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									Introduction to the US-American Criminal
              Justice System
           Dr. Christoph Burchard LLM (NYU)




              Strict Liability
Introduction to the US Criminal Justice System
Dr. Christoph Burchard, LL.M


                                                 (CNN) -- The announced
                                                 pregnancy of Jamie Lynn
                                                 Spears -- the 16-year-old
                                                 children's television star and
                                                 younger sister of beleaguered
                                                 pop star Britney Spears -- is
                                                 casting new light on how
                                                 states deal with the thorny
                                                 issue of consensual sex
                                                 among teens.

                                                 Jamie Lynn Spears, shown in
                                                 September, stars in the popular
                                                 Nickelodeon series "Zoey 101.
                                                 „Spears, the star of
                                                 Nickelodeon's "Zoey 101," told
                                                 OK! Magazine that she's
                                                 pregnant and that the father is
                                                 her 18-year-old boyfriend.
Introduction to the US Criminal Justice System
Dr. Christoph Burchard, LL.M




   You are the defense lawyer of Jamie Lynn Spears 18 year old
       boyfriend, who faces charges under §80.1. (Louisiana Criminal
       Code).

   He tells you that he did not know generally that Jamie Lynn was
      only 15 years of age when they had intercourse. What is more,
      he tells you that he most certainly did not reflect on any age
      difference when „things started heating up“.

   1) Is §80.1. applicable nonetheless?
  Introduction to the US Criminal Justice System
  Dr. Christoph Burchard, LL.M




§80.1. (Louisiana Criminal Code) Misdemeanor carnal knowledge of a juvenile
A. Misdemeanor carnal knowledge of a juvenile is committed when a person who is
seventeen years of age or older but less than nineteen years of age has sexual
intercourse, with consent, with a person who is fifteen years of age or older but less
than seventeen years of age, when the victim is not the spouse of the offender, and
when the difference between the age of the victim and age of the offender is greater
than two years.
B. As used in this Section, "sexual intercourse" means anal, oral, or vaginal sexual
intercourse.
C. Lack of knowledge of the juvenile's age shall not be a defense. Emission is not
necessary, and penetration, however slight, is sufficient to complete the crime.
D. Whoever commits the crime of misdemeanor carnal knowledge of a juvenile shall be
fined not more than one thousand dollars, or imprisoned for not more than six months,
or both.
…
F. The offender shall not be subject to any of the provisions of law which are applicable
to sex offenders, including but not limited to the provisions which require registration of
the offender and notice to the neighbors of the offender.
Introduction to the US Criminal Justice System
Dr. Christoph Burchard, LL.M




   You are the defense lawyer of Jamie Lynn Spears 18 year old
       boyfriend, who faces charges under §80.1. (Louisiana Criminal
       Code).

   He tells you that he did not generally that Jamie Lynn was only 15
      years of age when they had intercourse. What is more, he tells
      you that he most certainly did not reflect on any age difference
      when „things started heating up“.

   1) Is §80.1. applicable nonetheless?


   Strict Liability:
   Lack of knowledge of the juvenile's age shall not be a defense.
Introduction to the US Criminal Justice System
Dr. Christoph Burchard, LL.M




   You are the defense lawyer of Jamie Lynn Spears 18 year old
       boyfriend, who faces charges under §80.1. (Louisiana Criminal
       Code).

   He tells you that he did not generally that Jamie Lynn was only 15
      years of age when they had intercourse. What is more, he tells
      you that he most certainly did not reflect on any age difference
      when „things started heating up“.

   1) Is §80.1. applicable nonetheless?


   What if the boyfriend took every precaution to get to know Jamie
     Lynn’s age? Consider the following case.
    Introduction to the US Criminal Justice System
    Dr. Christoph Burchard, LL.M



United States v. United States D.C.D. Cal., 858 F.2d 534 (9th Cir. 1988)

Facts: Defendant hired a 16-year-old girl (Traci Lords) to appear in a sexually
   explicit film produced by two other defendants. Defendants were charged
   with violating 18 U.S.C.S. § 2251(a) (1986), which barred depicting a minor
   engaged in sexually explicit conduct. At defendants' trial, the government
   moved in limine to preclude defendants from presenting evidence that they
   were unaware of the girl's age. The district court denied the motion. The
   government petitioned for a writ of mandamus. The court issued the writ of
   mandamus and directed the district court to allow a narrow defense. Under
   the statute, an accused's awareness of a minor's age was not an element
   of the offense. Thus, knowledge of a minor's age was not necessary for
   conviction.
   Introduction to the US Criminal Justice System
   Dr. Christoph Burchard, LL.M


United States v. United States D.C.D. Cal., 858 F.2d 534 (9th Cir. 1988)

