3.7. Substantive Law: Defining Crimes, Inchoate Liability, and Accomplice Liabil
3.7. Substantive Law: Defining Crimes, Inchoate Liability, and Accomplice Liability
Lore Rutz-Burri and Kate McLean
Substantive Law
Substantive law includes laws that define crime, meaning laws that tell us what elements the government needs to prove in order to establish that a crime has been committed. Substantive law also includes the definitions of inchoate crimes (“incomplete” crimes, including conspiracy, solicitation, and attempts), and sets forth accomplice liability (when a person will be held responsible for working in concert with others to complete a crime). Substantive law also identifies the defenses that a person may raise when they are charged with a crime, and indicates the appropriate penalties and sentences for crimes.
Today, the great majority of substantive law has been codified and is found in states’ particular criminal codes or in the federal code. Generally, criminal codes are separated into two parts: a general part and a special part. The general part typically defines words and phrases that will be used throughout the code (for example, the word “intentionally”), indicates all possible defenses and provides the general scheme of punishments. The special part of the code then defines each specific crime, setting forth the elements of the crime (components of the crime) the government must prove beyond a reasonable doubt in order to convict a defendant of a crime.
Elements of the crime
With the exception of strict liability crimes and vicarious liability crime (discussed below), the government will always have to prove that the defendant committed some criminal act – the actus reus element – and that he or she acted with criminal intent, the mens rea element. When proving a crime of conduct, the state must prove that the defendant’s conduct met the specific actus reus requirement. This means that the government must prove that the defendant’s behavior was either a voluntary act (i.e., not the product of a reflex or done while asleep, or under hypnosis), a voluntary omission to act (meaning that he or she failed to act) when there was a legal duty to do so, or that they possessed some item that they should not have. To meet the mens rea element, the state must prove that the defendant’s act was triggered by criminal intent. (This is NOT the same thing as motive.) The elements of a specific crimes may also include what is referred to as attendant circumstances. Attendant circumstances are additional facts set out in the substantive law’s definition that the state must prove to establish a crime (for example, that the place burglarized was a dwelling, or that the property value is at least a certain amount).
Occasionally, a statute will not specify the mens rea element. When this occurs, courts need to decide whether the legislature has intended to create a strict liability crime or has just been sloppy in drafting the law. Strict liability crimes are ones where the government does not have to prove criminal intent. Courts