20.3 Assault, Battery, Sexual Offenses, Kidnapping, Arson & Possession Offenses

20.3 Assault, Battery, Sexual Offenses, Kidnapping, Arson & Possession Offenses

NCBE's outline lists assault and battery, rape and statutory rape, kidnapping, arson, and possession offenses as separate topics. For each, identify the act, the required mental state, and any attendant circumstance (such as lack of consent or the victim's age) that the prosecution must prove.

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Crimes Against the Person

1. Battery

• Definition: The unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.
• Mens Rea: General intent. It is not necessary that the defendant intended to cause injury; intending to commit the physical contact suffices.
• Force: Need not be applied directly; force can be applied indirectly (e.g., throwing a rock, poisoning food, unleashing a dog, or digging a pitfall).

2. Assault

Common law recognizes two separate and distinct forms of assault:

1. Attempted Battery: An attempt to commit a battery. Because this is an attempt crime, it requires specific intent to inflict bodily injury. The victim does not need to be aware of the assault (e.g., shooting at someone from behind who never hears the shot).
2. Intentional Apprehension: The intentional creation of a reasonable apprehension of imminent bodily harm in the victim. The victim must be consciously aware of the threat, and the threatened harm must be imminent. Conditional threats or threats of future harm do not constitute assault.

3. False Imprisonment & Kidnapping

• False Imprisonment: The unlawful confinement of a person without valid consent, substantially restricting their freedom of movement.
• Kidnapping: Common law kidnapping is false imprisonment aggravated by either movement (asportation) of the victim or concealment of the victim in a secret place. Even slight movement suffices, provided it is not merely incidental to another crime (such as robbery or rape).

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4. Arson

• Common Law Elements: The malicious burning of the dwelling house of another.
• Mens Rea: Malice (intentional burning or reckless disregard of an obvious risk of burning).
• Damage Required: Requires actual charring (scorching or smoke damage is insufficient; the fiber of the wood structure itself must be consumed by fire).

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More Crimes Against the Person

Aggravated Assault, Battery, and Mayhem

• Aggravation: Statutes increase punishment for assaults and batteries committed with a deadly weapon, causing serious bodily injury, with intent to commit a serious felony, or against protected victims such as police officers or children.
• Apprehension assault: Words alone generally do not create reasonable apprehension of imminent harm unless accompanied by conduct, such as advancing with a raised fist. A threat of future harm, or a conditional threat the victim can avoid ("I'd hit you if you weren't my brother"), is not assault.
• Reckless battery: Many modern statutes punish reckless or criminally negligent conduct causing bodily injury.
• Mayhem: At common law, permanently maiming or disfiguring another; modern statutes treat it as aggravated battery.

Rape and Sexual Offenses

• Common law: Unlawful sexual intercourse with a woman not the defendant's wife, by force and without her consent. The victim was traditionally required to resist.
• Modern statutes: Rape and sexual assault statutes are gender neutral, abolish the marital exemption, and do not require resistance. Lack of consent is established when the victim is compelled by force or threat, is unconscious, or is incapacitated by drugs, alcohol, or mental disability in a way the defendant knows or should know. Some states require only the absence of affirmative, freely given permission, treating the force inherent in intercourse without consent as sufficient (State in the Interest of M.T.S., N.J. 1992).
• Mistake about consent: Because rape is a general intent crime, many jurisdictions allow an honest and reasonable belief in consent as a defense; some do not.
• Fraud: Fraud about the nature of the act itself—such as falsely claiming that intercourse is a medical procedure—vitiates consent. Fraud about collateral matters, such as a promise to marry or pay, generally does not.
• Statutory rape: Intercourse with a person under the statutory age of consent is a crime regardless of the minor's consent. In most states it is strict liability as to age, though some allow a reasonable-mistake defense or have close-in-age exceptions. The protected minor cannot be convicted as an accomplice (Section 19.4).

Kidnapping Details

• Movement and concealment: Modern statutes require moving the victim a substantial distance or confining the victim in a place where he is not likely to be found.
• Incidental movement: Movement that is merely incidental to another crime—such as moving a store clerk a few feet to reach a safe during a robbery—is not kidnapping unless it substantially increases the risk of harm beyond that inherent in the other crime.
• Aggravated kidnapping: Statutes punish kidnapping more severely when committed for ransom, to hold a hostage, to facilitate a felony or flight, to inflict bodily injury or terrorize, or to interfere with a governmental function.
• Consent: Consent obtained by force, threat, or deception is invalid, and a young child or incompetent person cannot consent.

Arson Details

• Modern expansion: Most statutes extend arson to buildings other than dwellings, to vehicles, to damage by explosion, and to burning one's own property to collect insurance.
• Burning: At common law, the structure must be charred; mere blackening by smoke or scorching is not enough. Some modern statutes require only damage by fire.
• Malice: Intentional or reckless burning suffices; a specific intent to burn is not required.

Possession Offenses

• Actual and constructive possession: Actual possession is physical custody. Constructive possession is knowing dominion and control over an item or the place where it is kept, with the intent to exercise control. Two or more people may possess an item jointly.
• Knowledge: The defendant must know of the item's presence and, depending on the statute, its nature. Mere proximity to contraband, or presence in a place where it is found, is not enough by itself.
• Possession as an act: Under MPC § 2.01(4), possession satisfies the voluntary act requirement if the possessor knowingly obtained the item or was aware of controlling it for a long enough time to have been able to end possession.
• Inferences: Statutory presumptions of possession—such as a presumption that all occupants of a car possess a gun found inside—are constitutional only if the inference is rational on the facts of the case (County Court of Ulster County v. Allen, 1979). Intent to distribute drugs may be inferred from quantity, packaging, and cash.