Under the common law (law originating from custom and court decisions rather than statutes), murder was an intentional killing that was:
Malice aforethought doesn't mean that a killer has to have acted out of spite or hate. It exists if a defendant intends to kill someone without legal justification or excuse. In addition, in most states, malice aforethought isn't limited to intentional killings. It can also exist if the killer:
In today’s society, murder is defined by statute rather than common law. Though today's statutes derive from common law, one has to look to these statutes for important distinctions—like the difference between first- and second-degree murder.
Even within the universe of those who kill with malice aforethought, the law regards some as more dangerous and morally blameworthy than others. First-degree murder applies to those defendants. Killings involving malice that don't amount to first-degree murder tend to constitute second-degree murder.
The rules vary somewhat from state to state as to what circumstances make an intentional killing first-degree murder, but the following circumstances commonly do so:
The killing is deliberate and premeditated. In other words, the killer has formed the intent to kill and has had time, however brief, to reflect on the matter. An obvious example of premeditation is a wife going to the store, buying a lethal dose of rat poison, and putting it in her husband's tea.
The killing occurs during a dangerous felony. This crime is often known as "felony murder." Someone can be guilty of murder if a death occurs during a dangerous felony, even if the person is not the killer. In most states, the death must be a foreseeable result of the initial felony. For example, assume that Aaron commits arson by setting a house on fire. Chris, a firefighter, dies while attempting to douse the burning building. Here, Aaron would be guilty of felony murder because a death occurred in the course of a dangerous felony, and the death was a foreseeable result of the defendant’s actions. (Aaron might also be guilty of old-fashioned murder on the theory that he acted with malice aforethought.)
In most states, a defendant who didn't directly cause the death of an accomplice isn’t automatically criminally liable for that death. Suppose, for example, that Bill and Janice burglarize a house. As they attempt to flee with the loot, a police officer shoots and kills Janice. Bill might not be guilty of first-degree murder, even though a death occurred in the course of a dangerous felony. (See Com. v. Redline, 391 Pa. 486 (1958).)
The killer uses an explosive device, such as a bomb. In California, for example, the statute defining first-degree murder specifies several ways in which the crime can occur. In part, it states, “All murder which is perpetrated using a destructive device or explosive … or by any other kind of willful, deliberate, and premeditated killing … is murder of the first degree.” (Cal. Penal Code § 189 (2021).)
Many states have mandatory minimum sentences for murder. The mandatory minimum for first-degree murder is almost always higher than that for second-degree murder. Defendants convicted of first-degree murder can also be eligible for the death penalty. Many states and the federal government still have the death penalty. In those that do not, the maximum penalty is life in prison without the possibility of parole (LWOP). Defendants convicted of second-degree murder are often sentenced to a term of years rather than life in prison and are often eligible for parole.
]]>This article will review criminal laws that prohibit and penalize incest under state law.
Incest refers to sexual and marital relations between closely related family members. For the most part, state incest laws prohibit marriage and sexual intercourse between close blood relations. Many states also include step, foster, and adoptive relations. In some states, even unconsummated marriage between individuals related to a certain degree will be considered incest.
For the purposes of incest laws, "family" can mean several things: blood relations (whole or half), family by adoption or marriage (including stepfamily members), foster families, and sometimes even "family-like" situations (such as a parent and child who lives with the parent's significant other).
Nearly all states prohibit sexual intercourse between close blood relations—parents and children, siblings, grandparents and grandchildren, and aunts or uncles and their nieces or nephews. Most incest laws also pull closely-related cousins within their scope. Typically, the more distant the relation, the less likely that it will be considered a prohibited relationship for purposes of incest law.
Some states' laws list the specific family relationships (like siblings) that are prohibited. Others might indicate prohibited relationships by degree, such as any blood or marital relation closer than the third degree. Quite a few states tie their criminal laws on incest to their marriage laws. So, if the law prohibits marriage between persons related by blood, criminal incest laws make sexual conduct in those relationships illegal, as well.
Another difference among state incest laws concerns the type of conduct prohibited. Some states’ incest laws prohibit only sexual intercourse or penetration, while others make any sexual conduct illegal in incestuous relationships. A state’s criminal laws might also make marriage between close relations a crime even if no sexual relations have occurred. Some states only criminalize incest committed by or between adults.
Society generally condemns incestuous relationships, finding them repulsive and unnatural. These relationships are often associated with child sex abuse, even though that’s not the behavior addressed by incest laws.
Some commonly cited reasons for making incest a crime include:
These perceptions are so strong that prevailing views on privacy rights and the right to marry are often overlooked in incest cases. Scientific research even suggests that concerns regarding genetic disorders don't necessarily support the rationale given for incest laws.
Criminal penalties for incest vary by state, but nearly all states provide felony penalties for incest. Felony penalties can range anywhere from a year or more and up to life in prison. There’s no standard penalty for incest—they range anywhere from a few years in prison to the possibility of decades behind bars.
Some states have one penalty for all incest crimes, but quite a few have varying degrees and penalties for incest. For instance, a number of states increase incest penalties when one of the parties is a child. This offense might be considered aggravated incest or incest with a minor. A few states place incest crimes involving a child under their sexual abuse or criminal sexual conduct laws. States may also have different penalties based on the type of conduct involved (sexual intercourse vs. contact), the relation between the parties (blood relation vs. adopted or by marriage), or a combination of any of these.
Because the penalties for incest are so wide ranging, we can’t list them all. Here are some examples based on the descriptions listed above.
One penalty. Florida and Oregon are examples of states that have one incest penalty. Florida makes incest a felony of the third degree, and Oregon classifies it as a class C felony.
Age of victim. Colorado and Georgia are two states that base their incest penalties primarily on the age of the victim. Stiffer penalties apply when in Colorado when one party is younger than 21 and in Georgia when one party is younger than 14.
Familial relation. Louisiana and Texas impose penalties based on how close the parties are in relation. For instance, Louisiana makes incest between parent and child a 15-year felony, whereas between an uncle and niece, it’s a 5-year felony.
Sexual conduct. In Michigan, the felony penalty depends, in part, on the conduct involved. Harsher penalties apply in cases of sexual penetration versus sexual contact.
(Colo. Rev. Stat. §§ 18-6-301, -302; Fla. Stat. § 826.04; Ga. Code § 16-6-22; La. Rev. Stat. § 14:89; Mich. Comp. Laws §§ 750.520B, .520C; Or. Rev. Stat. § 163.525; Tex. Penal Code § 25.02 (2024).)
When it comes to prosecuting incest crimes, several issues commonly arise, including who will be prosecuted, what the prosecution must prove, and what other charges might apply.
In some incest cases, both parties have committed a crime and the prosecutor can file criminal charges against both individuals. However, where one party is a minor and the other an adult, usually the adult will face criminal charges and the minor considered a victim. Several states only place criminal liability on adults who knowingly enter these relationships, not children.
To secure a conviction for incest, a prosecutor typically needs to prove that the defendant knew they were related by blood or marriage. If the parties had no idea they were second cousins, their marriage might be voided (assuming they married) under the law, but they couldn’t be found guilty of incest in most states.
Sometimes, a situation involving incest implicates other criminal laws. For example, depending on the circumstances, sexual conduct between the parties might constitute child abuse, rape, or statutory rape. Local prosecutors sometimes have discretion about whether to bring charges under the state incest law or other applicable laws.
A person facing criminal charges for incest could raise one of several defenses. One strategy is to poke holes in the prosecution’s cases. A defense attorney might argue that the prosecutor failed to prove the required degree of familial relation or that the defendant knew of the familial relationship. Another option would be to challenge the constitutionality of the statute as a violation of the right to marry or the right to privacy. Consent, though, is not a defense in incest cases. Incest laws target the relationship, not the act.
If you're facing an incest charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution's case against you, help develop any defenses that might apply to your case, and knows how local prosecutors and judges typically handle cases like yours.
]]>Although the exact definition of burglary may be a little different from state to state, the crime typically involves a culprit:
In the past, burglary laws required the government to prove that a defendant forced open a door, window, or some other part of a building to get inside. In some states, the law described it as "breaking and entering."
Entering. Today, though, going into a building through an open window or an unlocked door is usually enough for a burglary conviction (even in those states that have kept the outdated terminology of "breaking and entering"). Only the smallest amount of force is necessary to constitute an entry. And even a partial entry can constitute burglary. For example, assume that the police arrest a suspect who is reaching an arm through an open window to steal something. If the other requirements are met, the suspect can be convicted of burglary.
Buildings and structures. Similarly, older burglary laws typically applied only to homes—and then only if the crime occurred at night. Burglary laws now extend to almost all kinds of structures and can even include portable ones like cars, boats, tents, and mobile homes. Nowadays, for instance, illegally entering a barn at noon in order to steal something from inside can result in a burglary conviction.
The word "burglary" probably calls to mind a masked crook with a sack breaking into a residence in order to steal money or property. In reality, although burglaries often involve theft, the intended crime doesn’t need to be theft, nor does the person need to complete the intended crime.
Any crime will do. Generally, illegally entering a building with the goal of committing a felony or some type of theft qualifies as a burglary—and, in many states, illegally entering a building with the intent to commit any crime will do. For example, a suspect may enter a building with the intent to burn it down or assault someone. Both are sufficient for a burglary conviction. Some states provide harsher penalties if the person intended to commit a felony rather than a misdemeanor.
Intent at the time of entry. As long as a person enters a building intending to commit a crime, it's still a burglary even if the person is arrested or scared off before the crime can take place. On the other hand, it may be some other offense—like criminal trespass—if a culprit first decides to commit a crime only after entering a building.
Proving intent. In cases where the defendant doesn't complete the intended crime, the prosecution must prove what was going on in the defendant's head when entering the building. Unless a defendant confesses to their intentions, the prosecution will need to prove intent through circumstantial evidence. Say the police catch a person attempting to climb into a basement window. The person has a large backpack containing a lockpick, wire cutters, a knife, and duct tape. A jury could easily conclude that the person was entering the house intending to commit a crime, likely to steal or even harm someone.
Facts: Phil is charged with burglary. The prosecution claims that Phil, wanting a birthday present for his girlfriend, went into the stockroom of a drugstore and took a bottle of perfume. Phil admits to taking the bottle but asks the judge to convict him only of petty theft, a misdemeanor.
Verdict: Phil can be convicted of burglary. In many states, entering a building open to the public with the intent to commit a crime is an unlawful entry. A store owner's permission to enter extends only to entry for legal purposes. In this case, Phil also entered a restricted part of the store—the stockroom. It's an illegal entry to access a private or prohibited space within a public building, such as an employee breakroom or private office.
Facts: Klaus enters the home of his ex-wife Wilma by climbing through a window. Klaus has threatened to harm his wife in the past, and he has a tire iron in his back pocket. Wilma hears Klaus coming, runs to a neighbor's house, and calls the police. The police arrest Klaus as he tries to run away through the back door.
Verdict: Klaus has committed burglary. Klaus entered Wilma's house without consent. The prior threats and the tire iron are circumstantial evidence showing that at the moment Klaus entered Wilma’s home, he intended to attack her with a deadly weapon.
A person convicted of burglary will likely face felony charges. Most states divide the crime into degrees of severity, depending on certain factors. For instance, the danger of physical injury is greatest when a burglar enters an inhabited building so, in many states, this constitutes first-degree burglary. Under some statutes, entry at night rather than in the daytime also constitutes a first-degree burglary, regardless of whether the building is inhabited.
]]>This article defines domestic violence and looks at common penalties and issues in criminal cases involving it. The article also provides information both for people looking for help with abuse and for those who have been accused and are looking to protect their legal rights.
“Domestic violence” (or “domestic abuse”) is a catch-all term for violent acts or threats between people who have a particular kind of relationship. They may be married, living together, or even just dating. They may share a child in common. They may be family. They may be heterosexual or LGBTQ.
While anyone can become a perpetrator or victim, serious domestic violence injuries typically result from males attacking females. Though murder and rape can be forms of it, domestic violence often consists of lesser forms of physical abuse, such as slapping and pushing. Stalking can also be a form of domestic violence. (Some states use “domestic violence” to describe abuse against children, too.)
Many states define domestic violence as a distinct crime. So, for example, someone who strikes their spouse could be charged with domestic violence instead of (or in addition to) other crimes like assault and battery.
Here's an example of a state defining domestic violence as a distinct crime: In Wisconsin, the crime of "domestic abuse" is any of the following acts committed against a spouse or former spouse, an adult the defendant lives or used to live with, or the parent of the defendant’s child:
(Wis. Stat. § 968.075 (2022).)
The penalties for domestic violence crimes vary from state to state. Felony convictions carry harsher penalties than misdemeanors, but even misdemeanor domestic violence crimes usually bring possible (if not likely) jail time.
Recognizing that domestic abusers take advantage of their victims' trust and confidence, prosecutors often push for harsher sentences in domestic violence cases. A prosecutor might, for example, want more jail or prison time for someone who attacked a spouse than for someone who did the same to a stranger.
And domestic violence sentences typically include special protections for victims. For example, a conviction for a crime involving domestic violence might result in a mandatory jail sentence and some type of restraining order. In many states, judges can also order convicted abusers to participate in therapeutic counseling. The counseling might include domestic violence classes and anger management programs.
Police and prosecutors face two common problems when it comes to arresting, charging, and prosecuting domestic violence.
For many reasons, victims of domestic violence are often hesitant to report the abuse. Victims might hope that the abuse was an isolated act that won’t happen again. Or they might be afraid that reporting the violence will make the abuser angry and result in more violence.
If a woman and her children are dependent on their abuser's income, she may fear that reporting the violence will lead to a loss of financial support. These understandable reactions are often why many crimes of domestic violence go unreported.
