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FALL 1999 FINAL EXAM
QUESTION ONE (90%)
Wanda had been married for almost 20 years. Prior to getting married, she had been a registered nurse, but when she married, her husband insisted she stop working and care for the marital home. They lived in a large farmhouse that Wanda had inherited from her parents and that had been in her family for well over a hundred years.
About a year ago, Wanda and her husband divorced. As part of the property settlement, Wanda kept the farmhouse and received some other funds, but it was clear she was going to need to work if she was to be able to retain the farmhouse and maintain a comfortable standard of living. She explored the job market but discovered that, although she had maintained her nursing license, with her lack of recent experience it was unlikely that she was going to find a good paying job unless she went back to school. She was very frustrated about her job prospects.
One day, Wanda was having lunch with one of her oldest friends, Freda. Freda was upset about her father. He had been diagnosed in the early stages of Alzheimer's and Freda was having difficulty taking care of him. She was a devoted daughter (an only child) who had moved in and cared for her father after her mother died more than ten years ago. She had given up a lot to take care of him and wanted to continue to do so, but she needed to keep her job and she could not do both. She felt really guilty about looking for another place for him to live. She felt as if she were deserting him, and he felt that way as well. Freda was lamenting about the absence of good facilities to care for people like her dad. She checked into assisted living facilities, but no place she could find would take him. She looked at nursing homes specializing in Alzheimer's, but found them to be either sterile or overly restrictive. She was aware of a few home care facilities which tended to be warmer and to provide more personal attention, but the waiting lists were incredibly long. Freda was quite upset at the absence of viable options.
Their discussion at lunch got Wanda thinking. She had lots of room at the farmhouse, she loved working with older adults, she had a nursing background, she needed money, and people out there needed good care for their parents. She decided to look into setting up some kind of home health care facility for Alzheimer's patients at the farmhouse.
Within a few days, Wanda had begun researching what it would take to establish a home health care facility for Alzheimer's patients. She discovered that it would be more difficult than she had hoped. There were extensive regulations that needed to be followed exactly, and there were lots of up front costs for equipment, licensing and the like. Wanda discussed her idea with Freda and several other friends, all of whom encouraged her to proceed. Despite reservations that she didn't have sufficient business experience, legal expertise or financing, she really wanted to go forward, and her friends assured her there was a demand for the service she was going to provide. She finally decided to proceed.
Because Wanda didn't have a lot of money to work with, she tried to do as much as she could on her own. Rather than hiring an attorney, she got the regulations and went over them herself. Although initially she had difficulty understanding them, she started to find figuring out the rules to be like working a puzzle, and she began to feel confident she understood what was required.
Wanda discovered that there were several different types of facilities, each with its own licensing requirements. She felt she had room for six to eight residents and she was willing to take a few individuals who needed physical assistance as well as a few early or mid-stage Alzheimer's patients. She realized that she could not handle later stage Alzheimer's patients, so she decided she would not seek a license for an intensive home care facility. After reading the regulations, she determined that all she would need was a license as a skilled home care facility, which she understood would allow her to house up to 10 adults, four of whom could be in the early to mid stages of Alzheimer's or other diseases involving dementia.
Wanda used almost all of the funds she had obtained in the divorce settlement to purchase the furnishings and equipment she needed to set up the adult care facility. She applied for the skilled care license and, after inspection of her facility, the application was approved and the license granted. She let people know she was planning to open on August 1st, and by early July she had applications from more patients than she could handle. This caused her to believe she had made the right decision in going ahead with her plans.
The staffing regulations for both skilled and intensive home care facilities mandated that, for 6 to 10 patients, the facility must have at least two full-time employees during the day (one of whom was required to be a registered nurse) and one full-time employee at night, who was required to be licensed by the state as either a practical nurse or nursing home attendant. Such licensure required both completion of an educational program and a certain amount of practical experience. The night employee was required to be on duty at all times during the night. Failure to have a qualified employee on duty constitutes a violation of the staffing requirements set out in state regulation §455.
To save money, Wanda served as the day R.N. as well as the administrator of the facility. She hired an experienced practical nurse to assist during the day with patient care. Since she had accepted six patients, she needed a night employee as well. Her attempts to hire a nurse or attendant, though, where not going well. Because of cash flow problems, she could not pay a high wage and most licensed individuals (at least those who were any good with patients) were unwilling to work for what she could pay. Opening day was rapidly approaching and Wanda was concerned about whether she could find the needed staff person. She had ads in the local papers and listed the job at every nursing registry in town. About two weeks before the scheduled opening, she received an application from what appeared to be a promising candidate. His application indicated that he was a licensed nursing home attendant and had worked at several facilities on the other side of the state over the last few years. His letter stated that he had recently moved to town and that he wanted to work in a small facility with people who care. Wanda arranged for an interview with the applicant immediately.
