10.6: End-of-Chapter Material

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End-of-Chapter Material

Robert Henderson

Summary

Assault and battery are often included in the same statute (called assault) but at common law they were separate offenses with distinct elements. Battery was generally a purposeful unlawful harmful or offensive touching without the victim’s consent. Assault was an attempted battery. Modern assault includes both assault and battery. Assaults are graded based on the extent of the injury, instrumentality of injury, and the culpable mental state. Misdemeanor assault normally involves minor injury or the reasonable apprehension of minor injury. Assaults are aggravated when a weapon is used or the resulting injury is serious.

Stalking is different from assault as it criminalizes the pattern of behavior that causes fear. Whereas assault requires the victim to be placed in imminent fear, stalking requires a series of repeated nonconsensual contacts that would place a reasonable person in fear of death or serious physical injury. Typical stalking behavior includes following the victim, continually calling or texting the victim, or randomly showing up at the victim’s workplace or residence uninvited. Stalking can raise constitutional concerns as it criminalizes conduct that, if conducted in isolation, would be permissible and lawful. Stalking survives constitutional attack, however, because it focuses on the assaultive nature of the defendant’s behavior.

Robbery is the purposeful theft of property from the victim’s person by force or the threat of imminent physical harm. Robbery is a crime of violence and not a crime against property. Extortion is the purposeful theft of property by a threat of future harm such as bodily injury or exposure of the victim’s crime or secret that subjects the victim to hatred, contempt, or ridicule. Extortion is a felony. Coercion is using force (or the threat of force) to compel a person to do (or abstain from doing) a lawful act. Coercion, like robbery and extortion, is a felony.

Kidnapping is the purposeful confinement and asportation (i.e., movement) of a victim for the purpose of obtaining a ransom, taking a hostage, inflicting injury or harm on the victim, interfering with the purpose of government or political function, or committing a separate felony. The defendant’s restraint of the victim must be more than merely incidental to the target crime. Courts use a multifactor test to determine if the level of force was incidental.

States vary as to how they categorize and grade sex offenses but all have their origins in common law rape. Common law rape was the unlawful carnal knowledge of a women by a man forcibly and against her will. This definition was very specific and very limited. Alaska categorizes its sex offenses into two separate groups – sexual assault and sexual abuse of a minor (statutory rape). Alaska has eliminated the requirement that the victim resists the sexual act. Alaska has also eliminated the exemption for spousal rape, among others. The modern criminal code recognizes that sexual violence need not be sexually motivated. The crux of sex offenses is that sexual activity occurred without the victim’s consent. Without consent requires coercion – the actual use or threatened use of force. Several groups of individuals are incapable of consenting to sexual activity by operation of law, including those who are mentally incapable, incapacitated, and under the age of consent. Sex offenses carry very harsh penalties and numerous collateral consequences. Alaska’s rape shield law governs the admissibility of evidence of the victim’s past sexual conduct during a sexual assault or a sexual abuse of a minor trial.

Key Takeaways

• At common law, assault and battery were separate and distinct crimes. Battery was the physical contact that resulted in injury or offensive touching. Assault was the attempted battery or intentionally placing another person in fear of a battery. Some jurisdictions still recognize the distinction.
• Alaska has consolidated assault and battery into the single offense classification of “assault.”
• Alaska recognizes four degrees of assault, each separated by the extent of injury, the instrumentality of the injury, and the defendant’s culpable mental state.
• Physical injury means a physical pain or an impairment of physical condition.
• Serious physical injury means serious and protracted disfigurement or impairment or a physical injury caused under circumstances creating a substantial risk of death.
• Dangerous instrument is an attendant circumstance that generally evaluates a misdemeanor assault to a felony assault.
• Dangerous instrument must create a risk of actual risk of death, not a hypothetical risk of death.
• To constitute assault, the victim must be injured or aware of the imminent threat of harm. The defendant need not purposely threaten a victim, but must at least act recklessly.
• Robbery requires a taking accomplished by force or threat of imminent force. Extortion requires a taking by the threat of future harm and coercion criminalizes a threat of force to compel a person to do (or not do) something they have the legal right to do (or not do). All three are crimes of violence, not crimes of property.
• There are two degrees of robbery. First-degree robbery includes all armed robberies; second-degree robbery includes all robberies in which force is used or threatened to be used. Robbery is an inherently dangerous felony for felony murder.
• Kidnapping is the intentional nonconsensual restraint of another person.
• Kidnapping is the purposeful confinement and asportation (movement) of a victim.
• The defendant’s restrain of the victim has to be more the merely incidental to the target crime.
• Common-law rape was a capital offense, did not include rape of a spouse, and required extreme resistance by the victim.
• Alaska has modernized its sexual assault statutes to criminal spousal rape, eliminate the requirement for extreme resistance, and make the statutes gender-neutral.
• Sexual assault requires the sexual activity occur without consent of the victim.
• The culpable mental state of sexual assault is knowingly engaging in sexual conduct with reckless disregard for the victim’s consent.
• Several groups are unable to consent by operation of law, including someone who is mentally incapable, someone who is incapacitated, and children.
• Sex offenses have very severe penalties, based on the harm caused to the victim and because of the belief that sex offenders are likely to recidivate. However, research shows that sex offenders are actually less likely to recidivate than other sorts of criminals.