Problem: Defendants contend that they were the victims of such deceit and
   misapprehension, proffering a catalogue of materials with which they expect to
   prove their contention if allowed to address the issue at trial.
   First, they intend to present photographic and testimonial evidence that Lords
   appeared physically mature when she made the film. ...
   Second, they propose to show that Lords and those responsible for her
   employment used Californian photographic identification, other official documents,
   release forms and statements of her agent and others to misrepresent her age.
   Third, defendants propose to introduce evidence that Lords was widely understood
   to be an adult: her prior appearances in the mass-market men's magazines
   Penthouse and Cavalier which, according to industry custom and perception,
   reliably investigate the age of their models; her prior and subsequent appearances
   in other X-rated films; the nationwide distribution, with apparent impunity, of
   materials depicting her in sexually explicit activities; and the fact that, despite
   Lords' popularity and renown, no one learned or suggested that she was a minor
   until two years after Those Young Girls.
Introduction to the US Criminal Justice System
Dr. Christoph Burchard, LL.M




   You are the defense lawyer of Jamie Lynn Spears 18 year old
       boyfriend, who faces charges under §80.1. (Louisiana Criminal
       Code).

   He tells you that he did not generally that Jamie Lynn was only 15
      years of age when they had intercourse. What is more, he tells
      you that he most certainly did not reflect on any age difference
      when „things started heating up“.

   1) Is §80.1. applicable nonetheless?
   2) Is there any “functional equivalent” to strict liability in German
      Criminal Law?
   3) Is strict liablity “fair”, “reasonable”, “purposeful”, “justifiable” etc.?
      Draw on the purposes of criminal law (including the harm principle)
      and the justifications of punishment – as we discussed them two
      sessions ago. What is more, consider the following case.
Introduction to the US Criminal Justice System
Dr. Christoph Burchard, LL.M




   Functional Equivalent in German Criminal Law:

   “Objektive Bedingungen der Strafbarkeit”
       • vis-à-vis circumstances: § 186 StGB + § 113 StGB (disputed)
         •   vis-à-vis results: §§ 231, 323a StGB

   “Sachgedankliches Mitbewusstsein” & “ständig verfübares Begleitwissen”
Introduction to the US Criminal Justice System
Dr. Christoph Burchard, LL.M




   You are the defense lawyer of Jamie Lynn Spears 18 year old
       boyfriend, who faces charges under §80.1. (Louisiana Criminal
       Code).

   He tells you that he did not generally that Jamie Lynn was only 15
      years of age when they had intercourse. What is more, he tells
      you that he most certainly did not reflect on any age difference
      when „things started heating up“.

   1) Is §80.1. applicable nonetheless?
   2) Is there any “functional equivalent” to strict liability in German
      Criminal Law?
   3) Is strict liablity “fair”, “reasonable”, “purposeful”, “justifiable”
      etc.? Draw on the purposes of criminal law (including the harm
      principle) and the justifications of punishment. What is more,
      consider the following case reasoning.
   Introduction to the US Criminal Justice System
   Dr. Christoph Burchard, LL.M




People v. Dillard, 154 Cal. App. 3d 261.

Facts: Appellant was convicted of the misdemeanor offense of carrying a
   loaded firearm on his person in a public place, in violation of Cal. Penal
   Code § 12031(a).

   [T]he court ruled inadmissible as irrelevant evidence tending to show that
   appellant was unaware that the rifle was loaded. The court rejected
   defense counsel's offer of proof, outside the presence of the jury, that
   appellant's stepfather had taken the rifle hunting, that appellant had
   loaned it to him for this purpose on several prior occasions, that his
   stepfather had never before returned the rifle to appellant loaded, and that
   on the day of the offense appellant had acted in reliance on his
   stepfather's past conduct. Over defense objection, the court instructed the
   jury that knowledge that the weapon is loaded is not an element of the
   offense
   Introduction to the US Criminal Justice System
   Dr. Christoph Burchard, LL.M




People v. Dillard, 154 Cal. App. 3d 261. Continued

Held: The carrying of a loaded weapon in a public place, we believe, falls
   within the class of cases involving "'acts that are so destructive of the
   social order, or where the ability of the state to establish the element of
   criminal intent would be so extremely difficult if not impossible of proof,
   that in the interest of justice the legislature has provided that the doing of
   the act constitutes a crime, regardless of knowledge or criminal intent on
   the part of the defendant. [para. ] In these cases it is the duty of the
   defendant to know what the facts are that involved or resulted from his
   acts or conduct.'" ( In re Marley (1946) 29 Cal.2d 525, 529 [175 P.2d 832].)
   Section 12031, subdivision (a), is, in our view, a quintessential public
   welfare statute which embraces a legislative judgment that in the interest
   of the larger good, the burden of acting at hazard is placed upon a person
   who, albeit innocent of criminal intent, is in a position to avert the public
   danger.
   Introduction to the US Criminal Justice System
   Dr. Christoph Burchard, LL.M




