant here. In this sense the “reasonableness” of the officers’ conduct, focused upon their point of view and their blameworthiness for the death, is not relevant.

The issue with respect to defendant focuses upon his point of view, that is, whether the harm that occurred was a reasonably foreseeable consequence of his conduct at the time he acted. Since the officers’ conduct was a direct and specific response to defendant’s conduct, the claim that their conduct was a superseding cause of the accident can be supported only through a showing that their conduct was so unusual, abnormal, or extraordinary that it could not have been foreseen.

Schmies (emphasis added). Although California does not have a statutory equivalent of KRS 501.060, this common law analysis of causation is consistent with the principles embodied in our statute. Did the defendant commit an illegal act that induced the officer’s response? If so, was that response reasonably foreseeable by the defendant at the time that he acted? The fault or negligence of the officer is not determinative of the defendant’s guilt. However, the reasonableness of the officer’s response is relevant in determining whether the response was foreseeable by the defendant. The more reasonable the response, the more likely that the defendant should have foreseen it. It is immaterial that the ultimate victim was the officer, himself, as opposed to an innocent bystander.

Here, the conduct that supports Appellant’s conviction is not, as the Commonwealth suggests, his own act of vaulting over the concrete barrier. Partin was not present when that act occurred; thus, it was not reasonably foreseeable that he would have vaulted over the barrier in reliance on the fact that Appellant had done so without incident. (That analysis might have been appropriate if Officer Kane had fallen from the bridge when he followed Appellant onto the walkway.) The conduct that supports Appellant’s conviction is the continuation of his unlawful flight when he obviously knew that Partin intended to pursue him (as evidenced by the fact that when he saw Partin’s vehicle stop, he reversed course and began running in the opposite direction), and that, to do so, Partin would be required to cross the open space between the roadway and the walkway and thereby risk falling to his death. “The question of whether [Appellant] knew or should have known [that Partin’s death] was rendered substantially more probable by his conduct is an issue of fact.” KRS 501.060(4). There was sufficient evidence in this case to present that fact to a jury….

GRAVES, Justice, concurring.

… I write separately concerning Appellant’s culpability.

Whether the act of running from an officer when one has been detained, standing alone if it results in the officer’s death, would support a second-degree manslaughter conviction is a question we leave until another day. The act of vaulting the gap between the roadway and the sidewalk is sufficiently wanton to support the jury’s verdict in this case. Appellant was aware of the danger of the gap and consciously disregarded it when he jumped. Knowing he was being pursued by at least one officer on foot, Appellant had to assume any pursuing officer would attempt to follow him, also becoming susceptible to the risk. A gap of nearly 4 feet across a drop of 94 feet into moving water cannot be described as anything but a substantial unjustifiable risk. It is certainly logical for the jury to conclude that, when Appellant disregarded this risk to which he was subjecting those lawfully pursuing him, he grossly deviated from the standard of conduct that a reasonable person would observe.

[Dissenting opinion of Justice KELLER omitted.]

Notes and questions on Robertson

  1. Although Kentucky’s terminology is somewhat unconventional, this case can help you learn the general distinction between recklessness and negligence in criminal law. It may be helpful to start with the Model Penal Code’s definitions of those terms, since the MPC is more representative on this particular issue. Here are the MPC definitions.
    (c) Recklessly.
    A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
    (d) Negligently.A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

    MPC § 2.02 (c)-(d).

    Notice that recklessness, as defined in the Model Penal Code, requires awareness of risk: the defendant must “consciously disregard” a risk. Negligence does not require actual knowledge of risk. Instead, a negligent defendant should be aware of the risk, but instead fails to perceive it.

  2. Now compare the Model Penal Code definitions with Kentucky’s definitions of the terms “wantonly” and “recklessly,” discussed within the Robertson opinion. To act “wantonly” in Kentucky is approximately equivalent to acting “recklessly” under the MPC: a conscious disregard of a (known) substantial and unjustifiable risk. And to act “recklessly” in Kentucky is approximately equivalent to acting “negligently” under the MPC: a failure to perceive a substantial and unjustifiable risk. The variations in criminal law terminology by jurisdiction can be confusing, but it helps to let go of the expectation of consistency! It’s always wise to check your own jurisdiction’s definitions of key terms. It’s also helpful to be aware of usual practice. The Model Penal Code’s definition of recklessness as conscious disregard of a substantial and unjustifiable risk is fairly common, and Kentucky’s approach is unusual.
  3. Shawnta Robertson’s appeal does not focus directly on evidence of his mental state, but rather on the issue of causation. Like many jurisdictions, though, Kentucky links causation to mental states. KRS 501.060, quoted within the court’s opinion, sets forth causation requirements of Kentucky law for crimes with a mens rea of either “wantonly” or “recklessly.” Try to articulate clearly the defendant’s argument about causation here, and the prosecution’s response. Which argument seems more compelling to you?
  4. Beyond the law, we sometimes think of cause-and-effect relationships as scientific or empirical questions: does smoking cause lung cancer? Does human behavior cause global warming? It is important to see that in criminal law, causation analysis often involves normative judgments about whether a defendant should be held responsible for an effect that is in some way linked to the defendant’s actions. A dissenting opinion in Robertson, not included above, emphasized this moral dimension to causation analysis. But-for causation can be interpreted very broadly, the dissent noted; a person who chooses to bear a child is a but-for cause of that child’s later death, since but-for the birth the death could not have occurred. “Legal cause” or “proximate cause” is a device to narrow legal liability based on judgments of a particular actor’s culpability or blameworthiness. As the dissent explained,

    KRS 501.060 represents a legislative policy determination that “[w]hen the requirement of ‘proximate causation’ dissociates the actor’s conduct from a result of which it is a but-for cause, … the actor’s culpability with respect to the result … is such that it would be unjust to permit the result to influence his liability or the gravity of his offense.” In other words, “legal causation,” … now conceptualized by KRS 501.060 as an issue of mens rea or culpability, nevertheless operates to exclude criminal liability in cases where the defendant would otherwise have committed an offense, but “common sense notions of responsibility for the occurrence of results” dictate that the imposition of criminal liability is inappropriate.

    Robertson, 82 S.W.3d 832 at 844 (Keller, J., dissenting).

  5. Suppose that while police officers were chasing Robertson, Robertson (rather than one of the officers) had fallen off the bridge and drowned. Would the officers then be liable for manslaughter of Robertson? It’s unlikely. Doctrines of “law enforcement justification” empower police officers to engage in many actions that would otherwise violate criminal statutes. “State and federal law generally prohibit assault, battery, use of deadly force, … damage to property, weapons possession, and so forth; all of these prohibitions contain exceptions for police officers on terms not applicable to ordinary citizens.” Stokes v. City of Chicago, 744 F. Supp. 183, 188 n. 4 (N.D. Ill. 1990). Although law enforcement justifications set ostensible limits to police use of force and other conduct that would otherwise violate criminal laws, the question whether police have exceeded those limits is often controversial. As you are no doubt aware, many police killings of unarmed suspects are not prosecuted, even when some observers find the use of deadly force to be unwarranted. For additional discussion of these cases, see the section entitled “When Killing Isn’t Criminal” later in this chapter. For now, notice that an inquiry into the justifiability of risky conduct is built into Kentucky’s definition of “wantonly.” To act wantonly is to disregard “a substantial and unjustifiable risk.” Even if Robertson had fallen and drowned, a prosecutor deciding whether criminal charges are appropriate might conclude that the risks that police took in chasing this suspect were justifiable ones.
  6. Across the Kansas, New York, and Kentucky homicide statutes you’ve seen so far, there are offenses of first degree murder, second degree murder, first degree manslaughter, and second degree manslaughter. States that retain the death penalty often have a separate offense of “capital murder.” Pennsylvania and Florida also each define a crime of third degree murder, and many states define still other homicide offenses, such as vehicular homicide or criminally negligent homicide. None of these terms has a universal definition that applies across all jurisdictions; each state decides how to divide homicide into more narrowly defined offenses. But it is useful to notice that each state does divide criminal homicides into categories, with “murder” typically being a more severe offense that carries more severe penalties than “manslaughter,” and with a “first degree” offense typically carrying more severe penalty than a second degree (or third degree) one. What are the reasons that a state might want to divide homicide into multiple, more narrowly defined offenses? What aspects of a killing should be used to distinguish more severe offense from less severe ones, in your view?
  7. As noted earlier in this chapter, the actus reus of most homicide offenses is the same – causing the death of a human being. The different types of homicide listed in the previous note are usually distinguished by mens rea standards. A defendant’s state of mind can be difficult to ascertain or “prove,” as we have seen; mental state elements are frequently established by arguments from circumstantial evidence. When deciding which homicide offense to charge, prosecutors could seek a conviction for the most severe offense that they think the evidence warrants, or they could propose a plea to a lesser homicide offense. It’s important to see that prosecutors have choices; the proliferation of different types of homicide is another source of prosecutorial discretion. And as you have seen in other contexts, the exercise of discretion often produces patterns of racial disparities. For example, in both capital murder cases and non-capital homicide cases, empirical researchers have found that black defendants who kill white victims are likely to be charged with a more severe homicide offense than other defendant-victim racial combinations. See, e.g., Yoav Sapir, Neither Intent Nor Impact: A Critique of the Racially Based Selective Prosecution Jurisprudence and a Reform Proposal, 19 Harv. BlackLetter L.J. 130-131 (2003).