A second difficulty with prosecuting domestic violence cases is that even when they report abuse to the police, victims often refuse to testify against their abusers at trial.
This reluctance can be a problem because victims’ statements to the police after the incident often can’t be used as evidence in court. The reason for this rule is that defendants have a constitutional right to confront and cross-examine their accusers during the trial. A victim who doesn’t testify can’t be cross-examined. As a result, prosecutors must sometimes dismiss domestic violence charges. (But sometimes, statements made during 911 calls can be used in court.)
The reluctance to report and testify makes domestic violence one of the hardest crimes to successfully prosecute.
Some states have special rules for domestic violence cases. One such rule allows prosecutors to present evidence that the defendant committed other acts of domestic violence. This rule is an exception to the general rule that prosecutors can't introduce evidence of a defendant’s criminal history.
There’s plenty of help available for people who have experienced or fear domestic violence. Our Resources for Victims of Crime page lists several sources of aid.
Getting a protective order or restraining order is one of the issues a domestic violence organization might be able to help you with. This kind of order usually bans the abuser from contacting or even being near the victim (say, within 500 feet).
When a victim calls the police to report abuse or seek assistance, officers can often get an immediate emergency restraining order that lasts a few days to a week. This kind of order buys the victim some time to get to court and apply for an order that lasts longer. (Keep in mind that longer-term restraining orders can sometimes be renewed before they expire.)
An abuser who violates the terms of a restraining order—for example, by showing up at a victim's home or place of work—can be arrested and charged with a crime.
Because statistics show that abusers often repeat their behavior, Congress passed a law making it a federal crime for people convicted of a domestic violence misdemeanor to have a gun. (Before that, only people convicted of a felony were banned from having guns under federal law.) The law also prohibits people subject to domestic violence restraining orders from having a gun. (18 U.S.C. § 921 and following (2022); see Federal Firearms Ban for Misdemeanor Convictions for more information.)
Many states have their own laws that overlap with the federal ban, meaning that both that federal law and a state’s own law could prevent an abuser from having a gun.
If you’ve been accused of domestic violence, consult an experienced criminal defense attorney in your area. The law varies at least somewhat from state to state, and from state to federal court. A local, knowledgeable attorney should be able to explain the law and procedures to you, determine whether any defenses apply, and advise you whether to go to trial or try to get a plea bargain.
]]>While people often use the terms “burglary” and “robbery” interchangeably, the words actually have meaningful differences. Burglary involves a person illegally entering a building in order to commit a crime while inside; robbery is generally when someone takes something of value directly from another person by the use of force or fear.
So, to answer the question, the family home has been burglarized.
Robbery is a crime where someone takes something of value directly from someone else. While laws vary by state, the typical elements of the crime are:
States also define burglary slightly differently. But the offense usually has the following elements:
OLD-TIMEY BURGLARY LAWS
In the past, most states defined burglary as forcibly breaking into another person’s home at night. Today, though, burglary statutes are generally much broader. Normally, someone can commit burglary by simply entering any type of building without permission at any time of day while intending to commit a crime once inside.
As you can see above, robbery and burglary have distinct elements. For instance, one crime doesn’t have to involve a building, while the other does. Below are a couple other key differences.
Although burglary often involves theft, a person doesn’t have to steal anything to be convicted of the crime. Robbery, on the other hand, almost always involves theft—the defendant takes or tries to take something from the victim.
Under many burglary laws, the intended crime must be a felony or some form of theft, but some states say that a person who enters a building without permission and intends to commit any crime inside is guilty of burglary. For instance, illegally entering a building with the intent to commit an assault can be the basis for a burglary conviction.
Burglary and robbery also differ when it comes to the use of force. Force, whether against a person or to get into a building, generally isn’t required for a burglary conviction. Robbery, though, necessarily involves the use of force—or at least intimidation—against another person.
In order to be convicted of robbery, someone must use violence or the threat of violence to take something of value directly from another. For example, suppose a man armed with a knife demands money from a gas station attendant and then runs away with the cash. The man has just committed robbery because he used the threat of force to steal money directly from the victim.
As with the definitions of robbery and burglary, penalties vary by state. Generally, though, both are considered serious crimes and convictions can result in stiff punishments. Most states divide robbery and burglary offenses into degrees of severity, depending on factors such as whether a weapon is involved or the crime results in someone getting hurt.
In most states, robbery is always a felony. A robbery conviction can result in significant prison time and hefty fines, especially if the crime involves a weapon. For instance, Maine’s law states that robbery is punishable by a maximum of ten years in prison and a fine of up to $20,000. A conviction for armed robbery in that state is classified as a more serious crime and can lead to a sentence of up to 30 years in prison and a fine of as much as $50,000. (Me. Rev. Stat. tit. 17-A, §§ 651, 1252, 1301 (2017).)
As with robbery, in most cases burglary is a felony. State laws tend to divide burglary into different levels of seriousness, depending on such factors as:
In Hawaii, for example, a burglar who is armed with a weapon, harms someone during the crime, or enters a residence (as opposed to an office, for example) can be sentenced to as many as ten years in prison and fined up to $25,000. (Haw. Rev. Stat. Ann. §§ 706-640, 706-660, 708-810 (2017).)
Again, criminal statutes and penalties can vary widely by state. For more information on burglary and robbery, and to learn about the laws in your area, consult an experienced criminal defense attorney.
]]>While state laws define criminal trespassing somewhat differently, the typical elements of criminal trespassing are:
In order to commit criminal trespass, you must either go onto a property knowing that you don’t have permission to be there or remain on the property after learning that you don’t have the right to be there. Accidentally wandering onto someone’s land while hiking, for example, typically isn’t considered criminal trespass.
In many states, laws require that a warning or notice be posted or delivered before a person can be guilty of trespassing. A property owner can do this by directly telling a trespasser to leave the premises. Or, in many states, there are other ways to provide notice that property is off limits. For example, a sign saying “No Trespassing,” a fence around the property, or a locked door to the property will do the job.
Many states have a general description of trespassing and also outline specific acts that count as the crime. Hunting on someone else’s land, cutting down trees without permission, or even tampering with vending machines can be a form of criminal trespass. Entering or remaining in a motor vehicle without the owner’s permission is another common form of criminal trespass.
Criminal trespass is related to burglary but is generally considered to be a less serious crime. It’s often a misdemeanor or an infraction. In many states, though, it can even be a felony. How seriously the offense will be treated depends on the circumstances of the case.
Generally, criminal laws provide stiffer penalties for illegally entering a residence than for other types of trespass. In Kentucky, for instance, a conviction for entering another person’s home without permission can result in up to a year in jail and a fine not to exceed $500. Convictions for most other types of criminal trespass in that state—including illegally entering any type of nonresidential building or enclosed land—carry the possibility of 90 days imprisonment and a fine of up to $250. Other kinds of trespassing in Kentucky are usually violations and can result in fines of no more than $250.
(Ky. Rev. Stat. §§ 511.060, 511.070, 511.080, 532.090, 534.040 (2023).)
Some states increase the penalties for trespassing on certain protected or vulnerable properties, such as critical infrastructure (a power plant, for example), a domestic violence shelter, school buildings, or religious buildings. A law might also enhance penalties for unlawfully entering areas cordoned off by police tape, cones, or emergency vehicles.
(Minn. Stat. §§ 609.605, 609.055 (2023).)
In addition to criminal charges, a trespasser can face civil liability. Because trespass is a violation of someone’s property rights, a property owner can sue a trespasser for money, even if the trespasser didn’t cause any harm. (If the trespasser’s presence didn’t hurt anyone or damage property, though, the plaintiff will likely only be able to recover nominal damages.) Property owners can sometimes sue not only for money but also for an order putting a stop to a continuing trespass, such as a restraining order or injunction.
Criminal statutes and penalties vary by state. For more information about criminal trespass, or to learn about the laws in your area, consult an experienced criminal defense attorney.
]]>Some states have two types of theft—petty theft and grand theft—that are based on the seriousness of the crime. In many instances, the seriousness of a theft crime hinges on the value or type of property stolen.
Petty theft, as you might have guessed, reflects minor theft crimes. A statute might define petty theft as stealing property worth less than $500. Most petty theft crimes carry misdemeanor penalties.
Grand theft, on the other hand, generally involves more valuable property. For instance, laws in many states consider a theft to be grand theft when:
A conviction for grand theft will typically come with felony penalties that increase as the seriousness of the crime increases.
Other terms. In states that don't use the terms "petty and grand theft," you might see various degrees of theft (such as first-, second-, and third-degree theft) or simply misdemeanor and felony theft. Regardless of the term, most states divide theft crimes by seriousness and impose penalties accordingly.
Some states have laws that set out the crime of shoplifting or retail theft. Others might prosecute what we think of as shoplifting crimes with broader theft statutes. Either way, at its essence, shoplifting is the crime of taking goods from a store without first paying for them.
Here's what a definition of shoplifting might look like:
Hiding the merchandise can also be an element of shoplifting. Some states have a separate crime along the lines of "willful concealment" of merchandise, which makes it a crime for a defendant to intentionally concealing goods while still on the store's premises.
Keeping lost property can qualify as theft if the finder could reasonably return the property to its owner. For example, if Sue is bicycling along a deserted lane and sees a $100 bill floating on a puddle next to the curb, Sue would not be guilty of theft if she kept it. However, the situation is different if, as she's bicycling, she sees Charles drop a $100 bill as he is getting out of the car. Charles is unaware that he has dropped the money and begins to walk away. If Sue rides over, picks up the $100 bill, and keeps it, she has likely committed theft. Because Sue knows that the money belongs to Charles and has a reasonable opportunity to return it to him, she commits theft by not attempting to return the money to him. From a legal standpoint, Sue's keeping the money when she could easily return it to its rightful owner is known as a "constructive" taking.
Buying or keeping stolen property usually translates into a crime popularly known as receiving stolen goods. To convict a defendant of receiving stolen goods, the government normally has to prove that property in the defendant's possession was stolen, and that the defendant acquired the property knowing that it was stolen. The government usually has to rely on circumstantial evidence to try to prove that the defendant had the necessary state of mind. Usually, the government's case relies on evidence that would have alerted any reasonable person that the items were hot.
There are many kinds of theft crimes, including ones not discussed in this article. For information on the law on such a crime in your jurisdiction, consult an attorney. If you face charges, a criminal defense lawyer with experience in the local court system and with cases like yours should be able to explain the relevant law and procedure.
]]>Most animal cruelty laws make it a crime to kill or injure animals “unnecessarily” or “without justification.”
The most obvious justification is self-defense or defending another person from harm. That doesn’t necessarily mean, however, that you can shoot a dog just because it’s growling or barking at you or it has bitten someone in the past. The general rule most courts follow: You must believe it’s necessary to kill or injure the animal to prevent an immediate threat of serious injury—and that belief must be reasonable. Some states, like Georgia, have explicitly included this rule in their laws. (Ga. Code Ann. § 16-12-4 (2023); Grizzle v. State, 707 P.2d 1210 (Okla. Crim. App. 1985).)
Are you allowed to kill a dog if it’s not in the midst of attacking a person? That depends on the circumstances, as well as the language in any applicable state laws. For example:
Many states also have laws that make it legal for farmers or others to kill dogs that are chasing, harassing, or injuring their livestock or domestic animals—which may or may not include pets. (For more details, see “When Dogs Hurt or Chase Livestock.”)
People generally aren’t allowed to kill someone else’s dog in retaliation for past attacks, unless there’s an exception in the law. For instance, a California statute says that people have the right to kill any animals “known as dangerous to life, limb, or property.” (Cal. Penal Code § 599c (2023).)
It’s a different story when it comes to government authorities. Officials often have the right to kill dogs based on what they’ve done in the past, as long as they follow legal procedures—including giving the owners notice and the opportunity to challenge the government’s proposed action. Local animal control officers usually have the authority to pick up, impound, and even destroy dogs that are a threat because of past behavior. And under the “dangerous-dog laws” in many states, authorities may—under certain circumstances—euthanize dogs that have been declared dangerous or vicious.
Courts have generally found that landowners don’t have the right to kill dogs just because they’re trespassing. Here again, there may be exceptions. For example, an Ohio statute says that it’s not illegal for landowners to kill or injure animals while trying to keep them from trespassing or while driving them away from the property. However, the landowners must pay compensation to the animals' owners, minus the amount of any damage that the trespassing dogs caused. (Ohio Rev. Code § 959.04 (2023).)
Animal cruelty laws often specifically outlaw poisoning dogs on purpose, including putting out poison where you know a dog is likely to get into it. Most states don’t make an exception for trespassing dogs, but many do exempt poisoning that’s not malicious. (N.Y. Agric. & Mkts. Law § 360; 510 Ill. Comp. Stat. § 70/6; Va. Code § 18.2-144 (2023).) Some states, such as California, specifically allow putting out poison on your own property to control predatory dogs or other animals, as long as you’ve placed conspicuous signs warning about the poison. (Cal. Penal Code § 596 (2023).)
If you’ve killed or injured someone else’s dog—or another person has hurt your pet—you might want to consult with a lawyer. An attorney specializing in animal law or personal injury law should be able to explain how local law and recent court decisions apply to your situation, as well as your legal options. And if you’re facing criminal charges for killing a dog, you’d be wise to contact a criminal defense attorney, as soon as possible, to protect your rights.
]]>A majority of states have communicable disease laws that make it a crime to expose another person to a contagious disease on purpose. Even without a specific communicable disease statute, all states have general criminal laws—such as assault, battery, and reckless endangerment—that can be used to prosecute people for spreading diseases intentionally or recklessly. And if emergency public health orders are in place, prosecutors can charge people with violations of quarantine and other emergency orders.
A communicable disease is an infectious disease that spreads from one person to another in a variety of ways, including contact with another person, contact with a contaminated surface or object, or bites from insects or animals. The Centers for Disease Control and Prevention (CDC) maintains a national tracking system for infectious diseases.