Two days later, on Wednesday, she met with Alan Alston, the applicant. He seemed eager and had good communication skills. Wanda was a little surprised at how little medical terminology he used in their discussions, but she was impressed with how he talked about patient care. She tried not to get too excited, figuring he would become hesitant when she mentioned the pay. She was pleasantly surprised when he did not. Based on his resume, the interview and his willingness to work for the amount she could afford, Wanda hired Alan on the spot, contingent on a reference check. He was to start the following Monday in order to help get things ready to open the facility. Wanda made clear the requirements of the position, including the requirement that he be awake and alert on duty all through the night.
Before Alan left, Wanda asked to see his license. He indicated that he did not have it with him, but that he would bring it when he started work. After Alan left, Wanda called the last place he listed working for a job reference. The person she spoke to appeared hesitant to talk on the phone and asked her to send a written request. She was a bit surprised by this, but figured things were being done differently now from when she worked twenty years ago. She made a mental note to herself to send a written request when she got a chance to get on the computer. She then called the second reference, a hospital in another city where his resume indicated he had worked three years before. The director of personnel at the hospital indicated he had no record of Alan Alston, but stated that they were in the process of a file conversion and some people weren't showing up in the system. He promised to get back to her the next day with the reference.
Wanda was busy for the next several days trying to get ready for the opening of the facility. Twice when she worked at the computer she thought about the need to send the reference request to Alan's first listed employer, but each time something came up and she put it off. She also realized she hadn't heard from the hospital personnel director and thought she needed to call him back as well.
On Monday, Alan arrived. He was very eager and helpful in getting things set up, and some of Wanda's concerns about the inability to check his references seemed to fade. She asked him when he arrived for a copy of his nursing license. He indicated he couldn't find it and that it must be in one of the boxes he had not yet unpacked. He promised either to find it or get a copy from the state as soon as he could. Wanda was a little apprehensive about this development but didn't have time to worry about it and encouraged him to get the license to her as soon as possible.
The facility opened on schedule the following Monday, with Wanda and Nancy Nurss working days and Alan working nights. Wanda, of course, lived on-site and was available to assist at night in an emergency, but she generally slept from 11p.m. to 6 a.m. The patients appeared to like the staff, and initially things were going well. Unfortunately, patients with Alzheimer's and other forms of dementia are often unpredictable and problems soon developed. The most serious problems were with Dave (Freda's dad) and Luke, another dementia patient. Both men had a tendency to wander, and on several occasions were found outside the premises. The facility had a patio area and garden where the patients could spend time outside, but Dave and Luke both wandered beyond the garden into the wooded area behind the house. Luckily, neither man made it as far as the creek that ran through the woods and Wanda was thankful for that.
Wanda was concerned about this development since she could not afford to hire additional staff to monitor the men and there were building safety restrictions that precluded placing locks on the doors to restrict access to the outside. In addition, physical restraints could only be used if authorized by the patient's doctor, and in neither case were such restraints authorized. Wanda dealt with the problem during the day by requiring Nancy to keep a special eye on these patients and by not permitting them to go outside without being accompanied. This upset the patients and caused tension between their families and the staff. Wanda considered hiring another part-time attendant to alleviate the problem but decided she could not afford to do so.
Meanwhile, Wanda had another problem. It seems that, on several occasions, she couldn't sleep and went downstairs to the facility in the middle of the night to do paperwork. On two occasions, she discovered Alan asleep at the nursing station. One of those nights, she also discovered Dave sitting outside on the patio. Wanda warned Alan on both occasions that sleeping on the job was unacceptable and that, if it happened again, he might be fired. Each time he had an excuse. She also warned him about Dave being outside and he agreed to be more careful about watching Dave in the future. She also thought about looking into an alarm system for the doors, but forgot about doing so by the morning.
About a week after the second incident with Alan, Wanda came downstairs during the night and discovered him asleep again. As usual, he had an excuse, and although Wanda was upset and gave him a warning, she didn't do any more because she was afraid he would be hard to replace. She did think about looking for a new employee but decided to put off addressing the issue because quarterly reports were due.
A week later, Wanda woke up at 4 a.m. and went downstairs to do some work. Once again, she found Alan asleep. She awakened him and threatened to fire him. She asked when he had last checked the patients and he indicated it had been at least several hours. They went together to check on the residents. When they got to Dave's room, they discovered he was missing. Wanda immediately checked the patio and garden while Alan checked throughout the house. After their unsuccessful search, they called police, who began a search of the wooded area around the farmhouse. At 6 a.m., they found Dave dead in the creek. It appears that he wandered away from the farmhouse, became disoriented and fell in the creek and drowned.