Check Your Understanding (6-3)

Negligence and Homicide

Massachusetts G.L. c. 90, 24G(b):

Whoever, upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of .08 or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances…, or whoever operates a motor vehicle negligently so that the lives or safety of the public might be endangered and by any such operation causes the death of another person, shall be guilty of homicide by a motor vehicle and shall be punished by imprisonment in a jail or house of correction for not less than 30 days nor more than 2 ½ years, or by a fine of not less than $300 nor more than $3,000 dollars, or both.

Mass. G.L. c. 265, 13:

Whoever commits manslaughter shall, except as hereinafter provided, be punished by imprisonment in the state prison for not more than twenty years or by a fine of not more than one thousand dollars and imprisonment in jail or a house of correction for not more than two and one half years.




Supreme Judicial Court of Massachusetts, Worcester
849 N.E.2d 790

Decided June 21, 2006

Opinion by GREANEY, J.

We transferred this case here on our own motion to consider the scope of criminal liability for the negligent operation of a motor vehicle that results, in the circumstances described below, in death. A jury … convicted the defendant on a complaint charging motor vehicle homicide by negligent operation. The evidence at trial demonstrated that Carol Suprenant (victim) was hospitalized with chest and lung injuries suffered as a result of an accident caused by the defendant’s negligent operation of an automobile and died of respiratory failure four days later after her doctors, at her request, removed her from a ventilator that allowed her to breathe and might have ensured her survival. The defendant appeals from her conviction, challenging (as she did at trial) the sufficiency of the evidence proving causation and claiming (for the first time on appeal) that the trial judge’s instructions to the jury on the concept of superseding causes were inadequate. We affirm the conviction.

The jury could have found the following facts. On July 4, 2002, the victim and her husband, Robert Suprenant, left their home in Spencer to attend a cookout… At about noon, the Suprenants were traveling south on Mechanic Street and had just entered the intersection of Mechanic and Chestnut Streets, when their automobile was struck on the passenger side by an automobile traveling east on Chestnut Street operated by the defendant. The force of impact pushed the Suprenant’s automobile a distance of approximately fifteen to twenty feet, across the road, over a sidewalk, and into a chain link fence. Traffic entering the intersection from the defendant’s direction was controlled by both a stop sign and blinking red light. A jury could infer that the defendant had failed to stop (or yield the right of way) at the intersection and, thus, was negligent. The victim was transferred from the accident scene by emergency medical personnel to [a hospital].

As a result of the accident, the victim suffered multiple chest wall fractures, including fractures of the ribs and sternum and a lung contusion. The victim had suffered for several years prior to the accident from chronic obstructive pulmonary disease (COPD), a condition which makes it difficult to breathe and, thus, to supply oxygen to the bloodstream, and had required the use of an oxygen tank in her home to assist in her breathing.[1] The trauma to her chest compromised her ability to breathe as she had before the accident, to the point where she could no longer oxygenate her blood by normal breathing. That night in the intensive care unit, the victim was intubated and placed on a ventilator. The next morning, the doctors removed the victim from the ventilator, and she was transferred from the intensive care unit to a medical floor in the hospital.

Over the next few days, the victim’s breathing difficulties increased. Three doctors separately advised the victim of the need to reintubate her and place her again on a ventilator in order to assist her breathing. At first the victim, who had in the past repeatedly told her daughter-in-law (and health proxy) that she never wanted to be kept alive by a ventilator, refused permission for the doctors to do so. After speaking with family members and her doctors, however, the victim acquiesced and allowed herself to be reintubated, at least temporarily, in order to determine if her health would improve.

The next morning the victim’s kidneys began to fail, and doctors advised the victim that her worsening condition would require dialysis. At this point, the victim stated that she no longer wished to be attached to a ventilator. Two doctors on the medical staff of the hospital met separately with the victim to discuss the nature of the circumstances facing her and the probable consequences of forgoing mechanical ventilation. The victim’s personal physician also spoke with her at great length about her decision and encouraged her to remain on the breathing tube and ventilator to allow her situation time to improve. The victim understood (a jury could infer) that her death was probable if she did not allow intubation and that, conversely, her injuries were potentially survivable if she remained on the ventilator. The victim was adamant that she did not want to be intubated. On July 8, she was taken off the ventilator and the intubation tube was removed. She died a few hours later from respiratory failure.

At trial one doctor testified that, if the accident had not happened, the victim probably would not have needed a ventilator and could have continued being on home oxygen in her usual fragile state of health, but that the chest injuries suffered in the accident “tipped the scales against her.” He also opined that the victim’s decision not to be intubated “likely played a role in her death.” Another doctor stated his opinion “to a reasonable degree of medical certainty” that the victim would have survived her injuries if she had agreed to mechanical ventilatory support, and might even have returned to the state she was in before the accident, but conceded as well that the victim might have required “chronic and continuous ventilatory support.” The victim’s daughter-in-law assessed the situation as follows: “We all knew that it was a possibility that she might not make it, but [the doctors] couldn’t give us a guarantee that she would make it without … hav[ing] to be on a [ventilator] for the rest of her life, and she didn’t want to live like that, and we couldn’t force her to do that.” The victim’s primary care physician testified, “I do think her mind was made up.”

The judge denied the defendant’s motions for the entry of a required finding of not guilty presented at the close of the Commonwealth’s case and at the close of all the evidence. The defendant argues that the Commonwealth’s proof was insufficient to sustain the conviction because no rational jury could have determined, beyond a reasonable doubt, that the victim’s death from respiratory failure was proximately caused by the defendant’s negligence.[2] The defendant asserts that the victim’s death was a direct result of her independent decision not to undertake medical procedures that could be considered appropriate for a person in her condition and that would, in all probability, have allowed her to survive the accident. The defendant concedes that the victim had the right to make an informed decision to forgo life support, but argues that the victim’s choice broke the chain of causation and relieved the defendant of criminal responsibility for the victim’s death. We disagree.

… The standard of causation under G.L. c. 90, § 24G, is the same as that employed in tort law. …Conduct is a proximate cause of death if the conduct, “by the natural and continuous sequence of events, causes the death and without which the death would not have occurred.” There is no question that the defendant’s negligent failure to stop, or yield the right of way, at the intersection (for which the defendant accepts responsibility in this appeal) set in motion a chain of events that resulted in the victim’s death. The victim’s injuries from the accident exacerbated serious preexisting health problems and required her to be intubated and placed on the ventilator. Her ultimate decision to be removed from life support was not an independent occurrence but the final step in the continuous sequence of events that began with the defendant’s negligent operation of her automobile. “But for” the negligence, the accident would not have occurred, and the victim would not have been forced into the position of having to make what was, in retrospect, a true life-or-death decision.

The general rule is that intervening conduct of a third party will relieve a defendant of culpability for antecedent negligence only if such an intervening response was not reasonably foreseeable…. “This is just another way of saying that an intervening act of a third party that was not reasonably foreseeable in the circumstances would prevent the victim’s death from following naturally and continuously from the defendant’s conduct.” Commonwealth v. Askew (1989). Whether an intervening act was reasonably foreseeable and, thus, followed naturally from the defendant’s conduct, or unforeseeable and, thus, broke the chain of causation as matter of law, is a question of fact for the jury to decide based on an assessment of the circumstances. See Restatement (Second) of Torts § 453 comment b (1965) (if either facts or reasonable foreseeability of intervening act are subject to reasonable difference of opinion, question of proximate cause must go to jury).