Criminal communicable disease laws typically focus on infectious diseases with serious public health implications that spread through contact with an infected person’s blood, saliva, mucus, or other bodily fluids. Some states have laws that are specific to a particular disease, like HIV, or a category of diseases, like sexually transmitted diseases (STDs). Other states have laws that address communicable diseases generally. These laws and their punishments differ significantly among states.
In most states, people can face criminal prosecution for spreading a communicable disease if they intentionally or recklessly expose others to the disease. For example, it can be a crime to:
For offenses involving sexual activities, informed consent by one's partner may be a defense.
Law enforcement and prosecutors can also charge people who intentionally spread or threaten to spread communicable diseases under general criminal laws.
Prosecutors can charge assault and battery (inflicting or attempting to inflict bodily injury on another) if an individual knowingly exposes others to a communicable disease. For example, people who transmit undisclosed STIs, like chlamydia or herpes, have been convicted of simple assault for inflicting bodily injury on another. In cases where people have knowingly exposed others to an undisclosed, life-threatening infection, like HIV or hepatitis C, prosecutors have filed charges for aggravated assault (assault causing serious bodily injury) or assault with a deadly weapon, on the theory that the bodily fluid of HIV-positive defendants is a deadly weapon.
Reckless endangerment occurs when a person’s conduct places or might place another person in danger of death or serious injury. In some states, individuals infected with HIV have been convicted of reckless endangerment for behavior, such as having unprotected sex, which might place others in danger of serious injury or death.
Harassment and terrorist threat statutes target people who intentionally annoy, torment, or terrorize people with their behavior. In the context of communicable diseases, prosecutors could file harassment and terrorist threat charges against people who deliberately cough, spit, or touch others while claiming to be infected with a contagious disease.
Unlike most communicable disease laws, harassment and terrorist threat charges generally don’t require prosecutors to prove that the defendant actually had an infectious disease or transmitted a disease to the victim. Prosecutors must only prove that the defendant made a clear, immediate, and unconditional threat to transmit the virus.
During emergency situations involving a communicable disease outbreak, states have emergency police powers to enforce orders to protect public health and safety. Examples of public health and safety orders include curfews, travel bans, shelter-in-place orders, quarantine orders, and orders to wear masks in public places. In most states, breaking a public health and safety order is a misdemeanor (see below).
Depending on the criminal charges filed, a person could face misdemeanor or felony penalties. Misdemeanors generally carry penalties of up to a year in jail, whereas felony penalties involve more than a year’s incarceration.
Penalties for transmitting a communicable disease often depend on the nature of the disease and the means of exposure. For example, Utah makes it a misdemeanor to willfully introduce an infectious disease into a community. However, the penalty increases to a felony if a person willfully exposes a police officer or corrections officer to an infectious disease by spitting, coughing, or otherwise causing blood, saliva, fecal matter, or vomit to make contact with the officer. (Utah Code §§ 26-6-5, 76-5-102.6 (2022).)
Other crimes, like assault, battery, and reckless endangerment, base penalties on the harm or threatened harm to the victim (such as bodily harm or serious bodily injury). Penalties for harassment or terrorist threats will generally vary depending on the circumstances of the crime (repeat violations, mass threats, or bias crimes). Violations of public health emergency orders typically carry misdemeanor penalties, but government officials can also require a person to comply with the order.
States might also have sentence-enhancement statutes that increase penalties based on the defendant’s knowledge of transmitting a particular communicable disease. Sentence enhancements do not criminalize a behavior; they increase the sentence length when a person commits a crime while infected with a disease. For example, a defendant who engages in a misdemeanor act of prostitution might face felony charges if the defendant knowingly engaged in prostitution while having HIV or an STD.
If you have been accused of a crime for spreading a communicable disease, talk to an experienced criminal defense attorney as soon as possible. Because of the wide differences in how states approach communicable disease crimes, you need to find an attorney who knows the details of the laws in your state and who has experience dealing with the local courts, judges, and prosecutors.
You might also want to consult with a personal injury lawyer. The intentional or negligent transmission of STDs (and potentially other viruses like COVID) can give rise to a personal injury lawsuit.
]]>An executive order is a written, signed, and published directive from the head of the executive branch—whether it’s the President, a state governor, or a local mayor. Executive orders have the same effect as laws created through the legislative process, but they go through a simpler process that often bypasses the legislative branch.
This simpler process doesn’t mean a mayor, a governor, or the President can issue executive orders to do whatever they please. The law limits their authority in this area. If the executive branch head exceeds its authority, the order (along with its implementation and enforcement) can be challenged under the applicable state or federal law, the state constitution, or the U.S. Constitution.
Executive orders can be used to perform a variety of tasks ranging from administrative and management issues to emergency responses in the face of a disaster or crisis.
While the public is likely most familiar with emergency orders, many executive orders direct more "mundane" tasks. For instance, an executive order might create a new government agency or combine agencies, manage administrative issues in the executive branch (like pay rates), implement a new state or federal program, or advance initiatives such as equity in hiring or energy conservation. Some of these "mundane" tasks, though, can end up being quite controversial, such as executive orders relating to immigration or education policies.
State governors and local mayors use emergency executive orders to respond quickly in the event of a crisis, such as a natural disaster, riot, or pandemic. The governor or mayor declares a state of emergency, which gives them the authority to issue emergency orders to protect life and property. (Most emergency orders will be issued at the local or state level, not at the federal level, given the nature of emergencies.)
For instance, a governor can use an emergency executive order to direct citizens to evacuate areas expected to be hit by a hurricane or be overtaken by wildfires. A governor or mayor may issue a curfew if violent riots erupt in a city. And, as we saw with COVID, governors can issue shelter-in-place orders, direct businesses and schools to close, and make other directives in order to contain the spread of infectious diseases.
Emergency orders often implement directives that wouldn’t be allowed in non-emergency times, such as forcing people to stay in their homes. Because of their emergency nature, these orders are limited to responding to the crisis and last only as long as the crisis does. (Other executive orders generally last until the task is complete or the next executive revokes it.)
In addition to making directives, emergency orders should outline how these directives will be enforced and what the penalties are for violating them. If not, state law typically fills these gaps. Penalties might include civil fines, administrative or business licensing repercussions, or criminal penalties.
The enforcement authority for executive order directives often depends on the type of violation. For instance, state or local health officials may be authorized to enforce official quarantine or isolation orders. A state’s department of commerce might be responsible for enforcing orders directed at businesses. Curfews and stay-at-home orders will typically be enforced by police patrolling the area, as will other criminal violations.
Again, the exact penalties will vary depending on the type of violation and violator. For instance, the order might provide that a business will temporarily lose its operating license for violating a shut-down order. Refusing to follow water conservation practices during a drought might result in water being turned off to a property or a civil fine. Violations of curfews, shelter-in-place orders, and evacuation orders typically result in a criminal penalty or infraction, such as a misdemeanor penalty, fine, or both. The officer might issue a citation (ticket) and release the person or arrest them and book them in jail.
Violating an executive order is similar to other law violations. A person can defend against the accusation by challenging the government’s case against them, its evidence, witnesses, and so on, or by using other legal defenses under the law, such as a necessity defense.
When it comes to emergency orders, a common defense is challenging the validity of the order. If the governor or mayor overstepped their authority in issuing the order or certain directives, these provisions can’t be enforced. A defendant might also argue the order is unconstitutional. Many emergency orders aimed at protecting public health and safety can conflict with other rights, such as freedom of assembly and due process rights.
If you or your business face penalties for a violation of an executive order, talk to an attorney about your options.
]]>The two main variations of manslaughter are usually referred to as voluntary and involuntary manslaughter.
Often called a "heat-of-passion" crime, voluntary manslaughter occurs when a person:
For “heat of passion” to exist, the person must not have had sufficient time to “cool off” from the provocation. That the killing isn’t considered first- or second-degree murder is a concession to human weakness. Killers who act in the heat of passion may kill intentionally, but the emotional context is a mitigating factor that reduces their moral blameworthiness.
The classic example of voluntary manslaughter involves a husband who comes home unexpectedly to find his wife committing adultery. If the sight of the affair provokes the husband into such a heat of passion that he kills the paramour right then and there, a judge or jury might very well consider the killing to be voluntary manslaughter.
Involuntary manslaughter often refers to unintentional homicide from criminally negligent or reckless conduct. It can also refer to an unintentional killing through the commission of a crime other than a felony.
The subtleties between murder and manslaughter reach their peak with involuntary manslaughter, particularly because an accidental killing through extreme recklessness can constitute second-degree murder.
Let's look at some case examples to illustrate the differences between murder and manslaughter.
Facts: Fast Boyle is walking along a busy street. Clay bumps into Boyle and continues walking without saying, "Sorry." Angered by Clay's rudeness, Boyle immediately pulls out a gun and kills Clay.
Verdict: Boyle could probably be convicted of second-degree murder because he killed Clay intentionally. A judge or jury is unlikely to conclude that the killing was premeditated, which would have elevated the shooting to first-degree murder. On the other hand, this wasn’t the kind of heat-of-passion killing that equals voluntary manslaughter. While Boyle might have been provoked in some sense, the circumstances weren’t so extreme as to cause a reasonable person to lose control.
Facts: Standing next to each other in a bookstore a few feet away from the top of a flight of stairs, Marks and Spencer argue over the proper interpretation of free will in Hobbes's philosophy. The argument becomes increasingly animated and culminates when Spencer points a finger at Marks and Marks pushes Spencer backward. The push is hard enough to cause Spencer to fall down the stairs. Spencer dies from the resulting injuries.
Verdict: Marks would probably be guilty of involuntary manslaughter. It was criminally negligent of him to shove a person standing near the top of a stairway. But the circumstances don't seem to suggest that his behavior was so reckless as to demonstrate extreme indifference to human life, which would have elevated the crime to second-degree murder. If the evidence had indicated that Marks intended to kill Spencer with the push, a judge or jury would have had to determine whether the extent of the provocation made the homicide voluntary manslaughter.
Facts: Lew Manion comes home to find that his wife Lee has been badly beaten and sexually abused. Manion takes Lee to the hospital. On the way, Lee tells Manion that her attacker was Barnett, the owner of a tavern that she and Manion occasionally visit. After driving Lee home from the hospital about four hours later, Manion goes to a gun shop and buys a gun. Manion then goes to the tavern and shoots and kills Barnett.
Verdict: Manion could be convicted of first-degree murder because the time for reflection and his purchase of the gun indicates premeditation and deliberation. Voluntary manslaughter is a somewhat less likely alternative because a judge or jury could find that the heat of passion had cooled, even though Manion remained angry at the time he acted.
Manslaughter convictions often result in prison time. As an example, in a 2004 New York decision, an appeals court upheld the following sentence in a driving-while-intoxicated case where there was a collision and the defendant's passenger died as a result: three to nine years for second-degree manslaughter, concurrent with two to six years for second-degree vehicular manslaughter. (People v. Yanus, 13 A.D.3d 804 (2004).)
Keep in mind, of course, that the sentence in any case depends not only on the jurisdiction's laws but also on the court's evaluation of the circumstances and the defendant.
If you're facing serious criminal charges, such as manslaughter, contact a criminal defense attorney. A lawyer can guide you through the criminal justice system, protect your rights, and zealously defend your case.
]]>But, if you get into an accident and don't abide by certain requirements, you can end up facing criminal charges, regardless of who was at fault for the collision. Hit-and-run is a crime that has to do with the aftermath of an accident rather than its cause.
In this article, we'll explain how hit-and-run is generally defined and the consequences you could face for a hit-and-run conviction.
The laws of each state are a little different. However, all states impose certain duties on drivers who are involved in an accident. When a driver fails to meet these duties, he or she can be charged with what is commonly called a "hit-and-run" offense.
The laws of most states don't actually use the term "hit-and-run." Generally, hit-and-run statutes use more descriptive terms. Some examples include:
But regardless of the official name, attorneys, judges, and pretty much everyone else tend to use the term hit-and-run for short.
To establish a hit-and-run charge, prosecutors must prove several elements in court. Typically, these elements consist of showing the driver was involved in an accident resulting in property damage or injuries and that the driver failed to:
These elements are fairly consistent among states, though the details sometimes differ.
Generally, drivers must stop and provide information when an accident involves property damage or injuries. So, if a driver just hits a curb or something like that and there's no damage or injuries, the driver doesn't have to stop or do anything else.
State laws differ somewhat on the specific information a driver must provide at the scene of an accident. However, in most states, drivers are required to provide at least some of the following:
Generally, drivers must provide this information to all others involved in the accident, including other motorists and pedestrians.
Typically, drivers must make reasonable efforts to locate the owner of an unattended vehicle or property that is damaged in an accident. In most situations, leaving a note (that includes the information listed above) in a conspicuous place will suffice.
Drivers who are involved in an accident that involves injuries or death generally must remain at the scene of the accident and provide reasonable assistance. In most cases of this type, rendering aid or assistance means contacting medical personnel and/or law enforcement.
Laws can provide stiff punishment for hit and run, though specific penalties vary from state to state. In most places, prosecutors can charge the offense as either a felony or a misdemeanor, depending on the facts of the case.
A collision that results in a death or serious injuries will typically lead to felony hit-and-run charges. In some states, even a hit-and-run accident that causes significant property damage can mean a felony charge. Typically, though, if no one was injured in the collision, the charge will be a misdemeanor.
Both felony and misdemeanor convictions can result in jail sentences (felony convictions can even lead to prison time), fines, and license revocation.
A misdemeanor hit-and-run conviction generally carries:
Depending on the circumstances, the convicted motorist might also face license suspension or revocation for up to a year or so.
