Criminal Law. Mental Element. Defendant's Reasonable Belief That Prosecutrix Was above the Age of Consent Is a Defense to a Charge of Statutory Rape. People v. Hernandez (Cal. 1964)

1965 ◽  
Vol 78 (6) ◽  
pp. 1257
Keyword(s):  
Criminal Law ◽  
Statutory Rape ◽  
Reasonable Belief ◽  
Age Of Consent ◽  
Mental Element ◽  
A Charge

‘A reasonable cause’: the age of consent and the debate on gender and justice in the Irish Free State, 1922–35

2011 ◽  
Vol 37 (147) ◽  
pp. 427-446 ◽  
Author(s):  
Susannah Riordan
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Free State ◽  
Age Of Consent ◽  
Mental Element ◽  
Irish Free State ◽  
Constitutional Right

On 23 May 2006 the Irish Supreme Court declared that the Criminal Law Amendment Act, 1935 was inconsistent with the 1937 Constitution. It found that section 1 (1) of the act deprived a man charged with unlawful carnal knowledge of the defence of having made a reasonable mistake as to the age of the girl in question, and therefore of his constitutional right to a trial in due course of law. In his judgment, Mr Justice Adrian Hardiman stated that ‘the Section contains no balance: it wholly removes the mental element and expressly criminalises the mentally innocent. It need not necessarily have done so.’

My Little Girl Wife

2016 ◽  
Author(s):  
Nicholas L. Syrett
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
Middle Class ◽  
Working Class ◽  
The United States ◽  
Child Marriage ◽  
Statutory Rape ◽  
Age Of Consent ◽  
Minor Children ◽  
Meaningful Category

By the later nineteenth century, ideas about childhood and about marriage had undergone significant transformations in the United States, especially among the middle class. Children were now seen as innocents in need of protection and marriage was meant to be a complementary (if still unequal) union of two companionate souls. Both of these trends meant that child marriage increasingly came into disfavor. Focusing on depictions of child marriage in newspapers, debates about statutory rape laws, and marriage and divorce reform leagues, this chapter documents succesful efforts to raise the age of consent to marriage. It also shows the ways that working-class parents, generally those least likely to identify age as a meaningful category of identity, used these new laws to prevent their minor children from marrying.

reports described him as ‘emotionally unstable’ and in a ‘grossly elevated neurotic state’. The judge refused to admit the evidence, and on appeal following conviction it was contended that he was wrong. The primary contention was that the appellant’s pre-existing mental condition made him vulnerable to threats. Held, dismissing the appeal, the duress relied upon was duress by threats, but in some cases a defendant might be able to rely on ‘duress by circumstances’ (see Conway [1989] QB 290; Martin [1989] 1 All ER 652), and although not argued in this way it was proposed to consider whether the medical evidence could have been introduced on the basis that Hegarty might have been able to set up such a defence. Duress by threats provided a defence to a charge of any offence other than murder (see Howe [1987] AC 417), attempted murder (see Gotts [1982] 2 AC 412) and some forms of treason. It was founded on public policy considerations (see AG v Whelan [1934] IR 518). The fact that the defendant’s mind had been ‘overborne’ by the threats did not mean that he lacked the requisite intent to commit the crime (see DPP for Northern Ireland v Lynch [1975] AC 653, 703B). It followed that the law might have developed on the lines that, when considering duress, a purely subjective test should be applied, and it might well develop in this way in the future (see Law Com 218, para 29.14, November 1993, Cmnd 2370 and draft Criminal Law Bill, cl 25(2)). As the law stood however the test was not purely subjective but required an objective test to be satisfied (Howe). The jury had to consider the response of a sober person of reasonable firmness ‘sharing the characteristics of the defendant’. They could take account of age, sex and physical health, but it was open to consideration whether the shared characteristics could include a personality disorder of the kind suffered by the appellant. His counsel argued that the expert evidence was relevant to explain the reaction of a man like him to threats of violence to himself and his family, and admissible because the pathological aspects of his personality and the effect of his disorder on his behaviour were matters which lay outside the knowledge and experience of a judge and jury. Counsel referred to a passage in Emery (1993) 14 Cr App R (S) 394, 398 where Lord Taylor CJ said that: ‘... The question for the doctors was whether a woman of reasonable firmness with the characteristics of [the appellant], if abused in the manner which she said, would have had her will crushed so that she could not have protected her child.’ It was accepted that for the purposes of the subjective test medical evidence was admissible if the mental condition or abnormality was relevant and its effects lay outside the knowledge and experience of laymen. In the present case, the reports before the judge did not go that far, and the judge had to decide on the material before him. There were no grounds for disturbing his decision. As the evidence was not admissible to explain the reaction of the appellant himself, it was clearly not admissible on the objective test. The passage cited could not be read in isolation,