Here, the victim’s choice was between invasive life support that might have assured her survival, but could also have led to a life of ventilator dependence (and, we may assume, continued pain and suffering), or acceptance of “comfort measures” only. The record shows that the victim was intelligent and coherent at all times. She had an absolute right to make the decision that she did. Modern medicine can sometimes prolong or sustain life by way of invasive procedures, but it is common knowledge that some patients will refuse to consent to such procedures. The jury were warranted in determining, in the circumstances of this case, that the victim’s decision to forgo invasive life support was reasonably foreseeable.[3]

The defendant poses the question: “In the realm of crimes of negligence, should the tort concept of ‘you take your victim as you find him’ apply … even though, by pure chance and coincidence, it has the effect of turning an act of simple negligence into a serious crime?” The answer to this question is “yes.”

Through the enactment of G.L. c. 90, § 24G (b ), the Legislature has decided, as matter of social policy, to deter acts of reckless driving by making the killing of another human being by means of negligent operation of a motor vehicle an offense punishable by up to two and one-half years’ imprisonment and a $3,000 fine. Prior to the statute’s enactment, prosecutors presented with facts like those before us had to choose between prosecution of a misdemeanor, such as driving so as to endanger, G.L. c. 90, § 24(2) (a), or of the far more serious crime of involuntary manslaughter, G.L. c. 265, § 13, which carries a maximum penalty of twenty years’ imprisonment. We have concluded that the Legislature intended the statute “to provide a middle ground between the felony of manslaughter and the misdemeanor of driving so as to endanger.” A finding of ordinary negligence is sufficient to establish a violation of the statute. The defendant’s insistence that this standard is not fair, or leaves “nothing to soften the blow,” is irrelevant.

The defendant’s suggestion that she should not be held accountable for the victim’s death, because the same injuries would have been minor if inflicted on a healthy young person, has no merit. Our long-standing rule in Massachusetts, in criminal law as well as in tort, is that “the wrongdoer takes the victim as he or she finds him.”

We now consider the defendant’s argument that the judge’s instructions to the jury on causation were so inadequate and confusing as to require a new trial. The defendant asserted no challenge to the judge’s instructions at trial. She is entitled to relief only if she demonstrates error in the instructions that created a substantial risk of a miscarriage of justice, namely, “a substantial danger that the jury was misled by [an] erroneous instruction, and that the instruction may have materially influenced their appraisal of the [evidence].”

The judge properly charged the jury on the elements of negligent motor vehicle homicide. He advised the jury that there may be more than one cause of a person’s death, but that the Commonwealth is required to prove beyond a reasonable doubt that the defendant “directly and substantially set in motion a chain of events that produced the death in a natural and continuous sequence,” and that the death would not have occurred without the defendant’s actions. This is a correct statement of the law.

The judge instructed the jury on the law of intervening events and superseding causes, as set forth in the margin,[4] in accordance with what has been said in this opinion. The judge emphasized that the jury must acquit the defendant “if the death would not have occurred without the intervention of another person or event, and a reasonable person in the same circumstances would not have foreseen the likely possibility of such a result.” There was no possibility that the jury did not understand that they must find beyond a reasonable doubt that the defendant’s negligence directly set in motion a continuous chain of events that produced the death, and that they must acquit the defendant if the death would not have occurred without the intervention of some other person or event that was not reasonably foreseeable. The judge’s instructions focused the jury’s attention on the issue of causation and correctly left the issue of foreseeability to the jury.

…The judgment of conviction is affirmed.

So ordered.

Notes and questions on Carlson

  1. Carlson, like the case before it, concerns causation, and the link between causation and the defendant’s mental state. This appellate opinion is focused on the question whether there is adequate evidence that Sandra Carlson caused the victim’s death. As the court points out in footnote 4, at trial the defendant raised two separate, alternative arguments: that her conduct was not negligent, and that her conduct (even if negligent) did not cause the victim’s death. But only the causation issue was raised on appeal, for reasons not made clear in the appellate opinion. The court does not explain how negligence is defined in Massachusetts law, but it does identify the relevant evidence of negligence: Carlson failed to stop at a stop sign (or yield the right of way when she was obligated to do so).
  2. Assuming Carlson was in fact negligent, the question becomes whether her negligent driving was the cause of Carol Suprenant’s death. Carlson’s argument on appeal focuses on proximate cause and, more specifically, the concept of an intervening or superceding cause. What is “proximate cause”? That term is often used to express the idea that the defendant’s conduct must be sufficiently closely related to the result in question, or sufficiently influential on that result, to merit imposing liability on the defendant. But what does it mean for conduct to be “sufficiently” related to a result? Proximate cause analysis has frequently involved normative, subjective, and hard-to-express judgments about the defendant’s culpability or blameworthiness. As the Carlson court explained in a footnote not included above,
    The term “proximate cause” has fallen into disfavor. Drafters of the Restatement (Third) of Torts: Liability for Physical Harm § 574 (Proposed Final Draft No. 1, 2005), make clear their dislike for the term as “an especially poor one to describe the idea to which it is connected,” and have opted instead to use “scope of liability” as the umbrella term for the concept that, for liability to be imposed, the harm that occurred must be one that results from the hazards that made the defendant’s conduct tortious. We continue to use the term as it has been used in the past, as shorthand for the principle that an actor’s liability is limited to those physical harms that are within the foreseeable risks of the tortious conduct…. We thus leave for another day, in a case where the matter is appropriately briefed, the issue whether we should replace the term “proximate cause,” as defined in our case law, with the term “scope of liability,” as defined in the proposed Restatement (Third) of Torts, and the principles accompanying “scope of liability” set forth therein. The judge did not use the term “proximate cause” while instructing the jury.


    Carlson, 849 N.E.2d 790, 794 n. 5 (2006). Does the term “scope of liability” clarify matters? Or does it simply restate the underlying (and inevitably normative, subjective) question – do we think this defendant’s actions are sufficiently linked to the bad result to make it appropriate to punish this defendant?

  3. Whether a jurisdiction embraces the term “proximate cause” or not, it is fairly standard to consider intervening or superceding factors as part of causation analysis. The idea is often expressed in the metaphor used by Sandra Carlson here: certain interventions will “break the chain” of causation, or sever the link between the defendant’s conduct and the relevant result. Here, Carlson argued that Carol Suprenant’s rejection of medical treatment broke the chain of causation, separating Carlson’s negligent driving from Suprenant’s eventual death. Why does the Massachusetts court reject this argument?
  4. Back to negligence: we use appellate cases as case studies, and the facts of Carlson make it a great case study on issues of causation. However, because Massachusetts uses tort-law principles of negligence for its motor vehicle homicide statute, Carlson might leave you confused about the relationship between negligence in tort law and negligence in criminal law. Most jurisdictions (even if not Massachusetts) do distinguish between civil negligence (the tort standard) and criminal negligence. Here’s one way to think about the distinction. In tort, negligence is most often a description of someone’s conduct or actions: this person had a duty of care; he did not act in a way consistent with that duty; his failure to exercise some duty of care led to some bad result. Negligence in tort is not primarily about a person’s brain—it’s about what he did or didn’t do, rather than about what he was or wasn’t thinking.  In criminal law, in contrast, negligence is most often a description of a mental state: it’s what you might call culpable obliviousness. To be sure, to have a crime, the mental state of negligence needs to go along with conduct – you need both mens rea and actus reus to get the crime. But when criminal law uses the word negligence, it’s asking you to think about the person’s state of mind. And usually, criminal negligence is not simply a state of mind of forgetfulness or unawareness, but a state of mind that can be characterized as a “gross deviation” from a reasonable person’s level of awareness or attentiveness. For a typical definition of criminal negligence, look again at Model Penal Code § 2.02(d), reprinted above after Robertson.

When Killing Isn’t Criminal

Sometimes, killing another person is not classified as a criminal act, even if the killing is intentional. An affirmative defense of self-defense or insanity could relieve the person who kills from criminal liability, as mentioned briefly above in the notes after Patterson, and as discussed in greater depth in Chapter Ten. Similarly, principles of law enforcement justification such as those discussed in the notes after Robertson often shield police officers from criminal liability for civilian deaths. Jurisdictions have some leeway in defining the scope of self-defense, insanity, or a law enforcement justification. The guidelines for police use of force are somewhat general, to the frustration of many critics: states often empower police to use as much force (including as much deadly force) as is “reasonable.”