The consequences of a felony hit-and-run conviction are normally quite a bit more severe than those for a misdemeanor violation. Depending on the situation, the convicted driver could be looking at:
The penalties tend to be most serious in cases where someone was killed or seriously injured.
As mentioned above, car accidents usually involve civil liability. Hit-and-run collisions are no exception. Usually, civil liability is just the amount it takes to pay for damages and actual injuries. However, hit-and-run accidents sometimes involve punitive damages, which can significantly increase the amount the driver has to pay.
If you've been arrested in relation to a hit-and-run accident, the consequences can be severe. A qualified criminal defense attorney can let you know how the law applies in your case and whether you have any viable defenses. Having an experienced attorney at your side can make all the difference when you're facing serious criminal charges.
]]>As a general rule, state laws refer to the main actor in a crime as the “principal” and to assisting persons as “accomplices” or “aiders and abettors.” While definitions tend to vary by state, an accomplice is generally someone who intentionally does something to encourage or help another person to commit a crime.
In most cases, the accomplice doesn’t have to participate in the crime to be guilty of aiding and abetting. Suppose, for example, that Lars is planning to break into a warehouse and steal property belonging to the warehouse owner. Hal would be Lars's accomplice if he takes any of the following steps to assist Lars in the commission of the crime:
Laws typically make no distinction between an accomplice and a principal, which means that an accomplice can be prosecuted and punished in the same manner as the person who actually commits the crime.
THE COMMON LAW: PRINCIPALS AND AIDERS AND ABETTORS
To distinguish the criminal culpability of one from another, the common law developed specialized terms for the various ways in which one could be involved in the commission of a crime. For instance, a "principal in the first degree" was the person who actually carried out a crime. A "principal in the second degree" (an “aider and abettor”) was a helper who was present at a crime scene but in a passive role, such as acting as a spotter. While some state laws retain the common law terminology, few states make any distinction between the criminal liability of perpetrators and their accomplices. All can be punished equally, whether they actually commit a crime or only help bring it about.
Like accomplices, accessories intentionally do something to help the principal commit a crime. While laws vary by jurisdiction, an accessory typically helps out either before or after the crime and is not physically present at the crime scene. Going back to the example above, if Hal only helped Lars avoid arrest after the burglary was complete, Hal would be an accessory to the crime and not an accomplice.
State laws often distinguish between “accessories before the fact” and “accessories after the fact.” But many states consider accessories before the fact to be aiders and abettors, and, like accomplices, accessories before the fact are usually charged and punished in the same manner as the principal. On the other hand, accessories after the fact typically face less serious charges and punishments than accomplices and principals.
Conspirators are two or more people who agree to commit a crime. Conspiracy is related to aiding and abetting, but it’s the agreement that distinguishes the two offenses and makes each conspirator a principal offender. In order to convict someone of conspiracy, prosecutors must prove that the person entered into an agreement with at least one more person to commit a crime. An aiding and abetting conviction doesn’t require such proof.
Conspiracy is a controversial crime, in part because conspirators can be guilty even if the crime they agree to commit never occurs. As a result, conspirators can be punished for their illegal plans rather than for what they actually do. As some protection against convicting people purely for their private thoughts, in most states conspirators are not guilty of the crime of conspiracy unless at least one of them does something (called an "overt act") to help move the plan forward. The overt act doesn’t have to be illegal. For instance, imagine that Lars and Hal enter into an agreement to break into the warehouse and steal its contents. Afterward, they meet at a coffee shop to plan exactly how to go through with the crime. Getting together for coffee isn’t illegal, but the meeting could be considered an overt act because the two men had previously agreed to commit burglary.
]]>The term “minor” can be a bit misleading in this context, as it generally refers to anyone younger than 18. But for alcohol-related offenses, it refers to the legal drinking age and not the age of legal adulthood.
For purposes of this article, "minor" and "underage person" will both mean individuals younger than 21.
Minor-in-possession (MIP) laws (also called underage drinking laws) make it a crime for underage persons to possess or consume alcohol. Alcohol includes wine, beer, intoxicating liquors, and fermented beverages.
To be caught “in possession,” the cop doesn’t need to see the minor with the alcoholic beverage in hand or drinking it. Possession can be actual (drink in hand) or constructive (drink close by). A prosecutor can show constructive possession by showing the minor had knowledge of, and immediate control over, the area where the alcohol was found.
When it comes to consumption of alcohol, any amount triggers a violation. The minor doesn’t need to be intoxicated or register a certain blood alcohol concentration.
Some common exceptions to a MIP violation include consuming alcohol in the following circumstances:
In some circumstances, minors may possess alcohol in the performance of their job, although most places require underage persons to be at least 19 to sell, serve, or deliver alcohol.
Most often, a MIP violation is a misdemeanor. If the underage person tried to purchase alcohol or used a fake identification (ID), additional penalties may apply.
The same penalty applies regardless of the age of the offender. However, violations by minors younger than 18 will be handled differently than those committed by adults (ages 18, 19, and 20). Adults will have their cases heard in adult court and, if found guilty, will end up with a conviction on their record. Juveniles fall under the juvenile court jurisdiction and often receive an adjudication of delinquency (or something similar).
Punishment can take a number of forms depending on the facts of the case, the age of the defendant, and the defendant's history of prior offenses.
In both juvenile and adult court, the judge can generally order:
Juvenile court. A juvenile court judge might also order the minor to attend school if they’ve been truant. Notification to the school of the MIP violation is also common. Juvenile judges can also issue orders pertaining to the juvenile’s parent or guardian. For instance, the judge could order family counseling.
Adult court. Adult court judges can order jail time, but time behind bars is usually unlikely unless the person was highly intoxicated, damaged property or drove in addition to drinking, or has a history of other offenses.
Some prosecutors or judges may offer the underage person a chance to avoid a delinquency adjudication or adult conviction through diversion or deferred adjudication. To take advantage of these options, the underage defendant will typically need to agree to comply with terms set by the prosecutor’s office or the court. Conditions often include obeying all laws, going to counseling, attending educational courses on alcohol abuse, paying fines and fees, and doing a community service project. If successful, the prosecutor may agree to dismiss the charges or the court might dismiss the case.
The MIP laws in most states also make it a crime for someone to give or sell alcohol to, or buy it on behalf of, those under the drinking age. While these crimes tend to fall under the umbrella of MIP violations, they carry stiffer consequences.
Penalties for serving, selling, or furnishing alcohol to a minor can result in a misdemeanor or, sometimes, felony penalties. Felony penalties might apply to repeat violations or to a violation resulting in an underage person becoming intoxicated and suffering great harm or death as a result. If a store clerk or bartender sold the alcohol, the store or bar could lose their liquor license and face substantial fines on top of the individual criminal penalties.
When it comes to selling alcohol, most states require sellers to verify the buyer’s age and proof of valid ID. Claiming ignorance of the person’s age won’t generally work as a defense to any of the above offenses. Sellers are allowed to deny a sale if they have any reason to doubt the validity of the ID or the buyer’s age. But if a seller reasonably believed the ID was legitimate and the underage person was of age, the law may allow the seller to raise this issue as a defense.
If you face charges, contact a criminal defense attorney right away. Your attorney can help you understand the consequences at stake and review your options.
]]>Generally speaking, a hit and run occurs when you're involved in a car accident (either with a pedestrian, another car, or a fixed object) and then leaving the scene without stopping to identify yourself or render aid to anyone who might need assistance. At least a few states also include in the definition of “hit and run” any collision with an animal.
In most states it doesn’t matter whether you caused the car accident or not. The act is committed simply by leaving the scene. If you must leave the scene of an accident to access emergency assistance—by leaving a rural cell phone "dead area" to get a signal, for example—most states do not consider that to be a hit and run, as long as you return immediately to the accident scene.
Most states do not require that the hit and run occur on a highway or public road. Many states extend hit-and-run laws to cover parking lot collisions. For example, if you back into an unoccupied car in a parking lot and fail to leave a note with your contact information on the windshield, the laws of many states treat this as a hit and run.
Learn more about the right steps to take after a car accident.
The criminal penalties for a hit and run vary from state to state. A hit and run offense is classified as either a felony or misdemeanor, depending on the circumstances. Felony hit and run is defined by most states as leaving the scene of an accident where there is any type of injury to a person, whether the injured person is a pedestrian or an occupant of a vehicle.
The penalties for felony hit and run can be quite severe. Most states impose fines of between $5,000 and $20,000. And there is very real potential for incarceration as punishment for a felony hit and run. Depending on the nature of the accident and the injuries that resulted, in some states a felony hit and run is punishable by up to 15 years in prison.
Remember, a hit and run might be classified as a misdemeanor instead of a felony. While the term “misdemeanor” sounds relatively minor to some people, in most states misdemeanors are punishable by a significant fine of up to $5,000 and also by up to one year in jail.
In addition to the criminal penalties for hit and run, almost every state imposes administrative penalties related to your driver’s license. These penalties are often imposed through the individual state’s Department of Motor Vehicles.
Any conviction for hit and run, regardless of whether it’s for a felony or misdemeanor, typically results in an automatic suspension or revocation of your driver’s license for a period of six months or so. In some states the revocation can be as long as three years. Depending on the state in which you live, and the nature and circumstances of the car accident in which you were involved, the penalty for hit and run may include a lifetime revocation of your driver’s license. These administrative penalties are in addition to any criminal punishment that might be imposed for hit and run.
If you have caused the accident, it is possible that another person involved in the crash may sue you in court for the damages they suffered. Such a lawsuit may ask for monetary compensation for medical bills, lost wages, and property damage.
Of course, this kind of lawsuit is likely to happen anyway even if you did not commit a hit and run at the scene of the accident, if you are deemed at fault for the car accident. But if you are liable for a hit and run on top of having caused the accident, the damages that a court orders you to pay will almost surely be increased. Some states will impose punitive damages or “treble damages” on a hit-and-run driver in a civil lawsuit.
Punitive damages are awarded in court to the injured person (the plaintiff), but they're not meant to cover the injured person's losses. Instead, they're meant to punish a defendant's particularly dangerous or outrageous behavior. A hit and run certainly might qualify. Learn more about punitive damages in car accident cases.
Treble damages awarded to the plaintiff are tripled where a statute requires or allows it. For example, if the jury in a civil suit awards the plaintiff $10,000 in damages, a statute related to civil penalties for hit and run might allow the judge to automatically triple that amount to $30,000 because the hit and run amounts to particularly reckless and egregious conduct.
In most instances, punitive and treble damages are not covered by your car insurance policy. In other words, you will have to pay that amount out of your own pocket.
In addition to the other penalties we've already touched on, many insurance companies have a practice of canceling your automobile insurance policy if you commit (or are convicted of) a hit and run.
If you've fled the scene of your car accident and are ready to discuss your situation with a legal professional, you might want to start by reaching out to a car accident lawyer in your area. If your case would be better off in the hands of a different kind of an attorney (one who specializes in criminal defense, for example) a car accident lawyer can always recommend the right course of action.
]]>At least 39 states have “dangerous-dog laws” laws that are intended to protect the public from dogs that are dangerous or vicious. In order to save the animals from being euthanized, owners must generally meet certain conditions, ranging from keeping the dog confined or muzzled to buying liability insurance or a special license. In many states, it’s a crime to violate these restrictions, particularly if the dog hurts someone. Penalties range from fines to prison time for a felony. For example:
Even when dogs haven’t been declared dangerous, their owners may face criminal charges if their animals attack someone. In Washington, for instance, if a dog aggressively attacks someone and causes serious injury or death, the prosecutor can charge the owner with a felony. (Wash. Rev. Code § 16.08.100(3).)
And while it’s unusual, some local laws subject owners to criminal penalties when their dogs bite or injure. An appellate court in Nebraska upheld a conviction for violating an Omaha ordinance against harboring a dangerous dog, after the defendant's dog seriously injured a guest in his house. The court held that the ordinance didn’t violate the owner’s constitutional due process rights, even though it didn’t require that the owner knew about the animal’s dangerous tendencies. (State v. Ruisi, 616 N.W.2d 19 (Neb. Ct. App. 2000).) Similarly, an appellate court in Kansas upheld the conviction of a woman in Topeka for violating a city ordinance making it a crime to permit a dog to attack someone. The animal had rushed from the woman’s garage and bitten a mail carrier. (City of Topeka v. Mayer, 826 P.2d 527 (1992).)
When there’s evidence that a dog owner gave a command or encouraged the animal to attack someone, courts may find the owner guilty of using the dog as a dangerous weapon to commit a crime like assault. Some examples:
In extreme cases, an owner may be charged with negligent homicide when a dog kills someone because the owner’s failure to control the animal was reckless or criminally negligent. In Louisiana, the negligent homicide law states this explicitly (La. Rev. Stat. § 14:32.)
In a California case that made headlines at the time, a woman was initially convicted of negligent homicide and second-degree murder after her huge Presa Canario dogs attacked and killed a woman in the hallway of their apartment building. Evidence showed that the dogs had a history of threatening people and that the owner had trouble controlling them. The California Supreme Court overturned the murder conviction (because it required proof that the owner had acted with a conscious disregard of danger to human life), but she didn’t appeal her conviction for negligent homicide. (People v. Knoller, 158 P.3d 731 (Cal. 2007).)
In another second-degree murder case, the Kansas Supreme Court found that the state didn’t have to prove that a dog owner knew her Rottweilers would attack and kill a child, only that she acted recklessly in a way that showed her extreme indifference to the value of human life. The evidence showed that the dogs had a history of menacing behavior, that the woman had “fostered” their aggressiveness by failing to train them properly, and that she had ignored the predictable consequences. (State v. Davidson, 987 P.2d 335 (Kan. 1999).)