1996 ◽  
pp. 568-568
Keyword(s):  
Northern Ireland ◽  
Criminal Law ◽  
Mental Condition ◽  
Objective Test ◽  
Medical Evidence ◽  
Subjective Test ◽  
Attempted Murder ◽  
The Law ◽  
Set Up ◽  
A Charge

Child Protection through the Criminal Law

2020 ◽  
pp. 85-114
Author(s):  
Kenneth McK. Norrie
Keyword(s):  
Corporal Punishment ◽  
Criminal Law ◽  
Child Protection ◽  
Adult Population ◽  
Common Law ◽  
Legal Basis ◽  
Sexual Offences ◽  
The Common ◽  
The Law ◽  
A Charge

The earliest criminal law dealing with children differently from the adult population was that concerned with sexual offences. This chapter explores the changing policies of the law, from the late 19th century fear of girls being exposed to immorality and boys being exposed to homosexuality, through the more protective 20th century legislation which nevertheless hung on to old ideas of immorality and criminality, until the Sexual Offences (Scotland) Act 2009 focused almost (but not quite) exclusively on protection from harm and from exploitation. The chapter then turns to the crime of child cruelty or neglect from its earliest manifestation in the common law to its statutory formulation in Prevention of Cruelty to, and Protection of, Children Act 1889, which, re-enacted in 1937, took on a form that, for all intents and purposes, remains to this day. The last part of the chapter explores the legal basis for the power of corporal punishment – the defence previously available to parents, teachers and some others to a charge of assault of a child, known as “reasonable” chastisement. Its gradual abolition from the 1980s to 2019 is described.

3. Mens Rea: The Mental Element

2018 ◽  
Author(s):  
Jonathan Herring
Keyword(s):  
Criminal Law ◽  
Mental State ◽  
Mens Rea ◽  
Criminal Offence ◽  
Legal Term ◽  
Mental Element

Mens rea is the legal term used to describe the element of a criminal offence that relates to the defendant’s mental state. Different crimes have different mentes reae: some require intention, others recklessness, negligence, or knowledge. Some crimes do not require proof of any mental state of the defendant. This chapter considers the following concepts that are used throughout criminal law: (a) intention, (b) recklessness, (c) negligence, and (d) knowledge.

Part 1 Introduction, 3 Parameters of Criminal Responsibility

2012 ◽  
Author(s):  
van Sliedregt Elies
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Civil Law ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
Municipal Law ◽  
Material Element ◽  
Mental Element ◽  
Superior Responsibility

While the Nuremberg and Tokyo judgments and the subsequent proceedings are important sources of law and indispensable in developing the concept of individual responsibility in international criminal law, they do not provide us with a system of criminal law and doctrine. For that, we need to turn to municipal law. National criminal law and doctrine not only serves as guidance and inspiration in developing a theory of individual responsibility in international criminal law, it also assists in understanding and describing international criminal law. This chapter begins with a brief discussion of terminology which has proved useful at the tribunals to analyze individual and superior responsibility. It then describes the mental element and material element in civil law systems.

