32 Section 3.5: Substantive Offenses

Once the essential elements of crimes are understood, it is a relatively easy matter to consider the elements that must be proven in court to obtain a conviction. Recall that each element of the crime must be proven beyond a reasonable doubt.


At common law, murder was defined as killing another human being with malice aforethought. Malice aforethought is a legal term of art that goes beyond the obvious meaning of the two terms. The term malice means the intention to do evil. It is sometimes defined as “ill will.” Aforethought means thought about or planned beforehand. If we put the two together, it suggests that the plan to cause harm was premeditated. This “murder with intent to kill” is one legal way to look at it, but at common law, malice aforethought could be satisfied in other ways. An alternative was a murder committed when the intent was only to cause grievous bodily harm. In addition, a person was guilty of murder if someone else was killed in the while committing a felony. This is known as the felony murder rule.

Most murders require the specific intent to harm the person that dies. When someone does something that kills somebody but there was no specific target, then there is a depraved heart murder. A classic example of this is firing a rifle into a passenger train car. No specific victim was intended, but it was highly likely that someone would die.

While there are some differences in these common law classifications of murder and the modern statutory classifications, their underlying prohibitions are the same. The Model Penal Code, for example, prohibits purposefully or knowingly killing another human being. This functions in a nearly identical way to the common law rule against intentional murder. The Model Penal Code punishes killings that come from “extreme recklessness” in a way that mimics the depraved heart murder of common law. The Model Penal Code creates a rebuttable presumption that a killing committed during the commission of certain felonies shows extreme recklessness. This provision mimics the felony murder rule in function.

Assault and Battery

In everyday language, assault and battery are used interchangeably. In many jurisdictions, however, they are two distinct offenses. An assault is an act that creates an imminent fear that the victim will be harmed, but no actual harm occurs. In other words, an assault is a threat of force. A battery is a physical act that results in some actual harm to the victim. Some jurisdictions include any offensive touching in the definition of battery. Many jurisdictions define an unwanted touching of the sexual organs of another person as a sexual battery. Note that in most cases, the assault is a lesser-included offense of the battery. That means that in jurisdictions that have both assault and battery statutes, both offenses cannot be charged against the same person for the same act.


Rape is a crime that has evolved dramatically over time. At common law, rape was defined as the unlawful carnal knowledge of a female without her consent. In this common law context, the term unlawful means that law did not authorize the act. Historically, this precluded applying the rape law to a husband who forced his wife to have sex (now known as marital rape). Carnal knowledge is synonymous with sexual intercourse. Thus, the law was very specific; many violent sexual acts (such as those perpetrated against men) did not fit the legal definition of rape.

Historically, rape has been a very difficult crime for the state to prove. The most difficult element to prove in court tends to be the fact that the woman did not consent to the act. Many jurisdictions required that the victim offer forceful resistance to the perpetrator. In addition, many required that the victim be of “previously chaste character.” Defense attorneys would use this requirement to attack the victim on the witness stand, increasing the trauma of an already traumatic event. Most states have now passed what are known as rape shield laws. These are laws designed to protect victims of rape from further trauma. Most of these laws prohibit the introduction of evidence about the victim’s past sexual history and reputation.

The changing legal climate of rape law has influenced the definition used by the FBI’s Uniform Crime Reports program. The traditional UCR definition was “The carnal knowledge of a female forcibly and against her will.” Many agencies interpreted this definition as excluding a long list of sex offenses that are criminal in most jurisdictions, such as offenses involving oral or anal penetration, penetration with objects, and rapes of males. The new Summary definition of Rape is: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” This language is very similar to that of the Model Penal Code’s rape statute.


Arson has always been considered a very serious crime. At various times, the penalty under the common law was death by burning. Common law arson was very narrowly defined as the malicious burning of the dwelling of another. In the common law context, a malicious burning was one where the perpetrator had criminal intent. The burning requirement did not mean that the dwelling had to be completely consumed by the fire. Smoke and blackening were generally considered to be insufficient; some part of the structure (albeit a very small amount) must be destroyed by the fire.

Modern statutory definitions have tended to expand on what is covered by arson. Today, most all structures will qualify. Many states include the burning of any valuable property in the definition of arson, setting the penalty based on the value of the property destroyed. The model penal code requires that the arsonist have the purpose of destroying another person’s building or other structure.


Robbery is the taking of the property of another by the use of force or threat of force. Because of the force involved, most jurisdictions classify robbery as a crime against persons rather than a property crime. For this reason, some force is required for a theft of property to amount to a robbery. Purse snatching, for example, does not constitute a robbery in most jurisdictions because the only force involved was the amount necessary to acquire possession of the property. Many states divide robbery into categories based on the seriousness of the offense. The use of a weapon, especially a firearm, often elevates the crime to aggravated robbery or first-degree robbery, depending on the jurisdiction. Most robbery statutes are state laws, but some robberies, notably those that affect interstate commerce or the currency, are matters of federal law.


At common law, burglary required that the crime take place in the dwelling house of another at night. Most states have greatly broadened this requirement to include any structure at any time of day. Many jurisdictions draw a distinction between residential burglary and commercial burglary, with the penalty being more severe for residential burglary. Burglary is much more serious than a mere theft of property because it involves the home, which is sacred under the common law tradition, and the risk of violence is high.

Most modern statutes require a breaking and entering into the home or other structure of another person with the intent to commit a crime therein. Under most circumstances, the crime will be a theft. Other offenses contemplated within the structure, such as rape, can also meet the requirements for burglary.

Classification of Juvenile Behaviors

Recall that there is a separate juvenile system that is operated in parallel with the adult system. The special treatment of juveniles extends into the criminal law along with other aspects of the criminal justice system. The OJJDP estimates that about 1.3 million juveniles were arrested in 2013, continuing a downward trend in the number of persons under the age of 18 arrested each year. Only about 61,000 if these were offenses listed on the Violent Crime Index. The remaining offenses were property crimes and nonviolent offenses. Some of these were status offenses, such as truancy, curfew violations, and running away.

The vast majority of these arrests were for nonviolent crimes. About 5% were for minor offenses, such as truancy, running away, or curfew violations. Because the juvenile justice system is different that the adult criminal justice system, a different classification scheme has been developed to describe children. There are three basic categories of youths under the jurisdiction of the Juvenile Courts.


Delinquents are youths who commit acts that would be considered as criminal of the same act were committed by an adult. This classification includes both misdemeanors and felonies.

Status Offenders

Status offenders are youths who commit acts that would not be defined as criminal if committed by an adult, but are only taken notice of because of the juvenile’s age (e.g., truancy, running away from home, and curfew violations).

Dependent and Neglected Children

Dependent and neglected children are youths who are disadvantaged in some way and in need of support and supervision.

Key Terms

Arson, Assault, Battery, Burglary, Carnal Knowledge, Commercial Burglary, Common Law Arson, Delinquents, Dependent and Neglected Children, Depraved Heart Murder, Dwelling House, Felony Murder Rule, Grievous Bodily Harm, Lesser-included Offense, Marital Rape, Murder, Rape, Rape Shield Laws, Rebuttable Presumption, Residential Burglary, Robbery, Sexual Battery, Status Offenders, Status Offenses, Truancy


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