If you’re facing potential criminal charges because your dog has injured someone, consider speaking with a criminal defense lawyer as soon as possible. An experienced attorney can explain how the law applies to your situation, explore any defenses you might have, and help you protect your rights. If you’re dealing with dangerous-dog proceedings, consult an animal law attorney to assist you and help keep your dog safe.
]]>Read on to learn how the law defines and penalizes assault, assault and battery, and aggravated assault crimes. (To learn about assault and battery as intentional torts that can form the basis of a civil lawsuit, check out Assault and Battery as Personal Injury Claims.)
Assault is often defined as any intentional act that causes another person to fear an attack or imminent physical harm. This definition recognizes that placing another person in fear of bodily harm is itself an act deserving of punishment, even if the victim of the assault is not physically harmed. This definition also allows police officers to intervene and make an arrest without waiting for the assaulter to actually strike the victim.
Assault example: Snider is walking down a city street carrying a bottle of soda. Mantle, walking along the same street in the opposite direction, sees Snider approaching. Because of Snider's reputation as a hothead, Mantle immediately becomes fearful that Snider will swing the bottle at him when their paths cross. As they walk past each other, nothing happens. Snider has not committed an assault. Snider has a right to carry a bottle of soda in public, and Mantle's fear of being hit was not the result of Snyder's intentionally threatening behavior. But now assume that, as they draw closer, Snider draws back his fist and tells Mantle "You're going to pay for stealing my collection of baseball pennants." As Snider begins to swing his fist in Mantle's direction, Mantle sprints away and escapes harm. Here, Snider has committed an assault. His intentional conduct placed Mantle in reasonable fear of immediate bodily harm.
Historically, battery and assault were considered separate crimes, with battery requiring that the aggressor physically strike or offensively touch the victim. In that way, a battery was a "completed" assault. Many modern statutes don't bother to distinguish between the two crimes, as evidenced by the fact that the phrase "assault and battery" has become as common as "salt and pepper." These days, statutes often refer to crimes of actual physical violence as assaults.
The criminal laws of many states classify assaults as either simple or aggravated, according to the gravity of the harm that occurs—or is likely to occur if the assaulter follows through and strikes the victim.
Simple assault often carries misdemeanor penalties (and some states refer to this crime as a misdemeanor assault.) This crime generally involves either the threat of immediate harm or a physical act that results in minimal injuries. Raising a fist at someone and threatening to smack them would be a simple assault. Shoving or slapping a person that results in bruising may also be charged as simple assault.
Aggravated assault is a felony that may involve an assault resulting in serious bodily harm or an assault committed with a weapon or with the intent to commit a serious crime, such as rape. (Some assault laws name the aggravating factor—for example, "assault with a deadly weapon.") An assault may also be defined as aggravated if it occurs in the course of a relationship that the legal system regards as worthy of special protection (see "Aggravated Assault Example 2" below for more discussion). In the absence of factors such as these, the crime tends to be simple assault, as described above.
Other assault classifications. As an alternative to classifying assaults as either simple or aggravated, some states recognize the different levels of harm that they can cause by classifying them as first- (most serious), second-, or third-degree (less serious) assaults.
Example 1: Alyssa is walking alone late at night when a man suddenly jumps in front of her and drags her into the bushes. The man strikes her a couple times and begins to rip at her clothes. Fortunately, Alyssa strikes the attacker with a rock and runs away to safety. The attacker is guilty of aggravated assault because the circumstances indicate that he assaulted Alyssa with the intent of raping her.
Example 2: A nurse in a nursing home facility fondles an elderly patient. The nurse may be convicted of aggravated assault in states that have enacted special statutes to protect elderly or mentally ill patients against violence by caregivers.
The penalties for assault and battery crimes depend on the amount of harm done or threatened, the victim, and the offender’s criminal record.
Simple assault (or assault and battery) generally carries misdemeanor penalties of up to a year in jail and fines around $500 to $2,500. Felony penalties may apply if the offender has prior assault convictions or assaulted a vulnerable victim (such as a child or elderly person) or a protected victim (like an EMT or teacher). Generally, these offenses tend to carry low-level felony penalties, such as two to five years in prison.
Aggravated assault can result in stiff felony penalties of 10-, 15- or even 20-years’ prison time, plus fines of $5,000 to $20,000. The punishment often depends on the level of harm threatened or inflicted. For instance, an aggravated assault involving a dangerous weapon or resulting in serious bodily harm (like broken bones) might carry a 10-year sentence. But if the assault threatens or results in great bodily harm or risk of death, the maximum penalty may be a 20-year prison sentence.
A judge might sentence a first-time defendant to probation, which allows the person to serve all or part of their sentence in the community. Probation is less likely for repeat or egregious assaults. Conditions of probation might include attending anger management classes or substance abuse counseling, staying away from the victim, and paying restitution to the victim.
Whether a defendant serves time in the community on probation or behind bars, a judge will likely issue a restraining or protective order against the defendant. This order prohibits the defendant from contacting or seeing the victim (even from behind prison walls). A violation can mean an immediate arrest and an additional conviction.
If a victim suffers physical or emotional injuries resulting from the assault, the judge can order the defendant to pay for these medical and counseling bills. The defendant might also have to pay for any property damage done during the assault. Payments from the defendant to the victim are referred to as restitution.
If you've been arrested or charged with a crime, consult an experienced criminal defense attorney. A knowledgeable lawyer will be able to fully explain the law in your state and advise you of your options. You can use Nolo's trusted Lawyer Directory to find an experienced criminal law attorney near you.
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While the powerful relief afforded by bankruptcy frees you from overwhelming debt, it comes at a cost to your creditors. Bankruptcy law attempts to mitigate this loss by giving your creditors a share of your nonessential assets in exchange for wiping out your debt. You’ll disclose all property you currently own (and asset transfers) and keep the things you can exempt—generally property needed to maintain a job and home.
Here’s what will happen to the rest.
Remember that your creditors are entitled to receive certain property or payments—it’s part of the deal. Hiding assets, knowingly omitting required information on bankruptcy paperwork, or inappropriately using the bankruptcy process to a creditor’s detriment could be considered bankruptcy fraud.
Fraud doesn’t always play out within the bankruptcy itself—it can occur before the bankruptcy filing. This problem often arises when someone tries to erase a prior bad act using bankruptcy. Here are examples of fraudulent behavior that might cause a creditor to ask the court to deny your discharge of a particular debt (you’ll still owe it after the case ends):
Be aware that the bankruptcy trustee will often work closely with a creditor or interested party when that person is making a fraud claim. For instance, if a creditor asks uncomfortable and probing questions 341 meeting, the trustee will likely continue the meeting to allow the creditor more time. Why would the trustee want to get involved? Because dishonest debtors hide assets, and the more assets the trustee finds, the more the bankruptcy trustee gets paid.
Learn more by reading When the Bankruptcy Trustee Suspects Fraud.
Most people who file for bankruptcy are honest and transparently report all assets. Still, it’s not always the case—and succumbing to the temptation to hide property can result in a bankruptcy fraud accusation. Here are examples of actions that, if intentional, would likely be problematic:
You’ll only run into trouble if it’s believed that you knowingly and intentionally committed a fraudulent act. Why? Because bankruptcy fraud doesn’t happen by accident or mistake. For instance, accidentally forgetting to list an asset or incorrectly stating your income or expenses probably wouldn't rise to the level of fraud. However, if you failed to list your vacation home in your bankruptcy paperwork, hoping that the trustee wouldn’t find out about it, it’s likely you’ve knowingly and intentionally done the following: hidden an asset, filed a false form, and committed perjury.
Not all fraud is the same. The severity of the consequences for civil versus criminal fraud differs substantially. Learn more about the differences between these two types of bankruptcy fraud.
Civil cases usually arise when a creditor files a lawsuit (adversary proceeding) alleging wrongdoing involving one particular debt (see “Fraud That Starts Before Bankruptcy” above for a list of examples of common allegations). If the creditor proves its case, the filer will face a variety of consequences. For instance, the court can do one or more of the following:
Learn about presumptive fraud in bankruptcy—a trap that’s not only easy to fall into but easy for a creditor to prove. Also, find out what happens when the bankruptcy trustee suspects fraud.
A significant scheme to deprive multiple creditors would be more likely to rise to the level of criminal bankruptcy fraud. Under federal law, cases of criminal fraud are investigated by the Federal Bureau of Investigation (F.B.I.) and aggressively prosecuted by the U.S. Department of Justice (D.O.J.). Although the bulk of the crimes apply to debtor activities (the person who files the case), creditors, bankruptcy trustees, court personnel, and third parties can also be convicted of bankruptcy crimes.
Also, many types of dishonesty are often involved in criminal bankruptcy fraud, some of which are also crimes. You’ll find most bankruptcy crimes in federal criminal statutes. (18 U.S.C. §§ 152, 157.) Here are some examples.
Along with bankruptcy fraud, federal prosecutors often add counts for other federal crimes. For instance, the D.O.J. might prosecute someone for perjury who fails to list an asset on bankruptcy schedules. Also, prosecutions often include tax fraud, wire fraud, mail fraud, money laundering, bank fraud, identity theft, or conspiracy, each of which brings separate penalties.
The consequences of engaging in criminal bankruptcy fraud can be harsh. Anyone who makes a knowingly false statement in association with a bankruptcy filing can be assessed fines up to $250,000 and receive up to 20 years in prison. If you’re looking for information about penalties associated with bankruptcy fraud—such as jail time, fines, and more—go to Bankruptcy Fraud Consequences and Penalties.
Rest assured that it’s unlikely for a debtor to face fraud allegations without warning. Most filers are fully aware of their past actions and know to expect a possible fraud accusation. If this is a concern, consult with a knowledgeable bankruptcy attorney.
Other individuals considering filing for bankruptcy can take steps to avoid fraud allegations by transparently disclosing financial information. For instance, a debtor should be prepared to list all income, property, creditors (even if the intention is to repay a particular creditor after the bankruptcy), and prior transactions (such as property sales, donations, and gifts). You can learn what you’ll disclose by reviewing the official bankruptcy paperwork.
]]>While the specifics vary, most dangerous dog laws include:
Some states, while making it illegal to keep dangerous dogs, don’t spell out the process for deciding when dogs fit that description. Certain states (like Washington and Montana) explicitly leave the procedural details up to the counties. Even when they don’t, many cities and counties enact their own ordinances, which may mirror or go beyond the state requirements. (You should be able to find the relevant rules by calling your local animal control department or searching under your county’s website.)
Many people picture certain breeds when they think of dangerous dogs. And some local governments still ban pit bulls and other breeds that have a bad reputation (although several states prohibit breed-specific regulations). In contrast, the definitions of dangerous dogs in state laws are generally focused on the animals’ actual behavior. While the definitions range from vague to extremely detailed, a dog may be declared dangerous if it has:
Some states have more than one category of problem dogs, to put their owners on notice before they’re subject to more serious restrictions and penalties. Illinois, for instance, has three levels: potentially dangerous, dangerous, and vicious (510 Ill. Comp. Stat. 5/2.05a, 5/2.17c, 5/2.19b). In New Hampshire, a dog can be declared a “nuisance,” a “menace,” or “vicious” for behavior ranging from barking too much or chasing cars to attacking people or animals (N.H. Rev. Stat. § 466:31).
In those states with clear procedures for deciding when dogs are dangerous or vicious, there are different ways of starting the process. Some states allow people to file a dangerous-dog complaint only if they meet certain conditions, like having been attacked or having witnessed an attack. Massachusetts allows written complaints by anyone, period. However, the law also makes it clear that a dog won’t be found dangerous just because it growls and barks, or because it attacked or threatened someone who provoked the animal or trespassed in a space where it was contained. (Mass. Gen. Laws Ann. ch. 140, § 157.)
More often, dangerous-dog proceedings are set in motion when animal control or law enforcement officers file a petition and/or impound a dog because they have probable cause or a reason to believe that it’s dangerous—for instance, because it has already attacked someone. Of course, that belief is often based on the victim’s report about the attack.
If they haven’t already done so, animal control officers will usually impound the animal once the dangerous-dog proceedings have started. Owners aren’t likely to get their dogs back until there’s been a final decision (if then).
Typically, states with these laws require a hearing before a dog is declared dangerous or vicious, but the procedures vary from state to state. In some states, the owner has to request a hearing, while others require a hearing in all cases. In a few states like Florida and Georgia, authorities make the determination first, and then the owner may request a hearing to contest the decision.
Regardless of the specifics in state law, some fundamental constitutional requirements apply. Dogs are considered property under the law. That means that before government can take away that property—a potential outcome of dangerous-dog proceedings—owners are entitled to “due process,” including notice of the proceeding and the opportunity to contest it. The Ohio Supreme Court overturned a former version of that state's vicious dog law because it didn't give owners a meaningful opportunity to be heard before their dogs were labeled dangerous. At the time, the law authorized a dog warden to make the decision unilaterally, without any administrative hearing or right to appeal. (State v. Cowan, 814 N.E.2d 846 (Ohio 2004).)
Still, because dangerous-dog proceedings are usually administrative hearings, dog owners aren’t necessarily entitled to all of the due process rights they would have in a criminal trial (such as the right to cross-examine witnesses). Administrative hearings are basically a less formal version of a trial, and the rules are more relaxed. The dog owner, the person who complained, and the animal control officers may present evidence about the dog’s behavior or disposition. Sometimes, the hearing officers will limit the evidence to written statements and reports, which might include hearsay evidence that wouldn’t be allowed in criminal trials.
Owners may appeal dangerous-dog decisions, usually in the local superior or municipal court.
Once dogs have been declared dangerous, their owners have to meet certain conditions in order to keep the animals. The laws list many of these restrictions, but hearing officers may impose others as appropriate. At a minimum, laws generally require that the dog be kept enclosed on the owner's property at all times unless it's leashed and, in some places, muzzled as well.