Answers to “You be the Judge” Exercises

From “You be the Judge” in Assault:

1. A reasonable juror could find that Dulier used the flare gun in a manner that created a substantial risk that Sears would suffer serious physical injury, i.e., “physical injury that causes serious and protracted disfigurement, protracted impairment of health, [or] protracted loss or impairment of the function of a body member or organ[.]” Sears testified that if the other patron had not pushed him, the flare would have gone straight into his neck rather than ricocheting off the side of his neck. And even with this last-second intervention, Sears still had significant injuries: a bloody gouge, a burn, a bruise on his neck, a swollen throat, and difficulty speaking for several days. See Dulier v. State, 451 P.3d 790, 792 (Alaska Ct. App. 2019).

From “You be the Judge” in Stalking:

1. This hypothetical comes directly from Peterson v. State, 930 P.2d 414, 428 (Alaska App. 1996). The court explains that the skinheads would not be guilty of stalking even though,

   “the government could plausibly claim that the defendant, through repeated acts of nonconsensual contact as defined in AS 11.41.270(b)(3), has placed another person in fear of injury or death (either for themselves or for a family member). Further, the government could plausibly claim that the defendant consciously disregarded a substantial and unjustifiable risk that his conduct would have this result. Yet the defendant’s conduct was not directed at anyone; that conduct consisted of nothing more than riding the bus or pursuing a livelihood.”

From “You be the Judge” in Robbery:

1. In order to prove the crime of second-degree robbery, the State was required to prove that Moto was “taking or attempting to take property from the immediate presence and control of another” person, and that he “use[d] or threaten[ed] the immediate use of force” upon another person with the “intent to … prevent or overcome resistance to the taking … or the retention of the property.” Moto took the computer from Vesotski’s “immediate presence or control” because Vesotski was lying in bed and the computer was approximately ten to twelve feet away on his desk. Property is in a victim’s ‘immediate presence or control’ if the property is ‘close enough to the victim and sufficiently under his control that, had the victim not been subjected to violence, he could have prevented the taking. Also, Moto used force when he told Vesotski he would kill him if Vesotski did not put his head back on his pillow, or if Vesotski reported the incident to the police. These threats prevented Vesotski from retaining his computer. Moto v. State, 2010 WL 4138413 (Alaska App. 2010).

From “You be the Judge” in Sexual Violence:

1. Under the current definition of “without consent” this conduct would qualify as a third-degree sexual assault. AS 11.41.425(a)(7). The law does not require coercion, force, or the threat of force to qualify as “sexual contact with another person without consent of that person.” See id. This is a recent change to Alaska law. In 2022, the Alaska legislature changed the definition of “without consent”. Before the change, this conduct would not constitute a sexual assault. In State v. Townsend, 2011 WL 4107008 (Alaska App. 2011), the Court of Appeals explained that the phrase “without consent” under the prior law required the State to prove that the defendant did something more than the simple forcible touching. The State was required to show that the victim was compelled to submit to the sexual touching because the defendant coerced the victim to submit to the sexual assault by the use of force or the imminent threat of force. Thus, under the prior law, Townsend did not touch Tim “without consent” as that term was defined in the criminal code. “The evidence shows that, when Townsend assaulted him, [Tim] was not intimidated but reacted immediately to terminate the assault.” You can read the entire opinion online using your UA credentials.