Assault in Criminal Law - Research Paper Example

Research paper on Assault in Criminal Law Introduction A crime is a criminal act which is made up of Actus Reus and a mental that is mens rea. Actus Reus is fundamentally anything which does not have the element of mens rea in it. Thus if a crime has to be judged as a criminal act then it must have an act committed with mens rea element present (Damien Falgoust, 1996). Actus Reus is an act which has to be voluntary which means the act must not be committed when the actor is unconscious or through automatism. For instance in State v. Mercer – Mercer shot his wife in an unconscious state and so he was found not guilty as the act was not voluntary. In the same way if the act is reflexive or even convulsive acts then they are not criminal liability (Damien Falgoust, 1996). Crimes against a person can be of two types and they are Assault and Battery. Assault is an effort to commit battery, or the intention to form anxiety in the victim thereby inflicting bodily harm. Battery is the application of force which results in injury to a person or is an offensive touch (Damien Falgoust, 1996). Assault is a deliberate effort or risk to impose injury upon a person, paired coupled with an evident, present power to induce the harm, which produces a sensible fear of bodily harm or unpleasant contact to another. Assault need not arise by actually touching or even harm the victim physically. Assault and battery are occasionally applied interchangeably. Actually battery is an unfair injurious or unpleasant touching of another. Battery also dissents from assault by not requiring the victim to be in fear of injury (http://lawdigest.uslegal.com retrieved December 3, 2009). Assault had actually developed in common law through usage, custom, and judicial decisions. It is not a legislative enactment. Present-day assault statutes strictly mirror the antique common-law explanation. An assault is actually a crime as well as a tort because of which an attacker may have to face both criminal and civil responsibility. A criminal assault will give rise to a fine, imprisonment, or even both and in a civil case the victim will be liable to monetary damages from the attacker (http://lawdigest.uslegal.com retrieved December 3, 2009). Specific Intent Assault to induce criminal law must be accompanied with a specific intent. For instance an intention to just scare another cannot be termed as an assault. The real test lies in the sense that the act induces an apprehension of fear in the mind of a reasonable person. The condition of the injured party is considered. For example if a child is threatened then it is sufficient to form an assault, but at the same time a threat made to an adult is not an assault. Courts have outlined specific intent as the prejudiced need or information that the illegal consequence will take place (People v. Owens, 131 Mich. App. 76, 345 N.W.2d 904 [1983]). In reality both intent and motive are confusing but they consist of distinct principles and are distinguished in the law. Motive is the reason that motivates a person to act or ignore to act whereas intent is only the state of mind with which the act is committed or omitted. Assault is of two types: Aggravated Simple Aggravated assault is unlawful attack on another to cause severe physical injury. It is normally termed as aggravated if the attack is through a weapon or any other means which might result in death or serious physical harm to the victim. Simple assault is just an attempt or may be a threat to cause less serious body injury without the use of a weapon. The offense of conspiracy takes place when two or more than two persons “combine to commit a crime.”1 A conspiracy is a specific intent crime having both an intention to consent or connive with a further intention to carry out the object crime or objective of the conspiracy.2 It is a double mental state. Justice Jackson in Krulewitch v. United States, states that conspiracy is “chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid.”3 To nurture a certainty for conspiracy to carry out a specific offense, the prosecution has to prove that the plotters meant to agree, with an intention to carry out the elements of the target offense.4 “Every person who attempts to commit any crime, but fails” is responsible of a crime.5 Such an illegal effort comprises of two elements: “a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.”6 Thus an attempt to murder must have a specific intention to murder7 linked to a direct but incompetent act towards commission8 of the murder. In a recent case of State v. Grunke, 752 N.W.2d 769 (Wis. 2008) it was decided that in criminal law the legislatures, and not courts, have the authority to define the forms of criminal forbiddances.9 An important term of this rule is the law of lenience in statutory creation. This principle requires the judges to determine textual uncertainty in criminal statutes in support of defendants.10 The law inclines to support “values of near -constitutional stature,” like fair notice, assured discretion, and non-delegation of the meaning of criminal behavior.11 Recently, in State v. Grunke,12 