Depending on the law and the danger posed by the dog, other conditions for keeping a dangerous dog may include:
Several counties (and a few states, like Pennsylvania and Virginia) have registries of dangerous or vicious dogs.
Dangerous-dog laws usually include provisions for ordering dogs euthanized. In some states, authorities may (or must) issue “kill” orders as soon as they find that the dog is dangerous or vicious. More often, the dogs will be killed only if they’ve seriously injured someone or pose a threat to the public. In Michigan, the judge must order a dangerous dog destroyed if it has seriously injured a person or another dog; otherwise, it’s up to the judge’s discretion (Mich. Comp. Laws Ann. § 287.322). New Jersey requires that all vicious dogs be euthanized, but they won’t be declared vicious unless they’ve already seriously hurt someone or they’ve been involved in dog fighting (N.J. Stat. Ann. § 4:19-22(c).)
When a dangerous dog has been spared immediate euthanasia and returned to its owner, the animal is unlikely to get a second chance if it attacks someone—or sometimes if the owner simply doesn’t follow the conditions for keeping the dog. For example, dogs will be killed in New Mexico if their owners haven’t met those conditions within 30 days (N.M. Stat. Ann. § 77-1A-4(D)(2)). In Washington, they’ll be killed if the owners don’t correct any violations (Wash. Rev. Code § 16.08.100(1)). And in Kentucky, peace officers may kill any vicious dog that’s running at large (Ky. Rev. Stat. § 258.235(7)).
Besides the possibility of having their animals killed, owners who violate the dangerous-dog restrictions may also face civil or criminal fines, as well as jail time in some states. (See "Criminal Penalties for Owners of Dangerous Dogs.”)
If the dog injures someone, the owner may also have to pay double or triple damages to the injured person. In Maine, for example, an owner who doesn't comply with a judge's order to confine or muzzle a dog is liable for three times the amount of damage the dog causes (Me. Rev. Stat. Ann., tit. 7, § 3952). The same is true in Massachusetts whenever a dangerous dog injures a person or livestock (Mass. Gen. Laws Ann. Ch. 140, § 159).
If you're facing proceedings to have your dog declared dangerous or vicious, it would be a good idea to consult with a lawyer. An attorney experienced in animal law or criminal defense can help protect your rights, and maybe even your dog's life. Some of the questions you may have include:
Counterfeiting is a form of trademark infringement. It’s the act of making or selling lookalike goods or services bearing fake trademarks. For example, a business deliberately duplicating the Adidas trademark on shoes is guilty of counterfeiting.
The standard of trademark infringement–likelihood that consumers will be confused–is self-evident in counterfeiting: The counterfeiter’s primary purpose is to confuse or dupe consumers.
Counterfeiting isn’t limited to consumer products like watches and handbags. For example, a website that copied the Playboy Bunny logo for adult sex subscription services was assessed $10,000 for trademark counterfeiting. (Playboy Enterprises Inc. v. Universal Tel-A-Talk Inc., 1999 WL 285883 (E.D. Pa. 1999).)
It’s still counterfeiting even when the people buying and selling the merchandise are aware that it isn’t from the real source–for instance, that the clothing isn’t made by Calvin Klein. That’s because even when a buyer knows that the product is a fake, the product can still be used to deceive others.
The term “knockoff” is often used as a substitute for “counterfeit.” But the terms aren’t exactly synonymous. Some knockoffs might imitate an established product without infringing. That could be the case because the underlying work—a dress, for example—cannot be protected under the law, meaning that a knockoff doesn’t violate any legal rules.
The marketplace is littered with millions of counterfeits relating to brands like Gucci, Louis Vuitton, and Dolce & Gabbana. The Zippo lighter has been the target of massive counterfeiting—depending on where you are in the world, the percentage of fake Zippos can be between 5% and 50%. The ripoffs eventually cut into sales, generally causing revenues to drop by 25% and forcing the company to lay off 15% of its employees.
Let’s go back to our opening questions. The short answer is that selling counterfeit goods is a bad idea for a business. There are three big problems:
(1) If the trademark owner chases you, you can quickly lose all of your business investments and assets (all your fake Gucci bags) and much more (you may be pursued for your personal property and home).
(2) There’s no predictability to your business because your success is tied to not being discovered by the trademark owner.
(3) You’ll need an illegal connection to obtain or import these products.
Most illegal distributors are caught as a result of online sales (for example, eBay has powerful anti-counterfeiting rules and will banish violators), or because someone (sometimes a disgruntled customer or competitor) reports them. Trademark owners will pursue you, and if they find you, they will seek to make an example of you. In other words, it’s a little like cheating on your taxes. You might get away with it for a while, but when you’re discovered, very bad things are likely to happen.
Proving trademark infringement is easier when dealing with counterfeits because there is usually no need to conduct a factor-by-factor analysis of likelihood of confusion. Courts have said that, by their very nature, counterfeit goods cause confusion. (Gucci Am., Inc. v. Duty Free Apparel, Ltd., 286 F. Supp. 2d 284 (S.D.N.Y. 2003).)
The remedies for trademark counterfeiting under the Lanham Act are much harsher than for traditional trademark infringement. Unless a court finds some mitigating circumstances, intentionally using a counterfeit mark (and related behavior) may lead to an award of three times the profits or damages (whichever is greater), plus reasonable attorney’s fees. (The counterfeiter must have duplicated the trademark on the kind of goods or services for which the trademark was federally registered. That means that, for example, it’s not counterfeiting to put the Gucci mark on automobile seat covers, as these are not goods for which Gucci has a registered trademark.)
A mere offer to sell counterfeit products can also trigger counterfeiting liability. For example, an individual offered to sell counterfeit jeans and provided a sample to an undercover police officer. Proof of actual production or sale of the jeans wasn’t necessary to prove counterfeiting.
Similarly, an Internet Service Provider (ISP) that hosted several websites selling fake Louis Vuitton merchandise could be liable for contributory infringement. The district court likened the ISP in this case to a proprietor of the flea market found liable for contributory infringement. (Louis Vuitton Malletier v. Akanoc Solutions, 591 F.Supp.2d 1098 (N.D. Cal. 2008)).
If you get a cease-and-desist letter, the following scenarios are possible:
Note that the Catch Me If You Can scenario isn't very likely at all. If you continue to sell without either fighting the letter or otherwise responding, the lawyer will most likely pursue you.
Converting your business to an LLC or corporation can establish limited liability and will shield you from personal liability in some instances, meaning that the lawyers can only go after your business assets. But your liability is likely to be tied to your status at the time of the infringement. So, if you were a sole proprietor when you got a cease-and-desist letter, then you're probably going to be treated that way (personally liable) in court, even if you later convert to an LLC or a corporation. In addition, keep in mind that the LLC/corporate “shield” also won't protect you if you:
If you get a cease-and-desist letter, you need to determine whether the lawyers are right—that is, whether whatever you sell infringes. If yes, you should abandon the infringing items. If you're not infringing, you should consider whether you want to fight or move on. If you fight, you may be able to have some luck fighting takedown notices, but keep in mind that if you're dragged into court, you'll be hit hard in your bankroll, and the only guaranteed winners will be the lawyers.
]]>It’s against the law in every U.S. state to treat animals cruelly. State laws usually prohibit several different kinds of mistreatment, from torturing or maiming an animal to not providing proper food and shelter. Traditionally, these statutes were fairly general, and the penalties amounted to little more than a slap on the wrist. But in response to repeated news stories about abused dogs—and the accompanying public outcry—lawmakers have been stiffening the penalties and targeting more specific behaviors. For instance, several states now include detailed requirements when dogs are confined or left tethered outside, and serious or repeated abuse often leads to felony charges. Some states have separate laws that apply only to dogs (or dogs and cats). Also, many cities and counties have local ordinances that are stricter than state laws.
Although animal cruelty laws vary considerably from state to state, these statutes typically outlaw the most recognized forms of abuse—torture or mutilation—as well as neglect and abandonment.
Typically, animal cruelty laws prohibit torture, mutilation, overworking, and killing any animal unnecessarily or cruelly. Some states require that the abuse be intentional or malicious, while others increase the penalties when the abuse is reckless or malicious. Many statutes also explicitly outlaw poisoning an animal deliberately or placing poison where someone else’s animal is likely to eat it.
Almost all states also make it illegal to neglect an animal. In many states, neglect simply means not providing necessary food, water, and shelter. Several states go further by requiring that owners also give their animals needed veterinary care, exercise, sanitary conditions, and protection from the weather. But some laws add conditions that could make it hard to convict someone of animal neglect. In Washington State, for example, pet owners may face misdemeanor charges if they don’t give their animals needed shelter, sanitation, space, rest, or medical attention—but only if the animals suffered unnecessary or unjustified pain as a result, and only if the owners acted intentionally, recklessly, or with criminal negligence. And Washingtonians can defend themselves against neglect charges by proving that their own financial distress prevented them from caring properly for their pets. (Wash Rev. Code § 16.52.207.)
More and more states have added details on conditions that amount to criminal neglect when dogs are left outside, whether chained up or in fenced yards. For instance, Pennsylvania law says that dogs can’t be tethered outdoors for than 30 minutes in freezing or very hot weather. The tether must be a certain type and length, attached to a certain kind of collar. The dog must be tethered in clean conditions with access to water and shade. (18 Pa. Cons. Stat. § 5536.) New Jersey also prohibits leaving animals outside in bad weather for more than a half hour, and its law spells out detailed requirements for shelters, including the amount and quality of the space, light, cleanliness, construction, ventilation, and protection from the elements (N.J. Stats. Ann. § 4:22-17.1 (2018)).
In most states, it’s illegal to abandon an animal, whether by dumping it in a public place or leaving it anywhere without providing for its needs. However, it’s very difficult to enforce laws against animal abandonment, since the owners are unlikely to leave a license or other identification on the abandoned pet. Just about all witnesses can do is report license plate numbers to police.
Many state laws specifically forbid leaving a dog or cat unattended in a vehicle under harmful conditions—which usually means that it’s too hot or cold inside the car. A handful of states, including California and Florida, have “Good Samaritan” laws that allow bystanders to break into locked cars to rescue animals in distress, but only if it’s necessary and only after they’ve taken steps like contacting law enforcement (see Cal. Penal Code § 597.7, Fla. Stat. § 768.139.)
Even where animal cruelty laws don’t explicitly address leaving animals in cars, it could be illegal under a catch-all provision that outlaws cruel treatment or any abuse that leads to unnecessary suffering. In reality, however, authorities are unlikely to press charges unless a pet died as a result.
It is still the fashion, among those who breed and show certain kinds of dogs, to cut off part of the ears and tails of puppies. It’s outlawed in many other countries but legal in most of the United States. Massachusetts makes it a crime to show a dog with cropped ears unless a veterinarian has certified that it was necessary (Mass. Gen. Laws ch. 272, § 80B). Several states require that ear-cropping or tail docking be done by a vet, with anesthesia. Other states outlaw other procedures that aren’t medically necessary—like cutting a dog’s vocal cords or, in New York, giving your pet cosmetic tattoos or piercings (see N.Y. Agric. & Mkts. Law § 353-f).
Almost all states make it a felony to participate in organized dogfighting. In addition to actually putting a dog in the ring, it’s also generally illegal to own or train fighting dogs, to allow a fight on your property, to bet on a fight, or even to be present where you know that a dogfight is happening. (In many states, however, attendance at fights is only a misdemeanor.) Most states also criminalize involvement in cockfighting.
Federal law also punishes participation in animal fighting, if the animal was moved across state lines to fight (7 U.S.C. § 2156).
When people collect far more pets than they can care for properly, the animals usually end up suffering from malnutrition, crowded and unsanitary conditions, and untreated health problems. Although some cities and counties have local ordinances that forbid animal hoarding, states generally don’t treat it as a separate crime. Hoarders may face misdemeanor (or occasionally felony) charges under general animal cruelty or neglect statutes, but they usually continue with their compulsive behavior even after they’ve had to pay fines. Most mental health experts agree that animal hoarding is a psychological disorder. A few states like Illinois and California authorize courts to order mental health evaluations and treatment in appropriate cases (see 510 Ill. Comp. Stat. § 70/3 and Cal. Penal Code § 597(h)).
Many animal cruelty laws excuse anyone who injures or kills a dog that was attacking a person or another animal. In fact, owners are usually financially liable when their dogs injure livestock.
Animal cruelty laws also typically include exceptions for legal activities such as:
Even if an animal cruelty law doesn't say so explicitly, it may not apply if the mistreatment was inflicted for what the law considers a good reason.
If you see or suspect that someone is mistreating animals, contact the local humane society. In many states, humane society agents have the authority to investigate complaints and even seize animals that are being abused. If not, staffers can usually tell you if local law enforcement is likely to act on the problem. Even if the owner’s behavior isn’t illegal, the humane society may be able to do something to help. You can also file complaints with the city police or county sheriff.
If you’re the one being accused of animal cruelty, it would be a good idea to contact a criminal defense attorney as soon as possible. An attorney experienced in this area should be able to explain how state and local laws apply to your situation, how you might recover your pet if authorities have already taken it, and any defenses you might have to criminal charges.
]]>While the definition of arson can vary from state to state, arson is generally the intentional and malicious act of burning or setting fire to another person’s property.
Some might think arson has to involve the burning of a house or some kind of building. In most states, though, it doesn’t: Setting fire to personal property (for example, cars, boats, or machinery) will qualify.
Someone can also commit arson by setting fire to land. In many states, deliberately starting a forest fire or burning a farmer’s crops can result in an arson conviction.
The usual “elements” of arson include the act of starting a fire, the intent to start the fire, and damage to property caused by the fire.
