32 Section 3.5: Substantive Offenses
Once the essential elements of crimes are understood, it is a relatively easy matter to consider the elements that must be proven in court to obtain a conviction. Recall that each element of the crime must be proven beyond a reasonable doubt.
Murder
At common law, murder was defined as killing another human being with malice aforethought. Malice aforethought is a legal term of art that goes beyond the obvious meaning of the two terms. The term malice means the intention to do evil. It is sometimes defined as “ill will.” Aforethought means thought about or planned beforehand. If we put the two together, it suggests that the plan to cause harm was premeditated. This “murder with intent to kill” is one legal way to look at it, but at common law, malice aforethought could be satisfied in other ways. An alternative was a murder committed when the intent was only to cause grievous bodily harm. In addition, a person was guilty of murder if someone else was killed in the while committing a felony. This is known as the felony murder rule.
Most murders require the specific intent to harm the person that dies. When someone does something that kills somebody but there was no specific target, then there is a depraved heart murder. A classic example of this is firing a rifle into a passenger train car. No specific victim was intended, but it was highly likely that someone would die.
While there are some differences in these common law classifications of murder and the modern statutory classifications, their underlying prohibitions are the same. The Model Penal Code, for example, prohibits purposefully or knowingly killing another human being. This functions in a nearly identical way to the common law rule against intentional murder. The Model Penal Code punishes killings that come from “extreme recklessness” in a way that mimics the depraved heart murder of common law. The Model Penal Code creates a rebuttable presumption that a killing committed during the commission of certain felonies shows extreme recklessness. This provision mimics the felony murder rule in function.
Assault and Battery
In everyday language, assault and battery are used interchangeably. In many jurisdictions, however, they are two distinct offenses. An assault is an act that creates an imminent fear that the victim will be harmed, but no actual harm occurs. In other words, an assault is a threat of force. A battery is a physical act that results in some actual harm to the victim. Some jurisdictions include any offensive touching in the definition of battery. Many jurisdictions define an unwanted touching of the sexual organs of another person as a sexual battery. Note that in most cases, the assault is a lesser-included offense of the battery. That means that in jurisdictions that have both assault and battery statutes, both offenses cannot be charged against the same person for the same act.
Rape
Rape is a crime that has evolved dramatically over time