Keep in mind that whether a given killing meets the legal standard for self-defense, insanity, or a law enforcement justification is a question that is not always subject to formal adjudication. If prosecutors simply decline to bring homicide charges (or any other type of criminal charge, for that matter), there is little that other parties can do to challenge that decision. On this point, you may wish to look again at Inmates of Attica v. Rockefeller in Chapter Three. Recall that prison officials killed more than 30 prisoners after a disturbance at a state prison. Despite allegations that at least some of the killings were retaliatory rather than defensive, state and federal prosecutors declined to charge the officials with homicide or other criminal offenses. The Second Circuit rejected the surviving prisoners’ efforts to compel prosecution.

Sexual Assault

New Jersey Stat. Ann. 2C:14–2c(1):

c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

(2) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated;

(3) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional or occupational status;

(4) The victim is at least 16 but less than 18 years old and:

(a) The actor is related to the victim by blood or affinity to the third degree; or

(b) The actor has supervisory or disciplinary power over the victim; or

(c) The actor is a foster parent, a guardian, or stands in loco parentis within the household;

(5) The victim is at least 13 but less than 16 years old and the actor is at least 4 years older than the victim.

Sexual assault is a crime of the second degree.

STATE of New Jersey In the Interest of M.T.S.

Supreme Court of New Jersey
609 A.2d 1266

Decided July 30, 1992

The opinion of the Court was delivered by HANDLER, J.

Under New Jersey law a person who commits an act of sexual penetration using physical force or coercion is guilty of second-degree sexual assault. The sexual assault statute does not define the words “physical force.” The question posed by this appeal is whether the element of “physical force” is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result.

That issue is presented in the context of what is often referred to as “acquaintance rape.” The record in the case discloses that the juvenile, a seventeen-year-old boy, engaged in consensual kissing and heavy petting with a fifteen-year-old girl and thereafter engaged in actual sexual penetration of the girl to which she had not consented. There was no evidence or suggestion that the juvenile used any unusual or extra force or threats to accomplish the act of penetration.

The trial court determined that the juvenile was delinquent for committing a sexual assault. The Appellate Division reversed…. We granted the State’s petition for certification.


The issues in this case are perplexing and controversial. We must explain the role of force in the contemporary crime of sexual assault and then define its essential features. We then must consider what evidence is probative to establish the commission of a sexual assault. The factual circumstances of this case expose the complexity and sensitivity of those issues and underscore the analytic difficulty of those seemingly-straightforward legal questions.

On Monday, May 21, 1990, fifteen-year-old C.G. was living with her mother, her three siblings, and several other people, including M.T.S. and his girlfriend. A total of ten people resided in the three-bedroom town-home at the time of the incident. M.T.S., then age seventeen, was temporarily residing at the home with the permission of C.G.’s mother; he slept downstairs on a couch. C.G. had her own room on the second floor. At approximately 11:30 p.m. on May 21, C.G. went upstairs to sleep after having watched television with her mother, M.T.S., and his girlfriend. When C.G. went to bed, she was wearing underpants, a bra, shorts, and a shirt. At trial, C.G. and M.T.S. offered very different accounts concerning the nature of their relationship and the events that occurred after C.G. had gone upstairs. The trial court did not credit fully either teenager’s testimony.

C.G. stated that earlier in the day, M.T.S. had told her three or four times that he “was going to make a surprise visit up in [her] bedroom.” She said that she had not taken M.T.S. seriously and considered his comments a joke because he frequently teased her. She testified that M.T.S. had attempted to kiss her on numerous other occasions and at least once had attempted to put his hands inside of her pants, but that she had rejected all of his previous advances.

C.G. testified that on May 22, at approximately 1:30 a.m., she awoke to use the bathroom. As she was getting out of bed, she said, she saw M.T.S., fully clothed, standing in her doorway. According to C.G., M.T.S. then said that “he was going to tease [her] a little bit.” C.G. testified that she “didn’t think anything of it”; she walked past him, used the bathroom, and then returned to bed, falling into a “heavy” sleep within fifteen minutes. The next event C.G. claimed to recall of that morning was waking up with M.T.S. on top of her, her underpants and shorts removed. She said “his penis was into [her] vagina.” As soon as C.G. realized what had happened, she said, she immediately slapped M.T.S. once in the face, then “told him to get off [her], and get out.” She did not scream or cry out. She testified that M.T.S. complied in less than one minute after being struck; according to C.G., “he jumped right off of [her].” She said she did not know how long M.T.S. had been inside of her before she awoke.

C.G. said that after M.T.S. left the room, she “fell asleep crying” because “[she] couldn’t believe that he did what he did to [her].” She explained that she did not immediately tell her mother or anyone else in the house of the events of that morning because she was “scared and in shock.” According to C.G., M.T.S. engaged in intercourse with her “without [her] wanting it or telling him to come up [to her bedroom].” By her own account, C.G. was not otherwise harmed by M.T.S.

At about 7:00 a.m., C.G. went downstairs and told her mother about her encounter with M.T.S. earlier in the morning and said that they would have to “get [him] out of the house.” While M.T.S. was out on an errand, C.G.’s mother gathered his clothes and put them outside in his car; when he returned, he was told that “[he] better not even get near the house.” C.G. and her mother then filed a complaint with the police.

According to M.T.S., he and C.G. had been good friends for a long time, and their relationship “kept leading on to more and more.” He had been living at C.G.’s home for about five days before the incident occurred; he testified that during the three days preceding the incident they had been “kissing and necking” and had discussed having sexual intercourse. The first time M.T.S. kissed C.G., he said, she “didn’t want him to, but she did after that.” He said C.G. repeatedly had encouraged him to “make a surprise visit up in her room.”

M.T.S. testified that at exactly 1:15 a.m. on May 22, he entered C.G.’s bedroom as she was walking to the bathroom. He said C.G. soon returned from the bathroom, and the two began “kissing and all,” eventually moving to the bed. Once they were in bed, he said, they undressed each other and continued to kiss and touch for about five minutes. M.T.S. and C.G. proceeded to engage in sexual intercourse. According to M.T.S., who was on top of C.G., he “stuck it in” and “did it [thrust] three times, and then the fourth time [he] stuck it in, that’s when [she] pulled [him] off of her.” M.T.S. said that as C.G. pushed him off, she said “stop, get off,” and he “hopped off right away.”

According to M.T.S., after about one minute, he asked C.G. what was wrong; she replied with a back-hand to his face. He recalled asking C.G. what was wrong a second time, and her replying, “how can you take advantage of me or something like that.” M.T.S. said that he proceeded to get dressed and told C.G. to calm down, but that she then told him to get away from her and began to cry. Before leaving the room, he told C.G., “I’m leaving … I’m going with my real girlfriend, don’t talk to me … I don’t want nothing to do with you or anything, stay out of my life … don’t tell anybody about this … it would just screw everything up.” He then walked downstairs and went to sleep.

On May 23, 1990, M.T.S. was charged with conduct that if engaged in by an adult would constitute second-degree sexual assault of the victim, contrary to N.J.S.A. 2C:14–2c(1)….

Following a two-day trial on the sexual assault charge, M.T.S. was adjudicated delinquent. After reviewing the testimony, the court concluded that the victim had consented to a session of kissing and heavy petting with M.T.S. The trial court did not find that C.G. had been sleeping at the time of penetration, but nevertheless found that she had not consented to the actual sexual act. Accordingly, the court concluded that the State had proven second-degree sexual assault beyond a reasonable doubt. On appeal, following the imposition of suspended sentences on the sexual assault and the other remaining charges, the Appellate Division determined that the absence of force beyond that involved in the act of sexual penetration precluded a finding of second-degree sexual assault. It therefore reversed the juvenile’s adjudication of delinquency for that offense.


The New Jersey Code of Criminal Justice, N.J.S.A. 2C:14–2c(1), defines “sexual assault” as the commission “of sexual penetration” “with another person” with the use of “physical force or coercion.” An unconstrained reading of the statutory language indicates that both the act of “sexual penetration” and the use of “physical force or coercion” are separate and distinct elements of the offense. Neither the definitions section of 2C:14 nor the remainder of the Code of Criminal Justice provides assistance in interpreting the words “physical force.” The initial inquiry is, therefore, whether the statutory words are unambiguous on their face and can be understood and applied in accordance with their plain meaning. The answer to that inquiry is revealed by the conflicting decisions of the lower courts and the arguments of the opposing parties. The trial court held that “physical force” had been established by the sexual penetration of the victim without her consent. The Appellate Division believed that the statute requires some amount of force more than that necessary to accomplish penetration.

