Chapter 10

1. Chapter 10 Vice crimes

2. Vice • Latin vitium meaning fault or defect • Criminal system associated with crimes against public decency or morality

3. Criminal prohibitions of consensual sex • Concerns with violation of right of privacy • Judicial decisions gave rise to constitutional principle that competent adults have the right to make their own decisions in matters of sex and reproduction

4. Fornication, Adultery, and Seduction • Fornication-sexual intercourse b/w unmarried persons • Adultery-sexual intercourse b/w male and female, at least one of whom is married to someone else • Both regarded as offenses against morality • Neither was common law crime unless done openly

5. Seduction-male obtains sexual intercourse with a virtuous female on the unfulfilled promise of marriage • Not crime at common law • Crime by statute

6. Sodomy • Committing acts that were once commonly referred to as “crimes against nature” • Oral, anal sex b/w humans or intercourse b/w humans and animals (often termed bestiality)

7. Incest • Sexual intercourse within or outside the bonds of marriage b/w persons related within certain prohibited degrees • Not a crime at common law but punished by ecclesiastical courts

8. Bigamy and Polygamy • Bigamy-marriage b/w two persons when one is already legally married to another • Polygamy-practice of one person being married to several spouses at one time • Supreme court held religious belief cannot justify overt act made criminal by statute

9. Prostitution • Not a crime at common law • Sex for money or something of value • Most states cannot solicit prostitution

10. Indecent exposure and Voyeurism • Intentionally exposing “private parts” in a public place for sexual gratification • Requires offensive manner • Nude dancing-1st Amend. Protection under certain circumstances but allow reasonable regulations • Voyeurism-obtaining sexual gratification from seeing another person’s sexual organs or activities-usually secretiveness

11. Obscenity and Pornography • Obscenity limited to hard-core pornography • Miller test-whether “the average person, applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; work taken as a whole, lacks serious literary, artistic, political or scientific value

12. Post Miller • Contemporary community standards appropriate for first two prongs, but objective standard for third: whether a reasonable person would find serious literary, artistic, political or scientific value taken as a whole

13. State and local regs • States can interpret their constitutions to allow greater freedom of expression

14. Defenses • Material disseminated to or performed for an audience of persons having scientific, educational, governmental or other similar justification • Defendant had reasonable cause to believe the minor was 17 or older and exhibited official documentation to the defendant

15. Problems of enforcement • Police and prosecutors have difficulty in determining what’s obscene based on “contemporary community standards” • Juries review material so can be obscene by one and not by another • Search and seizure problems

16. Internet • Communications Decency Act of 1996-Supreme Court struck down on 1st Amend. grounds of the statute’s proscription of “indecent” transmissions • Presented a real threat of censoring expression entitled to 1st Amend. protection=unconstitutionally overbroad

17. Child pornography • No 1st Amend. protection • Criminalize distributing, possessing, producing, consuming • Compelling state interest in protecting children

18. Profanity • Historically prohibit public profanity • Incorporated into broader prohibitions of offensive or disorderly conduct • Courts often invalidate on vagueness grounds, others allow when consists of “fighting words” or defendant’s conduct threatens to breach the peace

19. Gambling • Traditionally meant to risk money on an event, chance, or contingency in the hope of realizing a gain • Common law not a crime • US Supreme Court says no constitutional right to gamble • Gaming includes consideration, prize and chance

20. Prosecution problems and defenses • Consensual nature makes catching and prosecuting suspects a problem • Search and seizure requirements • Criminal nature v. state sanctioned

21. Animal cruelty • Domestic animals do not have rights • Modern treatment allows protections

22. Alcohol-related offenses • Prohibition-18th Amend. • Made unlawful the “manufacture, sale, or transportation of intoxicating liquors” within the US • Repealed by the 21st Amend. • State and local governments retain authority to regulate

23. Offenses related to consumption of alcohol by minors • All states prohibit minors from purchasing, possessing, consuming • States free to set drinking age, Congress uses fiscal power to induce states to raise to 21

24. Public intoxication • Some modern approaches involve treating alcohol as a disease • Taking violators to treatment facilities rather than jail

25. Driving under the influence • In Iowa it’s OWI • Alcohol, drugs, combination • .08 or under the influence • Zero tolerance for juveniles-illegal for <21 to drive with B.A.C. of .02 or higher

26. Prosecution • Field sobriety tests • Breathalyzer • DRE

27. Defenses • Methodology of administration of field sobriety tests • Underlying reason for contact

28. Implied consent statutes • Person who drives is deemed to have given consent to a urine test to determine B.A.C. • Refusal to submit results in an administrative suspension of license

29. Drug offenses • Harrison Act-first attempt by federal government to regulate the sale and use of opium and cocaine • Ostensibly a revenue measure as it levied criminal penalty to distribute having failed to register and pay taxes • States followed suit

30. Marijuana • Often and historically treated differently than other drugs • Medical marijuana debate

31. Modern approach • Federal and state treatment • Different classifications based on potential for abuse

32. Meth • Increase in penalties • Pseudo restrictions

33. Drug paraphernalia • Any equipment, product or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, inhaling, or otherwise introducing into the human body a controlled substance

34. Possession • Actual • Constructive • Sole • Joint

35. Intent to sell or distribute • Direct or circumstantial evidence

36. Defenses • Entrapment • Search and seizure

37. “War on drugs” • Nixon declared in 1973 • Reagan re-declared in 1982 • Bush in 1988 • Federal and state action • DEA • Courier profiling-set of behavioral characteristics typifying drug couriers • Mandatory minimum sentences

38. Drug testing employees and students • SC has not addressed issue of general, random drug testing of public employees • Teacher testing has withstood challenge • Asset forfeiture • Federal criminal forfeiture • Civil forfeiture • ODCP w/in Executive Office of the President • Coordinate federal and state policy

39. New approaches • Drug Courts • Collaboration of prosecution, defense, treatment, under supervision of court