scholarly journals THE ELUSIVE OBJECT OF PUNISHMENT

Legal Theory ◽  
2019 ◽  
Vol 25 (2) ◽  
pp. 105-131 ◽  
Author(s):  
Gabriel S. Mendlow
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Child Pornography ◽  
Hate Crimes ◽  
Mens Rea ◽  
Statutory Rape

AbstractAll observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; and about the proper ambit of the criminal law. Each of these disputes may hinge on deeper disagreements about the identity of the wrong a statute aims to punish, and these deeper disagreements can be surprisingly hard to resolve, fueled as they are by the complex inner structure of our penal laws and the discretionary mechanisms of their administration.

scholarly journals “Precocious Girls”: Age of Consent, Class and Family in Late Nineteenth-Century England

2020 ◽  
Vol 38 (1) ◽  
pp. 241-266
Author(s):  
Laura Lammasniemi
Keyword(s):  
Working Class ◽  
Criminal Law ◽  
Late Nineteenth Century ◽  
Girl Child ◽  
Child Prostitution ◽  
Age Of Consent ◽  
Victorian Period ◽  
Social Concerns ◽  
Key Concepts ◽  
Late Nineteenth

A fixed legal age of consent is used to determine when a person has the capacity to consent to sex yet in the late Victorian period the idea became a vehicle through which to address varied social concerns, from child prostitution and child sexual abuse to chastity and marriageability of working-class girls. This article argues that the Criminal Law Amendment Act (CLAA) 1885, the Act that raised the age of consent from thirteen to sixteen, and its application were driven by constructions of gender in conjunction with those of social class and working class family. The article firstly argues that CLAA 1885 and related campaigns reinforced class boundaries, and largely framed the working class family as absent, thereby, requiring the law to step in as a surrogate parent to protect the girl child. Secondly, the paper focuses on narratives emerging from the archives and argues that while narratives of capacity and protection in particular were key concepts behind reforms, the courts showed limited understanding of these terms. Instead, the courts focused on notions resistance, consent, and untrustworthiness of the victim, even when these concepts were not relevant to the proceedings due to victims' young age.

scholarly journals I. Conflicts of Criminal Jurisdiction

2007 ◽  
Vol 56 (3) ◽  
pp. 659-666
Author(s):  
Colin Warbrick ◽  
Kate Brookson-Morris
Keyword(s):  
Social Networks ◽  
Criminal Law ◽  
Legal System ◽  
Financial Hardship ◽  
Criminal Proceedings ◽  
Criminal Jurisdiction ◽  
A Charge

The expansion of claims of extended territorial and extraterritorial criminal legislative jurisdiction and the increasing facility with which States are able to obtain custody over defendants by way of more effective extradition arrangements is leading to a new problem in transnational criminal law. The result of these developments is that more than one State may have legitimate jurisdiction to legislate for the same conduct and the courts of more than one State may be entitled to exercise judicial jurisdiction over those persons charged with crimes arising from that conduct. For prosecutors, the problem may present itself as one of prosecutorial efficiency—how may the case be proceeded with expeditiously, in particular, in which jurisdiction is a conviction most likely to be secured? Considerations such as the availability of witnesses or the admissibility of evidence may influence the prospects of conviction and prospective punishments may be a factor when deciding in which system prosecutors prefer the case to go ahead. Defendants have different perspectives. In many cases involving extradition to face a charge based on an exercise of extended jurisdiction, the defendant will be removed from the place where he lives and works to another State. There may be adverse consequences for him compared to facing a trial where he is usually located. Criminal proceedings abroad will be in an unfamiliar legal system; bail may be harder to obtain because of a perceived greater danger of flight; the impossibility to continue working during the period in which the trial is being prepared may impose financial hardship; defendants will be removed from their families and social networks for considerable periods.

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