The parties offer two alternative understandings of the concept of “physical force” as it is used in the statute. The State would read “physical force” to entail any amount of sexual touching brought about involuntarily. A showing of sexual penetration coupled with a lack of consent would satisfy the elements of the statute. The Public Defender urges an interpretation of “physical force” to mean force “used to overcome lack of consent.” That definition equates force with violence and leads to the conclusion that sexual assault requires the application of some amount of force in addition to the act of penetration.

…Resort to common experience or understanding does not yield a conclusive meaning [of the term force]….

Thus, as evidenced by the disagreements among the lower courts and the parties, and the variety of possible usages, the statutory words “physical force” do not evoke a single meaning that is obvious and plain. Hence, we must pursue avenues of construction in order to ascertain the meaning of that statutory language. Those avenues are well charted. When a statute is open to conflicting interpretations, the court seeks the underlying intent of the legislature, relying on legislative history and the contemporary context of the statute. With respect to a law, like the sexual assault statute, that “alters or amends the previous law or creates or abolishes types of actions, it is important, in discovering the legislative intent, to ascertain the old law, the mischief and the proposed remedy.” We also remain mindful of the basic tenet of statutory construction that penal statutes are to be strictly construed in favor of the accused. Nevertheless, the construction must conform to the intent of the Legislature.

…. The origin of the rape statute that the current statutory offense of sexual assault replaced can be traced to the English common law. Under the common law, rape was defined as “carnal knowledge of a woman against her will.” Cynthia A. Wicktom, Note, Focusing on the Offender’s Forceful Conduct: A Proposal for the Redefinition of Rape Laws, 56 Geo.Wash.L.Rev. 399, 401 (1988) (Offender’s Forceful Conduct ). American jurisdictions generally adopted the English view, but over time states added the requirement that the carnal knowledge have been forcible, apparently in order to prove that the act was against the victim’s will. As of 1796, New Jersey statutory law defined rape as “carnal knowledge of a woman, forcibly and against her will.” Crimes Act of March 18, 1796 § 8, [1821] N.J.Rev.Laws (Pennington) 246. Those three elements of rape—carnal knowledge, forcibly, and against her will—remained the essential elements of the crime until 1979. Leigh Bienen, Rape III—National Developments in Rape Reform Legislation, 6 Women’s Rts.L.Rep. 170, 207 (1981) (Bienen, Rape III ).

Under traditional rape law, in order to prove that a rape had occurred, the state had to show both that force had been used and that the penetration had been against the woman’s will. Force was identified and determined not as an independent factor but in relation to the response of the victim, which in turn implicated the victim’s own state of mind. “Thus, the perpetrator’s use of force became criminal only if the victim’s state of mind met the statutory requirement. The perpetrator could use all the force imaginable and no crime would be committed if the state could not prove additionally that the victim did not consent.” National Institute of Law Enforcement and Criminal Justice, Forcible Rape—An Analysis of Legal Issues 5 (March 1978). Although the terms “non-consent” and “against her will” were often treated as equivalent, under the traditional definition of rape, both formulations squarely placed on the victim the burden of proof and of action. Effectively, a woman who was above the age of consent had actively and affirmatively to withdraw that consent for the intercourse to be against her will….

The presence or absence of consent often turned on credibility. To demonstrate that the victim had not consented to the intercourse, and also that sufficient force had been used to accomplish the rape, the state had to prove that the victim had resisted. According to the oft-quoted Lord Hale, to be deemed a credible witness, a woman had to be of good fame, disclose the injury immediately, suffer signs of injury, and cry out for help. 1 Matthew Hale, History of the Pleas of the Crown 633 (1st ed. 1847). Courts and commentators historically distrusted the testimony of victims, “assuming that women lie about their lack of consent for various reasons: to blackmail men, to explain the discovery of a consensual affair, or because of psychological illness.” Evidence of resistance was viewed as a solution to the credibility problem; it was the “outward manifestation of nonconsent, [a] device for determining whether a woman actually gave consent.” Note, The Resistance Standard in Rape Legislation, 18 Stan.L.Rev. 680, 689 (1966).

The resistance requirement had a profound effect on the kind of conduct that could be deemed criminal and on the type of evidence needed to establish the crime. Courts assumed that any woman who was forced to have intercourse against her will necessarily would resist to the extent of her ability. People v. Barnes (Cal. 1986) (observing that “[h]istorically, it was considered inconceivable that a woman who truly did not consent to sexual intercourse would not meet force with force”). In many jurisdictions the requirement was that the woman have resisted to the utmost. “Rape is not committed unless the woman oppose the man to the utmost limit of her power.” People v. Carey (N.Y.1918). “[A] mere tactical surrender in the face of an assumed superior physical force is not enough. Where the penalty for the defendant may be supreme, so must resistance be unto the uttermost.” Moss v. State (Miss. 1950). Other states followed a “reasonableness” standard, while some required only sufficient resistance to make non-consent reasonably manifest.

At least by the 1960s courts in New Jersey followed a standard for establishing resistance that was somewhat less drastic than the traditional rule. “The fact that a victim finally submits does not necessarily imply that she consented. Submission to a compelling force, or as a result of being put in fear, is not consent.” State v. Harris (N.J. 1961). Nonetheless, the “resistance” requirement remained an essential feature of New Jersey rape law. Thus, in 1965 the Appellate Division stated: “[W]e have rejected the former test that a woman must resist ‘to the uttermost.’ We only require that she resist as much as she possibly can under the circumstances.”

The judicial interpretation of the pre-reform rape law in New Jersey, with its insistence on resistance by the victim, greatly minimized the importance of the forcible and assaultive aspect of the defendant’s conduct. Rape prosecutions turned then not so much on the forcible or assaultive character of the defendant’s actions as on the nature of the victim’s response. Note, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va.L.Rev. 1500, 1505–07 (1975) (Definition of Forcible Rape). “[I]f a woman assaulted is physically and mentally able to resist, is not terrified by threats, and is not in a place and position that resistance would have been useless, it must be shown that she did, in fact, resist the assault.” State v. Terry. Under the pre-reform law, the resistance offered had to be “in good faith and without pretense, with an active determination to prevent the violation of her person, and must not be merely passive and perfunctory.” That the law put the rape victim on trial was clear.

The resistance requirement had another untoward influence on traditional rape law. Resistance was necessary not only to prove non-consent but also to demonstrate that the force used by the defendant had been sufficient to overcome the victim’s will. The amount of force used by the defendant was assessed in relation to the resistance of the victim. See, e.g., Tex. Penal Code Ann. § 21.02 (1974) (repealed 1983) (stating that “the amount of force necessary to negate consent is a relative matter to be judged under all the circumstances, the most important of which is the resistance of the female”). In New Jersey the amount of force necessary to establish rape was characterized as “the degree of force sufficient to overcome any resistance that had been put up by the female.” State v. Terry. Resistance, often demonstrated by torn clothing and blood, was a sign that the defendant had used significant force to accomplish the sexual intercourse. Thus, if the defendant forced himself on a woman, it was her responsibility to fight back, because force was measured in relation to the resistance she put forward. Only if she resisted, causing him to use more force than was necessary to achieve penetration, would his conduct be criminalized. Indeed, the significance of resistance as the proxy for force is illustrated by cases in which victims were unable to resist; in such cases the force incident to penetration was deemed sufficient to establish the “force” element of the offense.

The importance of resistance as an evidentiary requirement set the law of rape apart from other common-law crimes, particularly in the eyes of those who advocated reform of rape law in the 1970s. See, e.g., Note, The Victim in a Forcible Rape Case: A Feminist View, 11 Am.Crim.L.Rev. 335, 346 (1973). However, the resistance requirement was not the only special rule applied in the rape context. A host of evidentiary rules and standards of proof distinguished the legal treatment of rape from the treatment of other crimes. Many jurisdictions held that a rape conviction could not be sustained if based solely on the uncorroborated testimony of the victim. Often judges added cautionary instructions to jury charges warning jurors that rape was a particularly difficult charge to prove. Courts in New Jersey allowed greater latitude in cross-examining rape victims and in delving into their backgrounds than in ordinary cases. Rape victims were required to make a prompt complaint or have their allegations rejected or viewed with great skepticism. Some commentators suggested that there be mandatory psychological testing of rape victims. E.g., 3A Wigmore on Evidence § 924a (Chadbourn rev. ed. 1970).