Starting the fire. Obviously, someone has to set fire to property to be guilty of arson. The method used to start the fire is irrelevant, so long as the fire was intentionally or recklessly set (see “Intent” below). An arsonist can use a match, a lighter, or even explosives to directly set fire to the property. And someone who indirectly sets a fire can also be convicted of arson. Suppose, for instance, a man starts a fire in one building while intending for it to spread and damage a neighboring building. The man can be convicted of arson for burning the second building even though he didn’t directly ignite it.
Intent. To commit arson, someone starting a fire usually must intend to start it. In some states, deliberately setting the fire is enough to show intent, but in other states, the person must also intend to damage property or know that the damage will likely result. And in some states, even when the fire isn’t intentional, it can still result in an arson conviction if the person recklessly started it. An example of recklessly starting a fire would be throwing fireworks (like cherry bombs) into a dry, grassy field. Disobeying local fire ordinances, such as those restricting bonfires or campfires, can also lead to arson charges if the fire spreads and causes damage.
Property damage. For an arson conviction, the fire must result in some kind of damage. The damage usually doesn’t have to be severe, though. In most states, even minor property damage can result in an arson conviction.
In many states, burning your own property can be arson under certain circumstances. Under Illinois law, for example, a person who burns insured personal property worth $150 or more, with the intent to deceive the insurance company, has committed felony arson. (720 Ill. Comp. Stat. § 5/20-1 (2022).)
Arson laws and penalties vary by jurisdiction. In some states, arson can be either a misdemeanor or a felony, while in others it’s always a felony. Many states divide arson into degrees of severity, depending on factors such as:
Typically, arson statutes provide stiffer penalties if a structure is occupied at the time of the fire or if the fire otherwise has the potential to harm people. For example, in Oklahoma, deliberately burning a residence or any occupied building can result in up to 35 years in prison and a fine of as much as $25,000. (Okla. Stat. § 1401 (2022).)
And if people are seriously injured or killed in the fire, the arsonist could face additional criminal charges, like mayhem, manslaughter, or murder.
In some states, arson that leaves only minimal property damage can result in a misdemeanor conviction. Under Utah law, for instance, arson causing property damage of $1,500 or less is a misdemeanor. A misdemeanor arson conviction in that state can lead to a maximum of one year in jail and a fine of up to $2,500. (Utah Code §§ 76-3-204, 76-3-301, 76-6-102 (2022).)
Whether defenses apply to arson charges depends on the circumstances and the arson laws of the state where the fire happened. Below are some defenses that might come into play, depending on the facts of the case.
A common defense to arson is that the fire was an accident, meaning the “intent” element described above isn’t there. Perhaps the fire started with an unattended candle or a greasy pan on the stovetop, for example.
But the accident defense won’t work if the defendant’s actions were reckless. For instance, if the defendant was burning leaves right next to a neighbor’s house on the windiest day of the year, an argument that the house fire was an accident probably wouldn’t succeed.
Also, it can be hard to win with the defense of accident because prosecutors usually call experts in arson cases. Arson experts apply scientific techniques to determine whether accelerant (such as lighter fluid) was used and whether other factors, such as the pattern of the fire, show the fire was intentional.
When people are so drunk or high that they don’t intend the consequences of a fire they cause, they might be able to use intoxication as a defense. The defense only applies in states that have “specific intent” arson statutes, meaning the defendant has to intend not only to start the fire, but also to damage property. For example, in a state with a specific intent statute, if someone started a small fire inside to keep warm but was so drunk that she didn’t realize it could cause the building to burn, the defense of intoxication might apply.
If you’ve been charged with arson or any other crimes, talk to a criminal defense lawyer right away. It’s important to have an attorney with significant criminal defense experience.
A local, experienced lawyer will know the prosecutors and judges in the court your case is in, and can advise you how the case will move through the system. The lawyer should also be able to determine if any defenses apply and give advice on whether a plea bargain or a trial is the best option.
]]>The precise definition of eluding a police officer can differ somewhat from state to state, but the offense is basically a driver intentionally disobeying a law enforcement officer’s command to stop. Some examples of “evading” include:
Some states have statutes that specifically prohibit drivers from eluding a police officer. Florida, for example, has a law barring drivers from “fleeing or attempting to elude a law enforcement officer.” (Fla. Stat. § 316.1935 (2022).) Other states, such as New Mexico and West Virginia, include the offense as part of a broader “resisting” or “obstructing” statute. (N.M. Stat. § 30-22-1; W.V. Code § 61-5-17 (2022).) Still, others refer to the act as fleeing an officer. (Minn. Stat. § 609.487 (2022).)
As described above, the crime of evading police requires that an officer give a command to stop and the defendant knowingly disobeys that command.
Knowledge. Fleeing from an officer—on its own— isn’t always a crime. For instance, a driver who gets nervous driving near the police and therefore decides to exit the freeway upon seeing a patrol vehicle might not have broken the law. Courts have tended to hold that a driver must know that an officer has issued a command to stop in order for “flight” to become a crime.
Form of command. In many states, an officer’s command to stop doesn’t have to be oral. For example, an officer can order a stop by using a hand signal or displaying a badge. A police car’s flashing lights or sirens are also considered commands. (Generally, the officer has to be on duty and identifiable as law enforcement, whether by uniform, badge, or marked police car.)
Passengers. Some courts have held that even someone who wasn’t driving when an officer ordered a stop can be convicted of evading. For example, a passenger who urges the driver to take off after an officer orders a stop could be guilty.
Penalties for eluding or evading a police officer vary by state. In some states, such as Virginia, the crime can be either a misdemeanor or a felony. In that state, if a driver simply disobeys an officer’s order to stop, the crime will likely be charged as a misdemeanor. On the other hand, the crime can result in a felony charge if the driver:
A felony eluding conviction in Virginia can result in up to 10 years in prison and a fine of as much as $100,000. A misdemeanor conviction in that state carries the possibility of six months’ jail time and a fine of up to $1,000. (Va. Code §§ 18.2-10, 18.2-11, 46.2-817 (2022).)
In other states, such as Michigan, eluding law enforcement is always a felony, carrying potential penalties of up to 15 years in prison and a fine of as much as $10,000. (Mich. Comp. Laws § 257.602a (2022).)
The specific elements of crimes and their potential punishments depend on your jurisdiction. For more information on evading an officer, or to learn about the laws in your area, consult an experienced criminal defense attorney.
]]>Theft is a crime against property, whereas robbery is a crime against a person. Robbery encompasses a theft (or attempted theft) plus force or intimidation. It is the use or theft of force that makes robbery, in most cases, the more serious crime.
This article will review the definitions and penalties for theft and robbery, along with the similarities and differences between the two crimes. (Burglary also shares similarities with these two crimes. To learn more, check out this article on the differences between robbery and burglary.)
Theft—called larceny in some states—is a broad term that can cover a wide variety of criminal offenses. For example, shoplifting and stealing a motorcycle are both forms of theft.
The typical elements of theft or larceny are a person:
While most people associate theft with taking property, the crime can also involve the stealing of services or even someone's identity. Other common types of theft include fraud and embezzlement.
In many states, theft or larceny can be either a felony or a misdemeanor, depending on the type of stolen property or its value. Misdemeanor thefts might be referred to as petty or petit theft and involve stolen property valued under $1,000 or $2,000. A person convicted of petty theft might face up to a year in jail or spend time on probation. Felony thefts—also called grand theft—involve any amount over the misdemeanor threshold. Grand theft can involve a wide range of sentences from a couple of years to a decade or more in prison. States vary considerably when it comes to theft penalties.
Robbery refers to stealing or attempting to steal something from a victim by force or intimidation.
The typical elements of robbery are someone taking money or property:
A robbery could involve a bank holdup, carjacking, or even a purse snatching.
In most cases, robbery is a felony, and a conviction can result in significant prison time, especially if a weapon was involved (armed robbery). A person convicted of robbery could easily face a 10- to 30-year prison sentence. Generally, sentencing laws also consider robbery a crime of violence. In some states, a crime of violence conviction impacts probation or parole eligibility, enhances charges for future crimes, or carries mandatory sentences.
Robbery and theft differ in several respects, but the key difference that makes robbery the more serious offense is the potential for physical harm to a victim.
Person vs. property offense. As noted above, theft is a crime against property, whereas robbery is a crime against a person. This factor alone makes robbery more serious than theft.
Violent vs. nonviolent offense. Both theft and robbery involve taking or attempting to take money or property without permission. But theft doesn't involve violence, whereas the crime of robbery requires force or the threat of force.
Victim presence. Robbery, unlike theft, entails taking property directly from or in the presence of a person, which places the victim in the path of direct harm.
Penalties. The penalties for theft and robbery reflect the potential for physical harm and violence to a victim. Robberies generally start as felonies, and a defendant convicted of robbery will likely see prison time. Thefts, on the other hand, can result in misdemeanor penalties. Even for felony theft, a person may potentially receive probation and spend little time behind bars.
The elements of crimes and their potential punishments can vary from state to state. For more on the differences between theft and robbery, or to learn about the laws in your area, consult an experienced criminal defense lawyer.
]]>This article discusses disorderly conduct and public intoxication crimes, whatever they might be called where you live.
Disorderly conduct laws allow police officers to arrest people whose public behavior is disruptive or offensive or whose actions interfere with other people's enjoyment of public spaces—often because of the offender's use of alcohol or drugs. But remember that in many states, a criminal charge of disorderly conduct does not require the offender's use of alcohol. Any kind of disruptive conduct—including loitering, fighting, being unreasonably noisy, and otherwise disturbing the peace—can fall under the definition of disorderly conduct depending on how the crime is defined in the state's criminal statutes.
To get an idea of some of the kind of behavior that might be covered under disorderly conduct statutes, check out this excerpt from California's Penal Code (Section 647):
647. Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:
(a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.
(b) Who solicits or who agrees to engage in or who engages in any act of prostitution....
(c) Who accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms.
(d) Who loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act.
(e) Who lodges in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it.
(f) Who is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of [these], in a condition that they are unable to exercise care for their own safety or the safety of others, or by reason of being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of [these], interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.
Most (but not all) states have laws that make it a crime to be intoxicated in public (whether due to alcohol consumption, drug use, or both), although some state laws require some kind of accompanying disruptive public behavior (similar to disorderly conduct) or danger to one's self or another. In states where no specific public intoxication law exists on the books, law enforcement officers may have the discretion to detain people who are intoxicated at a debilitating level and let them sleep it off in a local jail cell.
Purpose. Public intoxication laws are meant to protect the safety of someone who is intoxicated, and more generally protect society's interest in the unobstructed and safe use of sidewalks, parks, shopping malls, restaurants, and virtually any space outside one's home that is open to the public.
States that have public intoxication laws generally impose fine-only and low-level misdemeanor penalties. Here are some examples.
In Texas, the law makes it a class C misdemeanor to be in public and intoxicated to the degree that one could harm oneself or another. Class C misdemeanors are fine-only offenses punishable by up to $500. (Tex. Penal Code § 49.02 (2021).)
Pennsylvania makes it a summary (fine-only) offense to be publically intoxicated to the degree that the person may endanger persons or property or annoy others in the vicinity. A person faces up to a $500 fine for a first offense and $1,000 for any subsequent offenses. (18 Pa. Cons. Stat. § 5505 (2021).)
Indiana has a similar law but it requires that the person be a danger to him or herself or another, breach the peace (or be really close to doing so), or harass or annoy another person. Public intoxication is a class B misdemeanor, punishable by up to 180 days in jail, and a $1,000 dollar fine. (Ind. Code § 7.1-5-1-3 (2021).)
In most states, disorderly conduct and public intoxication are considered misdemeanors and are punishable by fines, alcohol education programs, community service, probation, and jail sentencing of less than one year of incarceration—although any jail sentence that's handed down is usually much shorter, and in many cases, incarceration can be avoided altogether. To learn more about punishments and sentences in criminal cases, check out Nolo's Criminal Sentencing FAQ.
For everything you've ever wanted to know about the criminal justice system—from searches to sentencing—get The Criminal Law Handbook, by Paul Bergman and Sara Berman (Nolo). And, if you need more personal help after an arrest or other run-in with the criminal justice system, use Nolo's trusted Lawyer Directory to find an experienced criminal law attorney near you.
]]>Another common scenario occurs where a check recipient agrees to accept a postdated check in exchange for goods or services, even though the maker of the check has informed the recipient that the checking account will not contain adequate funds to cover the check until the date used on the check. Upon receiving a postdated check, the recipient (such as a merchant or wholesaler) will provide the goods or services. But, what if the recipient attempts to cash the postdated check at the future date, but the check bounces? Has a crime been committed?
A person writing a postdated check may violate the law if the check is returned by the bank to the recipient because the maker’s account does not have the funds on deposit necessary to cover the check. Although worthless check laws can vary somewhat from one state to another, all states make it illegal for a person to write a worthless check with the intent to defraud a person or business of goods or services. The maker of the postdated check must have the intent to defraud at the time of writing the postdated check. Therefore, a defendant who writes a postdated check that is returned because of insufficient funds will not be convicted of writing a worthless check unless the prosecutor is able to prove that the defendant wrote the postdated check with the purpose of defrauding the recipient or with the knowledge that the check would not be honored at the later date used on the check.
(“Postdated Checks: An Old Problem with a New Solution in the Revised U.C.C.,” 14 U. Ark. Little Rock L.J. 37;Young v. State, Ga. App. 425 (2004)).
How can a prosecutor win a guilty verdict if the prosecutor must prove that the defendant had the intent to defraud the recipient of the postdated check? In some cases, direct evidence may exist that proves that the defendant wrote the postdated check with the intent to cheat the recipient out of goods or services. For example, at trial, a witness might recount a defendant’s statement made to the witness admitting that the defendant wrote the victim a worthless check in order to get the victim to provide the defendant something of value. In such cases, the defendant’s admission, if believed, would provide the required proof of the defendant’s criminal intent to defraud the victim with a postdated check.