the Wisconsin Supreme Court held that “the state’s sexual assault statute13 unambiguously criminalized sexual intercourse with a corpse even when the defendant did not cause the death of the victim”.14 This relevance of a criminal statute to which the legislature believably did not mean to outlaw is in stress with the non-delegation rule inherent in the principle of lenity (Harvard Law Review, 2009, Vol. 122:1780-1787). The facts of the above case is that on September 2, 2002, Nicholas Grunke, Alexander Grunke, and their friend Dustin Radke tried to dig up a female corpse at a local burial ground so that Nicholas could have sexual intercourse with the corpse.15 The Grunkes and Radke had brought with them digging equipments, a cover, and safeties to the burial ground. They started to dig out in the gravesite.16 The 3 men were able to remove the top of the corpse’s vault, but ran away when they were not able to open the vault and also when they heard the sound of another car entering the cemetery.17 A police officer came to the cemetery and after seeing the supplies of Alexander Grunke placed him in custody (Harvard Law Review, 2009, Vol. 122:1780-1787). Punishment A defendant who commits a civil assault is responsible for damages. The amount which has to be awarded to the victim will be decided by a jury. A common nominal damage which actually aims to cover the injury of the victim is compensatory damages. This is a small sum of money for the injury inflicted on the victim even though the injury is substantial. In some cases punitive damages are allowed by the courts with the intention to punish the defendant for his wrongful action (http://law.jrank.org/pages/4481/Assault-Punishment.html#ixzz0YdRdrFPg (retrieved December 3, 2009). The reprimand for an assault which is criminal in nature is a fine, imprisonment, or both. If the assault is aggravated then penalties are more severe. In aggravated assault, the factors which determine the sentence to be imposed are; brutality of the crime, the scope of aggression and harm, and the criminal intention of the defendant http://law.jrank.org/pages/4481/Assault-Punishment.html#ixzz0YdRdrFPg (retrieved December 3, 2009). Assault in family The definition of violence in a family as defined by Gelles and Straus (1979) is “an act carried out with the intention or perceived intention of causing physical pain or injury to another person” . More than half of American couples undergo one or more than one occurrences of assault between the partners through the course of a marriage (Straus et al., 1980: 5-36). Actually no importance is committed to this datum because there are implied norms bearing a certain amount of force in families (Straus, 1976). The significance of this datum for criminology also inclines to be belittled as most of the happenings are simple assaults, like shoving, slapping, or hurling something at a spouse and thus it is not aggravated assaults. Additionally, in any single year majority of the couples do not undergo violence at any level. The 1985 assault rate was 16% and so the argument is that this rate indicates a relatively irrelevant occurrence of assault (Scanzoni, 1978). But such minor incident actually as time passes by grows into a severe assaultive behavior. More than a third of these incidents entail brutal assaults like kicking, punching, and assaults with items or weapons (Straus and Gelles, 1988). Out of 54 million living together couples in the United States in 1984, an anticipated 8.7 million assault victims could be found (Straus and Gelles, 1988). In reality taking everything together it looks that violence between spouses are actually transmitted from generation to generation (Hotaling and Sugarman, 1986; Straus, 1983) and also is associated to assaults and other offense beyond the family (Hotaling et al., 1989). Another key issue is severe violence by the wife. It is normally accepted that harsh aggression by the wife does not generally specify a high risk of injury (Breines and Gordon, 1983; Straus and Gelles, 1986: p 410). But the reality is that researchers have not yet been able to determine whether aggression by the wife puts her at danger of harm because it increments the chance of aggression by the husband. To the level that aggression by the wife is considered to influence the violence of a husband, it is frequently accepted to prevent the continuance of wife assault (Pagelow, 1984). Bowker (1983) states that some previously battered wives consider that a violent defense was successful in stopping the assaults. He at the same time reports that other formerly battered wives assumed that such strategies had only worsened their exploitation. If any domestic aggression has to be termed as violence then it can be done so with reference to the particular circumstances, and the laws of the state in which such act or acts has taken place. Over and over again domestic violence is a crime which can be subject to criminal punishment and also a civil wrong which can be subject to constraint upon personal behavior and damages in the form of money may be inflicted (http://criminal-law.Freeadvice .com/violent_crimes/domestic _punishment03.htm retrieved December 3, 2009). It is a recurrent guide in domestic violence cases where the victim is abused, to call the police, inflict charges, then settle with the abuser, and attempt to have the charges dropped, so that the complete pattern is repeated. Just because of this in some local residential areas and states, domestic violence has been made liable to be prosecuted as a crime by the city and district lawyers, even if no charges are being brought by the ill-treated person. This will be so even if there is no assistance from him/her. Even if no complaint is made by the victim in these localities, a criminal case can be taken up against the person inflicting harm. Domestic violence is looked at as a crime against the society and the "state" so that prosecution of all harms against the community takes place (http://criminal-law.freeadvice.com/violent_crimes/domestic _punishment03.htm retrieved December 3, 2009). Conclusion In spite of the well-established notions about the continuity of wife assault, the accessible proof proposes that most wife assault sinks. Sherman and Berk (1984) states that men who had been complaint to the police for inflicting physical attack on wife; amongst those men who obtained the least treatment by police 37% battered their wives again within a span of 6 months which means 63% did not. This low backsliding rate keeps out many cases that were not obtainable for follow-up and does not consider recidivism after 6 months. Furthermore, the decreased reverting rate may the early intervention by police. Dutton’s (1988) follow-up of detained wife assaulters depicted that 60% of the untreated men did not create new police accounts within a span of 3 years of their arrest. Actually the low rate of backsliding is deflated by the exception of assaults that did not come to the notice of police, and the real reverting rate may have been decreased due to the initial arrest. Finally, Fagan et al, (1984; summarized in Fagan, 1989), discovered that 55% of men with whom police used the least intervention reported no following assaults (Carmody and Williams, 1987). Reference 1. Bowker, Lee H.1983 Beating Wife-Beating. Lexington, Mass.: Lexington Books. 2. Breines, Wini and Linda Gordon, 1983 Review essay: The new scholarship on family violence. Signs: Journal of Women in Culture and Society 8: 490-531. 3. Carmody, Dianne Cyr and Kirk R. Williams 1987 Wife assault and perceptions of sanctions. Violence and Victims 2: 25-38. 4. Damien Falgoust, 1996, Criminal Law outline, University of Texas School of Law 5. Dutton, Donald G. 1988 The Domestic Assault of Women: Psychological and Criminal Justice Perspectives. Boston: Allyn and Bacon. 6. Fagan, Jeffrey, Elizabeth Friedman, Sandra Wexler, and Virginia S. Lewis, 1984 National Family Violence Evaluation: Final Report. Vol. I, Analytic Findings. San Francisco: URSA Institute. 7. Harvard Law Review, 2009, Vol. 122:1780-1787 8. Hotaling, Gerald T. and David B. Sugarman, 1986 An analysis of risk markers in husband to wife violence: The current state of knowledge. Violence and Victims 1: 101-124. 9. Hotaling, Gerald T. and Murray A. Straus with Alan I. Lincoln, 1989 Violence in the family and violence and other crime outside the family. In Lloyd Ohlin and Michael Tonry (eds.), Crime and Justice: An Annual Review of Crime and Justice. Vol. 11. Chicago: University of Chicago, Press. 10. http://lawdigest.uslegal.com/tort-and-personal-injury-actions/assault/7309/#Background retrieved December 3, 2009. 11. http://law.jrank.org/pages/4481/Assault-Punishment.html#ixzz0YdRdrFPg (retrieved December 3, 2009). 12. http://criminal-law.freeadvice.com/violent_crimes/domestic_punishment03.htm retrieved December 3, 2009 10. Pagelow, Mildred D. 1981 Woman-Battering: Victims and Their Experiences. Beverly Hills, Calif.: Sage. 1984 Family Violence. New York: Praeger 11. Scanzoni, John 1978 Sex Roles, Women’s Work, and Marital Conflict. Lexington, Mass.: Lexington Books. 12. Sherman, Lawrence and Richard A. Berk, 1984 The specific deterrent effects of arrest for domestic assault. American Sociological Review 49: 261-272. 13.Straus, Murray A. 1976 Sexual inequality, cultural norms, and wife-beating. Victimology 1: 54-76. 14. Straus, Murray A., Richard J. Gelles, and Suzanne K. Steinmetz, 1980 Behind Closed Doors: Violence in the American Family. New York: Doubleday/Anchor. 15. Straus, Murray A. 1983 Ordinary violence versus child abuse and wife beating: What do they have in common? In David Finkelhor, Gerald T. Hotaling, Richard J. Gelles, and Murray A. Straus (eds.), The Dark Side of Families: Current Family Violence Research. Newbury Park, Calif.: Sage. 16. Straus, Murray A. and Richard J. Gelles, 1988 How violent are American families? Estimates from the national family violence resurvey and other studies. In Gerald T. Hotaling et al. (eds.), Family Abuse and its Consequences: New Directions in Research. Newbury Park, Calif.: Sage. 17. Straus, Murray A. and Richard J. Gelles 1986 Societal change and change in family violence from 1975 to 1985 as revealed by two national surveys. Journal of Marriage and the Family 48: 465479. Read More