During the 1970s feminists and others criticized the stereotype that rape victims were inherently more untrustworthy than other victims of criminal attack…. Reformers condemned such suspicion as discrimination against victims of rape. See, e.g., The Legal Bias against Rape Victims, 61 A.B.A.J. 464 (1975). They argued that “[d]istrust of the complainant’s credibility [had] led to an exaggerated insistence on evidence of resistance,” resulting in the victim rather than the defendant being put on trial. Toward a Consent Standard, supra 43 U.Chi.L.Rev. at 626. Reformers also challenged the assumption that a woman would seduce a man and then, in order to protect her virtue, claim to have been raped. If women are no less trustworthy than other purported victims of criminal attack, the reformers argued, then women should face no additional burdens of proving that they had not consented to or had actively resisted the assault. see Linda Brookover Bourque, Defining Rape 110 (1989) (declaring objective of reform to “bring[ ] legal standards for rape cases in line with those used in other violent crimes by normalizing requirements for evidence”).

To refute the misguided belief that rape was not real unless the victim fought back, reformers emphasized empirical research indicating that women who resisted forcible intercourse often suffered far more serious injury as a result…. That research discredited the assumption that resistance to the utmost or to the best of a woman’s ability was the most reasonable or rational response to a rape.

The research also helped demonstrate the underlying point of the reformers that the crime of rape rested not in the overcoming of a woman’s will or the insult to her chastity but in the forcible attack itself—the assault on her person. Reformers criticized the conception of rape as a distinctly sexual crime rather than a crime of violence. They emphasized that rape had its legal origins in laws designed to protect the property rights of men to their wives and daughters. Susan Brownmiller, Against Our Will: Men, Women, and Rape 377 (1975); Acquaintance Rape: The Hidden Crime 318 (Andrea Parrot & Laurie Bechhofer, eds. 1991). Although the crime had evolved into an offense against women, reformers argued that vestiges of the old law remained, particularly in the understanding of rape as a crime against the purity or chastity of a woman. Definition of Forcible Rape, supra. The burden of protecting that chastity fell on the woman, with the state offering its protection only after the woman demonstrated that she had resisted sufficiently.

That rape under the traditional approach constituted a sexual rather than an assaultive crime is underscored by the spousal exemption. According to the traditional reasoning, a man could not rape his wife because consent to sexual intercourse was implied by the marriage contract. Therefore, sexual intercourse between spouses was lawful regardless of the force or violence used to accomplish it. Offender’s Forceful Conduct, supra; Note, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv.L.Rev. 1255, 1258–60 (1986); see also Hale, supra (noting that “a ‘ravished’ woman could ‘redeem’ the convicted offender and save him from execution by marrying him”).

Critics of rape law agreed that the focus of the crime should be shifted from the victim’s behavior to the defendant’s conduct, and particularly to its forceful and assaultive, rather than sexual, character. Reformers also shared the goals of facilitating rape prosecutions and of sparing victims much of the degradation involved in bringing and trying a charge of rape. There were, however, differences over the best way to redefine the crime. Some reformers advocated a standard that defined rape as unconsented-to sexual intercourse; others urged the elimination of any reference to consent from the definition of rape. Nonetheless, all proponents of reform shared a central premise: that the burden of showing non-consent should not fall on the victim of the crime. In dealing with the problem of consent the reform goal was not so much to purge the entire concept of consent from the law as to eliminate the burden that had been placed on victims to prove they had not consented.

Similarly, with regard to force, rape law reform sought to give independent significance to the forceful or assaultive conduct of the defendant and to avoid a definition of force that depended on the reaction of the victim. Traditional interpretations of force were strongly criticized for failing to acknowledge that force may be understood simply as the invasion of “bodily integrity.” In urging that the “resistance” requirement be abandoned, reformers sought to break the connection between force and resistance.


The history of traditional rape law sheds clearer light on the factors that became most influential in the enactment of current law dealing with sexual offenses. The circumstances surrounding the actual passage of the current law reveal that it was conceived as a reform measure reconstituting the law to address a widely-sensed evil and to effectuate an important public policy. Those circumstances are highly relevant in understanding legislative intent and in determining the objectives of the current law.

In October 1971, the New Jersey Criminal Law Revision Commission promulgated a Final Report and Commentary on its proposed New Jersey Penal Code. New Jersey Criminal Law Revision Commission, The New Jersey Penal Code, Vol. I: Report and Penal Code (1971). The proposed Code substantially followed the American Law Institute’s Model Penal Code (MPC) with respect to sexual offenses. See M.P.C. §§ 213.1 to 213.4. The proposed provisions did not present a break from traditional rape law. They would have established two principal sexual offenses: aggravated rape, a first-degree or second-degree crime involving egregious circumstances; and rape, a crime of the third-degree. 1971 Penal Code, § 2C:14–1(a)(1). Rape was defined as sexual intercourse with a female to which she was compelled to submit by any threat that would prevent resistance by a woman of ordinary resolution. Id. at § 14–1(b)(1). The comments to the MPC, on which the proposed Code was based, state that “[c]ompulsion plainly implies non-consent,” and that the words “compels to submit” require more than “a token initial resistance.”

The Legislature did not endorse the Model Penal Code approach to rape. Rather, it passed a fundamentally different proposal in 1978 when it adopted the Code of Criminal Justice. L.1978, c. 95 § 2C:14–1 to –7; N.J.S.A. 2C:14–1 to –7. The new statutory provisions covering rape were formulated by a coalition of feminist groups assisted by the National Organization of Women (NOW) National Task Force on Rape. Both houses of the Legislature adopted the NOW bill, as it was called, without major changes and Governor Byrne signed it into law on August 10, 1978. The NOW bill had been modeled after the 1976 Philadelphia Center for Rape Concern Model Sex Offense Statute. The Model Sex Offense Statute in turn had been based on selected provisions of the Michigan Criminal Sexual Conduct Statute, Mich. Stat. Ann. § 28.788(4)(b) (Callaghan 1990), and on the reform statutes in New Mexico, Minnesota, and Wisconsin. The stated intent of the drafters of the Philadelphia Center’s Model Statute had been to remove all features found to be contrary to the interests of rape victims. John M. Cannel, New Jersey Criminal Code Annotated 279 (1991). According to its proponents the statute would “normalize the law. We are no longer saying rape victims are likely to lie. What we are saying is that rape is just like other violent crimes.”

Since the 1978 reform, the Code has referred to the crime that was once known as “rape” as “sexual assault.” The crime now requires “penetration,” not “sexual intercourse.” It requires “force” or “coercion,” not “submission” or “resistance.” It makes no reference to the victim’s state of mind or attitude, or conduct in response to the assault. It eliminates the spousal exception based on implied consent. It emphasizes the assaultive character of the offense by defining sexual penetration to encompass a wide range of sexual contacts, going well beyond traditional “carnal knowledge.” Consistent with the assaultive character, as opposed to the traditional sexual character, of the offense, the statute also renders the crime gender-neutral: both males and females can be actors or victims.

The reform statute defines sexual assault as penetration accomplished by the use of “physical force” or “coercion,” but it does not define either “physical force” or “coercion” or enumerate examples of evidence that would establish those elements. Some reformers had argued that defining “physical force” too specifically in the sexual offense statute might have the effect of limiting force to the enumerated examples. The task of defining “physical force” therefore was left to the courts.

That definitional task runs the risk of undermining the basic legislative intent to reformulate rape law. See Susan Estrich, Real Rape 60 (1987) (noting that under many modern formulations of rape “[t]he prohibition of force or ‘forcible compulsion’ ends up being defined in terms of a woman’s resistance”). That risk was encountered by the Michigan Supreme Court in People v. Patterson (1987). That court considered the sufficiency of the evidence of force or coercion in the prosecution of a sexual contact charge against a defendant who had placed his hands on the genital area of a seventeen-year-old girl while she was sleeping. A majority of the court concluded that the defendant had not used force as required by the statute because there was “no evidence of physical overpowering … [and] there was no submission.” Justice Boyle, in dissent, soundly criticized the majority’s position as a distortion of the legislature’s intent to protect the sexual privacy of persons from the use of force, coercion, or other undue advantage. Concluding that the statute did not require a showing of any extra force, Justice Boyle pointed out that in “defin[ing] force by measuring the degree of resistance by the victim,” the majority had effectively “reintroduc[ed] the resistance requirement, when the proper focus ought to be on whether the contact was unpermitted.”

Unlike the Michigan statute interpreted in Patterson, the New Jersey Code of Criminal Justice does not refer to force in relation to “overcoming the will” of the victim, or to the “physical overpowering” of the victim, or the “submission” of the victim. It does not require the demonstrated non-consent of the victim. As we have noted, in reforming the rape laws, the Legislature placed primary emphasis on the assaultive nature of the crime, altering its constituent elements so that they focus exclusively on the forceful or assaultive conduct of the defendant.