What about cases involving postdated checks where direct evidence of the defendant’s knowledge or intent to defraud does not exist? Typical worthless check laws are written so that the criminal intent requirement necessary for a conviction is satisfied if the prosecutor proves the existence of one or more conditions or facts specified by the statute. For example, under Georgia’s deposit account fraud statute, the defendant is presumed to have written the check with the knowledge it would bounce if:
The fact that a postdated check is not honored because of insufficient funds does not, by itself, establish that the maker of the check committed a crime; the prosecutor must prove that the defendant had the intent to defraud at the time of writing the worthless check. Under Georgia law, proof of any of the above-listed conditions will satisfy the intent element of the crime that is necessary for a conviction.
Other states have laws that similarly allow a judge or jury to presume that the defendant had the intent to defraud with a worthless check if certain facts are proven. For example, Maine law allows the presumption of the intent to defraud with a bad check where the writer of the check fails to make good on the bad check within five days of receiving notice that the check bounced; the same statute also presumes intent where the defendant does not have an account with the bank that the check is drawn on at the time the defendant writes the check.
(Ga. Code § 16-9-20; Me. Rev. Stat. 17-A-708).
Punishment for committing check fraud, including fraud committed with a postdated check, can vary from state to state, but the laws typically authorize fines, probation, and even imprisonment. A defendant also will have to make restitution to the victim for goods or services received with the bad check.
In many states, the severity of the crime is determined by the dollar amount of the worthless check or checks. For example, in Colorado, a conviction for writing a bad check for $500 or less (or two or more bad checks within a 60-day period that total less than $500) is punished as a Class 2 misdemeanor, a single check for (or two or more bad checks written totaling) $500 or more but less than $1,000 is considered a Class 1 misdemeanor, and a single check (or two or more checks written within 60 days that total) over $1,000 is punished as a Class 6 felony. Class 2 misdemeanors carry up to 12 months in jail and a $1,000 fine, while Class 1 misdemeanors carry a maximum of 18 months in jail and a $5,000 fine. A Class 6 felony carries also carries a minimum of a year and a maximum of 18 months in prison and a fine.
In Tennessee, a bad check for less than $500 is a Class A misdemeanor, while a check for $500 or more is classified as one of five degrees of felonies depending on the check amount. Checks for $500 or greater but less than $1,000 are considered Class E felonies, which carry up to six years in prison and a $3,000 fine, while the most serious felony designation, Class A, is reserved for checks of $250,000 or more. Conviction for a Class A felony carries a maximum of 60 years in prison and a $50,000 fine.
In addition to criminal penalties, state laws authorize civil fines for writing bad checks.
(Colo. Rev. Stat. § § 18-1.3-401, 18-1.3-501, 18-5-205; Tenn. Code § § 39-14-105, 39-14-121, 40-35-111)
]]>For detailed information about statutory rape, including state-specific laws, see Statutory Rape Laws and Penalties.
For purposes of rape laws, sexual intercourse occurs at the moment of sexual penetration, however slight, by the male sexual organ. However, some states have expanded the definition of rape to include nonconsensual penetration by other body parts or objects; rape statutes may also prohibit unwanted fellatio, cunnilingus, and anal intercourse.
Perhaps the best known form of rape is forcible rape, which typically involves force or threats of violence to accomplish sexual intercourse. In most states, however, rape can also occur in a number of other ways. For example, rape generally also consists of sexual intercourse where the rapist:
Degrees of rape. Some states divide rape into degrees. First degree rape may consist of rape accompanied by severe physical injuries; it carries a harsher punishment than second degree rape, which may involve no physical injuries beyond the rape itself.
Rape between married partners. In most states, if sexual intercourse is nonconsensual, the fact that the parties are married is irrelevant. Of course, the fact that an alleged rapist is the victim’s husband may—depending on the facts—make it more difficult to establish that rape rather than consensual intercourse took place.
Facts: Belinda is sleeping when Stan breaks into her apartment, pulls out a knife, and threatens to use it unless Belinda agrees to sexual intercourse. Belinda pleads with Stan to leave, but he refuses and begins to strike her. Eventually Belinda gives Stan a condom and says, "At least use protection." Stan uses the condom while having sexual intercourse with Belinda.
Verdict: Stan is guilty of rape. The sexual intercourse was forcible, not consensual. Belinda's request that Stan use a condom is not evidence of consent, but rather an effort to suffer as little harm as possible.
Facts: Amanda goes out to dinner with her boss, Fred. After dinner, Fred suggests that "we go back to my office and enjoy ourselves." Though Fred hasn't acted roughly or threatened her, Amanda has heard that he has been violent in the past. Fearing both that Fred may hurt her and that her career may suffer if she doesn't go along, Amanda agrees to go back to the office and has sex with Fred.
Verdict: Fred isn't guilty of raping Amanda. Her subjective fear based on what she has heard about him doesn't invalidate her consent. (On the other hand, though, Amanda may have a valid civil claim against Fred and the company for workplace sexual harassment. (Learn more in Fighting Sexual Harassment.))
Until the mid-1970s, evidence rules tended to discourage rape victims from reporting the crime. Since then, largely as the result of political pressure from women's rights groups and their allies, there have been dramatic shifts in rape-evidence law; these shifts favor alleged victims. First, rape-shield laws often prevent defendants from inquiring into rape victims' sexual histories, except under limited circumstances. (See Rape Shield Laws: Protecting Sex-Crime Victims.) Second, when it comes to sexual offense cases, most states have abandoned the general rule forbidding inquiry into defendants' past sexual crimes. When a defendant is charged with rape or another sexual offense, the prosecution can typically offer evidence of any past sexual offenses.
What some call "stranger rape" occurs when a previously unknown person attacks the victim. An example is an assailant violently dragging a passerby into a secluded spot and raping her. “Date rape” occurs when the rapist and the victim have an existing social relationship and the rapist strikes in the course of that relationship. For example, a date rapist may prevent a woman from refusing sex by drugging her drink while the two are out on a date.
Reports indicate that date rape is far more common than stranger rape. But the ambiguities inherent in many social situations often make date rape more difficult to prove.
If you face criminal charges for rape or any other offense, consult an experienced criminal defense lawyer. An experienced attorney can fully explain the applicable law and analyze your case. Beyond advice and analysis, a knowledgeable lawyer is uniquely equipped to protect your interests.
One good way to find a criminal defense lawyer is to ask friends, acquaintances, or other lawyers for referrals—and then interview the candidates. In addition, Nolo provides a Lawyer Directory with detailed information about each attorney. By using Nolo's directory, you can narrow down candidates before calling them for a phone or face-to-face interview.
]]>This article will cover the basics of drug laws and drug crimes in the United States, including how and who determines a drug’s legal and illegal uses. Read on to learn more or use the following links to jump to a topic of interest:
Federal and state laws determine the legality (or not) of a drug based on its medical uses and potential for abuse, safety, and dependency.
In the 1970s, the federal government created a tiered system, under the Controlled Substances Act, that organizes drugs into five “schedules”—Schedules I to V. The most dangerous drugs fall under Schedule I and the least dangerous are in Schedule V.
The government assigns each drug a schedule. A drug goes into Schedule I if the government considers it to have no medical uses and a high potential for abuse or harm. Schedule II drugs are considered to have medical uses but still carry a high potential for abuse. Drugs with a moderate potential for abuse go into Schedule III, and so on down to Schedule V.
States have their own drug laws, but many follow the federal schedules for most drug classifications. Some notable exceptions are classifications for marijuana and certain psychedelic drugs. For instance, the federal government still considers marijuana a Schedule I drug, but many states have either taken it out of their schedules or classified it differently. Some states also use different classifications for psychedelic drugs that show potential for certain medical treatments.
With the exception of Schedule I drugs (which are deemed to have no medical use), a person can legally possess and use Schedule II to V drugs with a valid prescription. Possession of these same drugs without a prescription, though, is a crime, as is not taking the drug as prescribed.
For example, amphetamines are used to treat attention deficit disorder, barbiturates help treat anxiety, and fentanyl is used for anesthesia. But unprescribed or unsupervised use of these substances (and many others) is considered a crime.
Here are examples of various drugs and their placement in the federal drug schedules. Schedule II, III, IV, and V drugs are legal with a valid prescription.
Schedule I drugs are considered to have no medical use and a high potential for abuse. Under federal law, these drugs are always illegal (meaning a prescription isn’t an option). Some examples of Schedule I drugs include heroin, LSD, MDMA (ecstasy), and marijuana.
Schedule II drugs have an accepted medical use but are considered dangerous and highly addictive. While these drugs are available by prescription, they are highly regulated, such as oxycodone, fentanyl, Adderall, meth, and cocaine.
Schedule III drugs have a low to moderate potential for abuse. Examples include Tylenol with codeine, ketamine, steroids, and testosterone.
Schedule IV drugs have a low potential for both abuse and addiction. Examples of Schedule I drugs include Xanax, Valium, and Ambien.
Schedule V drugs have the lowest potential for abuse and often include cough suppressant preparations with low amounts of codeine.
In both the federal and state criminal legal systems, most drug cases stem from charges of possession, manufacturing, or trafficking of controlled substances. Below you'll find a brief overview of these offenses, as well as an explanation of some key terms related to drug crimes.
Controlled substance is the legal term for drugs. When a federal or state government classifies a certain substance as "controlled," it means that the use and distribution of the substance are governed by law.
As a drug charge, "distribution" usually means that a person is accused of selling, delivering, or providing controlled substances illegally. This charge is often used if someone tries to sell drugs to an undercover officer. Trafficking generally refers to the illegal sale or distribution of a controlled substance. Despite the name, trafficking has less to do with whether the drugs cross state lines and more to do with the amount of drugs involved.
Under federal and state drug laws, the government can charge a person for playing a part in the cultivation or manufacture of a controlled substance. Cultivation includes growing, possessing, or producing naturally occurring elements in order to make illegal controlled substances, such as poppy or marijuana plants. A person can also be charged for producing or creating illegal controlled substances through chemical processes or in a laboratory. Substances created this way include LSD, cocaine, and methamphetamine.
The most common drug charge—especially in arrests made under local drug laws—involves possession of a controlled substance. Generally, for a possession conviction, the government prosecutor must prove that the accused person:
Charges for simple possession are often less serious than charges for possession with an intent to distribute. The difference here doesn't necessarily turn on an actual intent to distribute but rather on the amount of the substance found in the defendant's possession. Smaller amounts suggest the possession is for personal use only, whereas larger amounts suggest possession with an intent to sell.
A possession charge can be based on actual or "constructive" possession of a controlled substance. Constructive possession means that even if the defendant doesn't actually have the drugs on their person (in a pocket, for example), a possession charge is still possible if the defendant had access to and control over the place where the drugs were found (a locker, for example). The theory of constructive possession is often used when illegal drugs are found in a car during a traffic stop.
In many states, it’s also illegal to possess paraphernalia associated with drug use, such as syringes, cocaine pipes, bongs, and scales. In fact, being found in possession of these objects—even without any actual drugs—may be enough for a person to be charged with a crime.
For decades, lawmakers at the federal, state, and local levels have all stepped in to regulate the use, abuse, manufacture, and sale of drugs. When these laws conflict, federal law typically controls and trumps state and local laws. But, as we’re seeing with marijuana and psilocybin, sometimes the feds are willing to look the other way.
Most low-level drug crimes are handled at the local and state levels. These crimes often include possession offenses, sales or manufacturing of small quantities, and drug offenses committed near schools and other vulnerable places. This isn’t to say state prosecutors and police won’t go after the kingpins; it’s more to say federal prosecutors are unlikely to go after the drug addict. Federal agencies and law enforcement tend to focus more on drug traffickers and large-scale operations, but their jurisdiction extends to all drug crimes.
Federal and state drug schedules are fairly consistent. But their penalties tend to be much different. Each state and the federal government has its own penalties for drug crimes, which vary by the type of offense (possession, sale, manufacturing) and the amount of drugs involved.
Many low-level possession offenses carry misdemeanor penalties, punishable by jail time of a year or less. The federal government classifies first-time drug possession offenses as misdemeanors.
Some states offer diversion for first-time possession offenses. Diversion allows offenders to maintain a clean criminal record by pleading guilty and then completing a substance abuse program and not committing additional offenses. If the defendant successfully completes diversion, the judge may vacate the guilty plea, dismiss the case, and potentially seal the record.
Sales, trafficking, and manufacturing offenses will typically carry felony penalties, which vary widely. Many states penalize more serious drug offenses by the individual type of drug and the amount involved. For example, in one state, it could be a 30-year felony to sell more than 10 grams of heroin and, in another, it’s a 15-year felony. Under federal law, this crime carries a maximum 20-year sentence, but if serious harm or death results, the punishment is 20 years to life in prison. Some states primarily group penalties by schedule rather than each individual drug, while others use a combination of select drugs and schedules to dole out penalties.
State and federal laws also enhance drug sentences based on a defendant’s criminal history of drug convictions, where the offense happened (such as a no-drug zone), and whether firearms were involved, among other factors. Selling or even giving drugs to a minor will likely come with an enhancement in most states.
The most common defense to a drug charge—especially drug possession charges—is arguing that police conducted an illegal search or seizure that led to finding the drugs. For instance, say police pulled the defendant over for a traffic violation and search the trunk for drugs on a whim. The defendant can ask the judge to exclude the drugs from evidence in the criminal case based on a Fourth Amendment violation. In most drug cases, the prosecution won't have a case without evidence of the drugs.
Other defense strategies include:
Winning on any of these arguments could lead to an acquittal or reduction of the charges.
If you’ve been arrested and charged with a drug crime, talk to a criminal defense attorney as soon as possible. Having legal representation is crucial to understanding the charges and protecting your legal rights.