People v. Dillard, 154 Cal. App. 3d 261. Continued

Held: The potential danger to the public safety from the prohibited conduct is
   dramatically illustrated by the facts of the instant case. Officer Torres
   testified that the 30.30 Winchester is a "very high-powered rifle" that is
   primarily used for bear and deer hunting. ... The weapon had no safety
   latch and the chances of its going off if it were dropped from appellant's
   bicycle were about 75 percent. Without question, society has a legitimate
   interest in placing on the possessor of such a weapon the burden of
   ascertaining at his peril that it is unloaded before he ventures forth with it
   in public. Moreover, one who carries such a weapon in ignorance of the
   fact that it is loaded could in some circumstances pose a greater threat to
   the public safety than one who wilfully violates the law by carrying the
   weapon with knowledge that it is loaded. The latter, at least, presumably
   would handle the weapon with the greater care its potential danger
   dictates, whereas the former would be unaware of the need for caution.
BGHSt 1, 124 (126) zur Vereinbarkeit von § 323a StGB (nF) mit dem
“Schuldprinzip”

Der Wortlaut des Gesetzes selbst läßt keinen Zweifel zu, daß schon die schuldhafte
Unmäßigkeit zum Gegenstand eines strafrechtlichen Vorwurfs erhoben werden sollte,
und zwar wegen der Gefährdung der Allgemeinheit, die aus der toxisch bedingten
Bewußtseinsstörung erwachsen kann. Die strafrechtliche Verwirklichung dieses
Vorwurfs hängt allerdings von der vom Täter selbst zu erfüllenden weiteren Bedingung
ab, daß dieser im Zustand der Bewußtseinsstörung eine mit Strafe bedrohte Handlung
begeht (Urt. des 2. StS v. 3. 4. 1951 - StR 82/51); diese sieht das Gesetz als ein
zwingendes Beweisanzeichen für die Gemeingefährlichkeit des Berauschten an. Als
ein Gefährdungsdelikt eigener Art hält sich die Vorschrift auch im Rahmen des
Schuldprinzips. Der Schuldvorwurf beschränkt sich allerdings auf die Verwerfbarkeit
des Rausches; denn es ist eine allgemeine Lebenserfahrung, daß übermäßiger
Alkoholgenuß den Menschen enthemmen und ihn zu Handlungen befähigen kann, die
ihm persönlichkeitsfremd sind. Da die Wirkung geistiger Getränke auf die jeweilige
körperliche und seelische Verfassung des Zechers nicht voraus berechnet werden
kann, geht das Gesetz davon aus, daß sich jeder, der sich vorsätzlich oder fahrlässig
der Wirkung alkoholischer Getränke aussetzt, der in ihnen schlummernden Gefahr von
Ausschreitungen hätte bewußt werden können; entsprechendes gilt für berauschende
Mittel anderer Art. Die kriminalistische Erfahrung, daß die Bewußtseinsstörung den
Täter außerstande setzt, den Umfang des durch sein Verhalten drohenden Schadens
auf bestimmte Personen oder Sachen zu beschränken, rechtfertigt die Einreihung der
Vorschrift in die „gemeingefährlichen Verbrechen und Vergehen“; diese Systematik
nötigt nicht, ein ungeschriebenes Tatbestandsmerkmal der „Gemeingefährlichkeit“ und
demgemäß nach § [16] StGB das Wissen des Täters davon zu verlangen.
Introduction to the US Criminal Justice System
Dr. Christoph Burchard, LL.M




   You are the defense lawyer of Jamie Lynn Spears 18 year old
       boyfriend, who faces charges under §80.1. (Louisiana Criminal
       Code).

   He tells you that he did not generally that Jamie Lynn was only 15
      years of age when they had intercourse. What is more, he tells
      you that he most certainly did not reflect on any age difference
      when „things started heating up“.

   1) Is §80.1. applicable nonetheless?
   2) Is there any “functional equivalent” to strict liability in German
      Criminal Law?
   3) Is strict liablity “fair”, “reasonable”, “purposeful”, “justifiable”
      etc.? Draw on the purposes of criminal law (including the harm
      principle) and the justifications of punishment – as we
      discussed them two sessions ago. What is more, consider the
      following case.
Introduction to the US Criminal Justice System
Dr. Christoph Burchard, LL.M




   Formal vs. Substantive Strict Liability

       Imagine that a legislature considers adopting a strict liability statute
       that punished any person who causes a forest fire, with or without
       fault. Instead, the legislature actually enacts a law prohibiting any
       person from knowingly carrying a match in or near a forest, with a
       penalty of five years imprisonment if that conduct causes a forest
       fire. Does such a law cure the retributive defects of strict liability, by
       adding a mens rea requirement?
                                       Simmons, J. Crim. L. & Criminology 87 (1997) 1085

								
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