The Legislature’s concept of sexual assault and the role of force was significantly colored by its understanding of the law of assault and battery. As a general matter, criminal battery is defined as “the unlawful application of force to the person of another.” 2 Wayne LaFave & Austin Scott, Criminal Law, § 7.15 at 301 (1986). The application of force is criminal when it results in either (a) a physical injury or (b) an offensive touching. Any “unauthorized touching of another [is] a battery.” Thus, by eliminating all references to the victim’s state of mind and conduct, and by broadening the definition of penetration to cover not only sexual intercourse between a man and a woman but a range of acts that invade another’s body or compel intimate contact, the Legislature emphasized the affinity between sexual assault and other forms of assault and battery.

The intent of the Legislature to redefine rape consistent with the law of assault and battery is further evidenced by the legislative treatment of other sexual crimes less serious than and derivative of traditional rape. The Code redefined the offense of criminal sexual contact to emphasize the involuntary and personally-offensive nature of the touching. N.J.S.A. 2C:14–1(d). Sexual contact is criminal under the same circumstances that render an act of sexual penetration a sexual assault, namely, when “physical force” or “coercion” demonstrates that it is unauthorized and offensive. N.J.S.A. 2C:14–3(b). Thus, just as any unauthorized touching is a crime under traditional laws of assault and battery, so is any unauthorized sexual contact a crime under the reformed law of criminal sexual contact, and so is any unauthorized sexual penetration a crime under the reformed law of sexual assault.

The understanding of sexual assault as a criminal battery, albeit one with especially serious consequences, follows necessarily from the Legislature’s decision to eliminate non-consent and resistance from the substantive definition of the offense. Under the new law, the victim no longer is required to resist and therefore need not have said or done anything in order for the sexual penetration to be unlawful. The alleged victim is not put on trial, and his or her responsive or defensive behavior is rendered immaterial. We are thus satisfied that an interpretation of the statutory crime of sexual assault to require physical force in addition to that entailed in an act of involuntary or unwanted sexual penetration would be fundamentally inconsistent with the legislative purpose to eliminate any consideration of whether the victim resisted or expressed non-consent.

We note that the contrary interpretation of force—that the element of force need be extrinsic to the sexual act—would not only reintroduce a resistance requirement into the sexual assault law, but also would immunize many acts of criminal sexual contact short of penetration. The characteristics that make a sexual contact unlawful are the same as those that make a sexual penetration unlawful. An actor is guilty of criminal sexual contact if he or she commits an act of sexual contact with another using “physical force” or “coercion.” N.J.S.A. 2C:14–3(b). That the Legislature would have wanted to decriminalize unauthorized sexual intrusions on the bodily integrity of a victim by requiring a showing of force in addition to that entailed in the sexual contact itself is hardly possible.

Because the statute eschews any reference to the victim’s will or resistance, the standard defining the role of force in sexual penetration must prevent the possibility that the establishment of the crime will turn on the alleged victim’s state of mind or responsive behavior. We conclude, therefore, that any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of “physical force” is satisfied under N.J.S.A. 2C:14–2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.

Under the reformed statute, permission to engage in sexual penetration must be affirmative and it must be given freely, but that permission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances. Persons need not, of course, expressly announce their consent to engage in intercourse for there to be affirmative permission. Permission to engage in an act of sexual penetration can be and indeed often is indicated through physical actions rather than words. Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.

Our understanding of the meaning and application of “physical force” under the sexual assault statute indicates that the term’s inclusion was neither inadvertent nor redundant. The term “physical force,” like its companion term “coercion,” acts to qualify the nature and character of the “sexual penetration.” Sexual penetration accomplished through the use of force is unauthorized sexual penetration. That functional understanding of “physical force” encompasses the notion of “unpermitted touching” derived from the Legislature’s decision to redefine rape as a sexual assault. As already noted, under assault and battery doctrine, any amount of force that results in either physical injury or offensive touching is sufficient to establish a battery. Hence, as a description of the method of achieving “sexual penetration,” the term “physical force” serves to define and explain the acts that are offensive, unauthorized, and unlawful.

That understanding of the crime of sexual assault fully comports with the public policy sought to be effectuated by the Legislature. In redefining rape law as sexual assault, the Legislature adopted the concept of sexual assault as a crime against the bodily integrity of the victim. Although it is possible to imagine a set of rules in which persons must demonstrate affirmatively that sexual contact is unwanted or not permitted, such a regime would be inconsistent with modern principles of personal autonomy. The Legislature recast the law of rape as sexual assault to bring that area of law in line with the expectation of privacy and bodily control that long has characterized most of our private and public law. In interpreting “physical force” to include any touching that occurs without permission we seek to respect that goal.

Today the law of sexual assault is indispensable to the system of legal rules that assures each of us the right to decide who may touch our bodies, when, and under what circumstances. The decision to engage in sexual relations with another person is one of the most private and intimate decisions a person can make. Each person has the right not only to decide whether to engage in sexual contact with another, but also to control the circumstances and character of that contact. No one, neither a spouse, nor a friend, nor an acquaintance, nor a stranger, has the right or the privilege to force sexual contact. See Definition of Forcible Rape, supra, (arguing that “forcible rape is viewed as a heinous crime primarily because it is a violent assault on a person’s bodily security, particularly degrading because that person is forced to submit to an act of the most intimate nature”).

We emphasize as well that what is now referred to as “acquaintance rape” is not a new phenomenon. Nor was it a “futuristic” concept in 1978 when the sexual assault law was enacted. Current concern over the prevalence of forced sexual intercourse between persons who know one another reflects both greater awareness of the extent of such behavior and a growing appreciation of its gravity. Notwithstanding the stereotype of rape as a violent attack by a stranger, the vast majority of sexual assaults are perpetrated by someone known to the victim. One respected study indicates that more than half of all rapes are committed by male relatives, current or former husbands, boyfriends or lovers. Diana Russell, The Prevalence and Incidence of Forcible Rape and Attempted Rape of Females, 7 Victimology 81 (1982). Similarly, contrary to common myths, perpetrators generally do not use guns or knives and victims generally do not suffer external bruises or cuts. Although this more realistic and accurate view of rape only recently has achieved widespread public circulation, it was a central concern of the proponents of reform in the 1970s.

The insight into rape as an assaultive crime is consistent with our evolving understanding of the wrong inherent in forced sexual intimacy. It is one that was appreciated by the Legislature when it reformed the rape laws, reflecting an emerging awareness that the definition of rape should correspond fully with the experiences and perspectives of rape victims. Although reformers focused primarily on the problems associated with convicting defendants accused of violent rape, the recognition that forced sexual intercourse often takes place between persons who know each other and often involves little or no violence comports with the understanding of the sexual assault law that was embraced by the Legislature. Any other interpretation of the law, particularly one that defined force in relation to the resistance or protest of the victim, would directly undermine the goals sought to be achieved by its reform.


In a case such as this one, in which the State does not allege violence or force extrinsic to the act of penetration, the factfinder must decide whether the defendant’s act of penetration was undertaken in circumstances that led the defendant reasonably to believe that the alleged victim had freely given affirmative permission to the specific act of sexual penetration. Such permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely-given authorization for the specific act of sexual penetration.

In applying that standard to the facts in these cases, the focus of attention must be on the nature of the defendant’s actions. The role of the factfinder is not to decide whether reasonable people may engage in acts of penetration without the permission of others. The Legislature answered that question when it enacted the reformed sexual assault statute: reasonable people do not engage in acts of penetration without permission, and it is unlawful to do so. The role of the factfinder is to decide not whether engaging in an act of penetration without permission of another person is reasonable, but only whether the defendant’s belief that the alleged victim had freely given affirmative permission was reasonable.

In these cases neither the alleged victim’s subjective state of mind nor the reasonableness of the alleged victim’s actions can be deemed relevant to the offense. The alleged victim may be questioned about what he or she did or said only to determine whether the defendant was reasonable in believing that affirmative permission had been freely given. To repeat, the law places no burden on the alleged victim to have expressed non-consent or to have denied permission, and no inquiry is made into what he or she thought or desired or why he or she did not resist or protest.

In short, in order to convict under the sexual assault statute in cases such as these, the State must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the alleged victim. As we have indicated, such proof can be based on evidence of conduct or words in light of surrounding circumstances and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed that there was affirmative and freely-given permission. If there is evidence to suggest that the defendant reasonably believed that such permission had been given, the State must demonstrate either that defendant did not actually believe that affirmative permission had been freely-given or that such a belief was unreasonable under all of the circumstances. Thus, the State bears the burden of proof throughout the case.

