Fundamentals of Criminal Law by Adam J. McKee

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In On Liberty, John Stuart Mill stated that “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”  For Mill and other Utilitarians, the entire purpose of the criminal law was to keep citizens from harm. While Mill, like many today, disagreed with the idea of victimless crimes, it is obvious that our legal system reserves its harshest punishments for those who harm others.   

In crimes where causation is a factor, it is obvious that something must be caused. Harm, then, refers to the specific result prohibited by the statute. In murder, for example, the result is the death of a living human being.  Often proving that the prohibited harm occurred is the easiest element for the prosecution to prove in a criminal case. A death certificate and an autopsy report, for example, will usually be sufficient to establish that a person was killed and what the manner of death was.  The harder part is linking the defendant to the act that ultimately ended with the victim’s death. It is relatively easy to show that a victim is dead and that a gunshot wound is the proximate cause of death, but it is harder to prove that the defendant pulled the trigger.

There are times, however, when demonstrating that the harm occurred can be difficult.  The most sensational of these is when a prosecutor goes forward with a murder prosecution in a case where a body was never found.  There are cases where prosecutors were able to win on circumstantial evidence, but these cases are noteworthy because of their rarity.  

Often harm cannot be proven in a case when the harm is relatively minor (when compared to homicide).  Say for example, that Bob is getting his rent money together for the month, and has it in cash in an envelope on his kitchen table.  Bob’s friend Bubba drops by and asks Bob to accompany him on a weekend of drinking and debauchery. Bob declines, explaining that he has too much to get done this weekend and that he will have to take a raincheck.   Bubba is hurt by his friends slight and throws his empty beer across the living room and storms out of Bob’s apartment. Bob knows that Bubba is irrational and dramatic when he’s been drinking, so he dismisses the incident and gets back to his errands.  As he goes to collect his rent money and deliver it to the landlord before the office closes for the day, he notices that the envelope is missing.

Bob realizes that Bubba must have taken the money to “get back at him” for “ditching him” and Bob decides to call the police.  Officers show up at Bob’s apartment and dutifully take his statement. He can tell that the officers are becoming less and less interested as the facts become clear to them.   The stolen money, while amounting to a felony because of the amount taken, was all in cash and has no identifiable characteristics.

The envelope had “rent” handwritten on the front of it, but to positively identify the writing as Bob’s and link it to the money would require the expert testimony of a questioned document examiner, which the crime lab would not supply in a case of simple theft.  There are no other circumstantial factors that suggest that anything criminal had taken place such as signs of forced entry, signs of a struggle, or an altercation between the two former friends. As the officers know from experience, the only way to make a case, under those circumstances, is for Bubba to confess that he took the money and say what he did with it.    

In our hypothetical situation above, Bob suffered an economic harm and will have trouble making the rent this month.  He is rightfully upset. The lack of sympathy from the officers that responded to the call comes from their knowledge of solvability factors and what they perceive to be a very minor offense.  Those unfamiliar with how criminal investigations work are often simultaneously shocked and offended when they hear about solvability factors and how they play into police work. This sort of thing is an affront to our sense of justice.  The uncomfortable truth is that limited human resources, limited financial resources, limited forensic support services, and limited education and training, solvability factors play a critical role in determining which cases are worked and which ones are relegated to the “cold case files” before they ever begin.  This fact underscores the critical differences between academic treatments of criminal law and the actual implementation of those laws in the field by criminal justice professionals.

More insidious examples of cases being dropped because the harm cannot adequately be proven  (or adequately linked to the defendant) are common in criminal justice practice. As a general rule, the more serious a crime is, the more likely it is to be reported to the police and thus become part of the official crime statistics.   While it is likely that many missing persons are the victims of foul play, the consensus is that we capture the vast majority of homicides in the official statistics. That is, we know about it when somebody winds up dead, and there is almost always an investigation as to the manner of the death.   At the other end of the spectrum are the situations like Bob’s. How do we know that Bob isn’t making the whole thing up to have an excuse to tell his landlord?

How do we know that someone other than Bubba didn’t steal the money?  Bob is absolutely sure what happened in his own mind, but convincing a jury that Bubba took the money to that same “degree of certitude” is a different matter.  People with “street smarts” will usually not bother reporting thefts like this to police. They know that they’ll never get the money back, and that police are powerless to help.   The bottom line is that people often do not report minor crimes to police, and this rate is correlated with the quality of the relationship that people in the victim’s neighborhood have with police.  Minorities in many areas make it a general policy to never voluntarily deal with police, and this rule extends to cases of victimization. When victims and witnesses will not talk to police, the solvability of crimes drops abysmally low.  When the police are never notified that a crime has taken place, the solvability odds drop to zero.

Among the most serious felony crimes, one stands out as an outlier that defies the general rule that serious crimes are usually reported to police:  Rape. Social scientific studies, most often using victim surveys, suggest that nearly half of all rapes go unreported. Victims are hurt, traumatized, and overwhelmed by negative emotions.  They know that the criminal justice process will require them to relive the traumatic experience several more times, and many are unwilling to undergo the process. Of those that report their victimization, many victims delay doing so.  

From the vantage point of a forensic scientist working for the crime lab, all rape victims should proceed immediately to the emergency room, and emergency room staff should be trained in how to do a “rape kit” (by becoming sexual assault nurse examiners).  Traumatized victims rarely think this way. Often they proceed to a shower and attempt to wash off the physical and emotional filth that their attacker has left behind. Tragically, this tends to wash away the majority of physical evidence. After days have passed, or when the victim uses a condom, the rape kits are all but useless.   Without confirmation DNA tests or a confession, it is very difficult to prove that the sex act ever happened. In other words, it is difficult to demonstrate that the prohibited harm occurred and that the defendant was the actor that caused the harm.  

Key Terms

But For Causation, Causation, Cause-in-fact, Concurrence, Harm Element, Objective, Proximate Cause, Sine Qua Non, Subjective, Year and a Day Rule  

References and Further Reading

“Causation.” New Dictionary of the History of Ideas.

Available: http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/causation

Modification History

File Created:  07/12/2018

Last Modified:  07/12/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


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