In the context of a sexual penetration not involving unusual or added “physical force,” the inclusion of “permission” as an aspect of “physical force” effectively subsumes and obviates any defense based on consent. See N.J.S.A. 2C:2–10c(3). The definition of “permission” serves to define the “consent” that otherwise might allow a defendant to avoid criminal liability. Because “physical force” as an element of sexual assault in this context requires the absence of affirmative and freely-given permission, the “consent” necessary to negate such “physical force” under a defense based on consent would require the presence of such affirmative and freely-given permission. Any lesser form of consent would render the sexual penetration unlawful and cannot constitute a defense.

In this case, the Appellate Division concluded that non-consensual penetration accomplished with no additional physical force or coercion is not criminalized under the sexual assault statute. It acknowledged that its conclusion was “anomalous” because it recognized that “a woman has every right to end [physically intimate] activity without sexual penetration.” Thus, it added to its holding that “[e]ven the force of penetration might … be sufficient if it is shown to be employed to overcome the victim’s unequivocal expressed desire to limit the encounter.”

The Appellate Division was correct in recognizing that a woman’s right to end intimate activity without penetration is a protectable right the violation of which can be a criminal offense. However, it misperceived the purpose of the statute in believing that the only way that right can be protected is by the woman’s unequivocally expressed desire to end the activity. The effect of that requirement would be to import into the sexual assault statute the notion that an assault occurs only if the victim’s will is overcome, and thus to reintroduce the requirement of non-consent and victim-resistance as a constituent material element of the crime. Under the reformed statute, a person’s failure to protest or resist cannot be considered or used as justification for bodily invasion.

We acknowledge that cases such as this are inherently fact sensitive and depend on the reasoned judgment and common sense of judges and juries. The trial court concluded that the victim had not expressed consent to the act of intercourse, either through her words or actions. We conclude that the record provides reasonable support for the trial court’s disposition.

Accordingly, we reverse the judgment of the Appellate Division and reinstate the disposition of juvenile delinquency for the commission of second-degree sexual assault.

Notes and questions on M.T.S.

  1. M.T.S. is a useful case because it both describes the traditional common law of rape and identifies the concerns that led advocates to push for statutory reform. Why was the common law definition of rape—“carnal knowledge of a woman, forcibly and against her will”—inadequate? Was the problem with the wording of the legal definition (the criminalization decision), or with the way that definition was used by prosecutors (the enforcement decision), or with the way that definition was applied by juries and trial courts (the adjudication decision)?
  2. The New Jersey Supreme Court speaks sometimes of consent, sometimes of permission. And of course, the traditional common law definition spoke of neither, but did specify that the intercourse be “against [the] will” of the complainant. Is there any meaningful difference between consent, permission, or will? Consider whether criminal law should care about the actual mental state of the person who alleges rape, or instead about what that person communicates regarding sex. Does a concern for the victim’s actual mental state invite courts to “put the victim on trial”? How does the New Jersey Supreme Court attempt to avoid that result?
  3. Consider the different roles of factfinders and appellate courts. In principle, facts are to be found at the trial court level, and appellate courts should answer only questions of law. Given that distinction, think about the detailed account of the factual evidence in Part I of the New Jersey Supreme Court’s opinion. Was it necessary to include the precise details of the encounter, as told both by C.G. and M.T.S.? Imagine that Part I included only one paragraph – the last paragraph that you see immediately before Part II, describing the trial court’s findings and the subsequent appeals. Would readers react differently to this case? Why do you think the New Jersey Supreme Court included the detailed chronology of the encounter?
  4. In M.T.S., the New Jersey Supreme Court introduced an “affirmative consent” standard long before the concept of affirmative consent became widely embraced. Although you are likely to have encountered the term “affirmative consent” before reading this case, especially if you attended any training or received any materials as a college student about appropriate sexual contacts, affirmative consent is still largely unknown to criminal definitions of rape or sexual assault. That is, even though many universities and colleges (and some high schools) seek to instill in their students the idea that sex without affirmative consent is objectionable, most U.S. jurisdictions define rape (or sexual assault) in terms of force or non-consent without an explicit requirement of affirmative consent.
  5. Is rape exceptional? Should the law view rape as “just like other violent crimes,” to quote the New Jersey Supreme Court (which was itself quoting advocates for the New Jersey statute)? Should we think of the crime as “sexual assault,” unwanted physical contact akin to the ordinary assaults studied at the outset of this chapter, but with a specific attendant circumstance: contact with sexual organs rather than other body parts? Or does “unwanted touching” take on a different character when sexual organs are involved? Are there features of sexual activity that make it categorically different from other types of physical contact, so that rape law should be categorically different from assault law? Professor Aya Gruber addresses these questions in Sex Exceptionalism in Criminal Law (Stanford Law Review, forthcoming 2023).
  6. Rape and race: Sexual offenses are another area of criminal law for which patterns of racial disparity have been extensively documented. First, as for homicide, “the racial composition of the defendant-victim dyad,” or the respective racial identities of the defendant and victim, has a significant influence on enforcement and adjudication decisions: black men accused of raping white women are more likely to be charged with severe offenses and subjected to severe penalties. See, e.g., I. Bennett Capers, The Unintentional Rapist, 87 Wash. U. L. Rev. 1345, 1360-1364 (2010). The death penalty is no longer available as a penalty for the crime of rape, but one of the considerations that led the Supreme Court to prohibit the imposition of capital punishment for rape was the fact that this penalty was reserved almost exclusively for black men convicted of assaulting white women. Beyond these sentencing patterns, Professor Capers writes of a more general “white letter law of rape” that exists alongside the “black letter” law.

    Most of the time … a type of unwritten law of race, what I have termed “white letter law”—suggesting near invisibility, something akin to laws “inscribed in white ink on white paper”—dictated whether the elements of the crime of rape had been satisfied; indeed, whether the elements were even capable of being satisfied. Even under Blackstone’s definition that rape was “carnal knowledge of a woman forcibly and against her will,” jurisdictions in this country applied a type of white letter law exemption. It was understood, for example, that the definition of rape did not prohibit the rape of black slaves, or, for that matter, slave children.

    The unwritten white letter law of rape held particular sway following ratification of the Reconstruction Amendments, when explicit distinctions based on race in criminal statutes risked invalidation under the Fourteenth Amendment’s Equal Protection Clause. Evidence of this can be seen in the black letter law’s initial requirement of proof that the victim resisted to the utmost before a conviction of rape would be sustained. Though the “utmost resistance” requirement was clear, what it meant in practice—in terms of which victims were believed, which men were prosecuted, and which defendants were found guilty—turned on what was often unsaid, i.e., the white letter law. As Susan Estrict aptly observed … resistance itself was color-dependent: “white women [were] not required to resist black men….”

    In short, though the black letter law was, at least on the books, “color-blind,” the white letter law provided caveats and exceptions that were color-coded.

Capers, The Unintentional Rapist, 1357-1358.

  1. [Footnote 2 by the Court:] The victim’s primary care physician testified at trial that the victim’s condition would have gradually deteriorated over time and that the disease would have shortened her life. He opined that, based on the severity of her disease, the victim could have expected to enjoy only three to six more years of “good quality” life.
  2. {Footnote 4 by the Court:] Conviction under G.L. c. 90, § 24G(b), requires proof by the Commonwealth beyond a reasonable doubt that (1) the defendant operated a motor vehicle, (2) on a public way, (3) in a negligent manner to endanger lives and public safety, (4) thereby causing the death of another person. The focus at trial was on whether the defendant was negligent and whether her negligence caused the victim’s death. Only the latter element is at issue in this appeal.
  3. [Footnote 6 by the Court:] The defendant’s attempt to assign blame to the victim for her own death, because she “made the deliberate choice to ... engage in irrational and self-destructive behavior” is not persuasive. There is no contributory negligence in the law of motor vehicle homicide. We also reject the defendant’s attempt to apply the tort doctrine of “avoidable consequences” to this criminal matter.
  4. [Footnote 8 by the Court:] “If the defendant’s actions would not have brought about the death all by themselves without the intervention of some other person or event, the defendant is still held responsible as the cause of death if two conditions are met. First, the defendant’s actions directly and substantially set in motion a natural, continuous sequence of events to cause the death. And second, a reasonable person in the defendant’s position would have foreseen that her actions could easily result in serious injury or death to someone like the victim.”

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