Needless to say, Freda was very upset by this development. She blamed both herself and Wanda for her father's death. They had heated words when she spoke to Wanda later that morning and both women were somewhat distraught. Three days after Dave's death, Freda came to the farmhouse to collect her father's belongings. She had just come from the funeral. She spent about an hour packing up Dave's things. She cried as she went through his clothing and photos and had a hard time regaining her composure. When she finished packing, she loaded the boxes into her van. She came back in to tell Wanda she was leaving. As she walked through the front hall, she noticed her dad's bowling trophy on the mantle. It was his most prized possession, and he had obviously placed it there so he could see and enjoy it. Freda once again began to cry as she picked up the trophy, which was fairly heavy marble and metal, and proceeded toward the office.
Before she reached the office, Freda passed the sitting room and could hear Wanda and another person talking. In fact, Wanda had just gotten off the phone with the police and had gone to the sitting room to check on Patti, a patient. Patti had just finished watching a soap opera which Wanda often watched and was telling Wanda about recent developments. Freda heard the other individual say, "Yeah, he died, but nobody really cared. He was just a damn old fool." Wanda responded, "Yes, you're right. Only his daughter cared anything about him, and she was more of an idiot then he was." Freda became incensed. She burst into the room and saw Wanda sitting on the couch talking and laughing. When Wanda saw Freda, she stated, "I was just talking about your dad" (referring, of course, to her conversation with the police). Freda screamed, "You insensitive bitch. You killed my father and now you call him a fool. How dare you!" She took the trophy she was carrying and swung it directly at Wanda's head. Wanda moved quickly to get out of the way. At the same time Patti moved toward Wanda to try and push her out of the way of the swinging trophy. It missed Wanda but hit Patti, causing a severe head trauma from which she died almost immediately.
The police, in investigating these incidents, discovered that Alan (who has since disappeared) was not a licensed nursing home attendant. In fact, his credentials were fraudulent and he had not worked at the hospital he listed. He had worked briefly at the nursing home Wanda had called but was fired when they discovered he lacked the necessary license. Investigation also revealed that Wanda's facility, because it housed mid stage Alzheimer’s patients, was considered an intensive home care facility. Because Wanda had misread the regulations, however, she had a valid license only for a skilled home care facility and not for the more intensive care facility she actually operated.
Discuss the potential criminal liability of Wanda and Freda under the following statutes only. Analyze § 120.200 separately under Common Law and Model Penal Code. Analyze all homicide offenses under Common Law only.
Mok. G.L. § 120.200
Whoever knowingly operates a home care facility providing skilled or intensive care to elderly patients without a valid license to do so; or, in operating such facility:
(1) employs staff in violation of the requirements of regs. §§445-460,
(2) provides building services in violation of the safety requirements of regs. §§520-545, or
(3) provides medical care in violation of the requirements of regs. §§620-690
shall be guilty of a Class C misdemeanor.
Mok. G.L. .§ 500.100 Murder
Murder is the unlawful killing of a human being with malice.
Mok. G.L. .§ 500.110 Murder in the First Degree
Murder is murder in the first degree if committed with premeditation and deliberation, or if the actor is engaged in the preparation for, commission of, or flight from, a felony.
Mok. G.L. .§ 500.120 Murder in the Second Degree
All other murder is murder in the second degree.
Mok. G.L. § 500.200 Manslaughter
Manslaughter is the unlawful killing of a human being without malice.
Mok. G.L. § 500.210 Voluntary Manslaughter
Voluntary manslaughter is a killing upon sudden quarrel or heat of passion.
Mok. G.L. § 500.220 Involuntary Manslaughter
Involuntary manslaughter is the killing of another by the commission of an unlawful act not a felony or a lawful act in a grossly negligent manner.
QUESTION TWO (10%)
Steve Soph is a college sophomore. He belongs to a fraternity that often parties with a sorority at the school. The sorority holds its parties on the first floor of their house where there is drinking, dancing and conversation. There is a common understanding that those desiring more intimate activities can go up to the bedrooms on the second floor. In some cases couples go to the bedrooms together, but it is also understood that sorority sisters who are willing to have sexual relations with fraternity members will go up to one of the rooms and wait for a "date" to arrive. If she is not willing to have sex with the person who comes into the room, she lets him know and he can try another room. If she is, she generally invites him in and sexual intercourse generally follows. This custom has been in existence for several years.
Vicki Volpe recently moved to town. She is enrolled at the college as a transfer student. She is a member of the sorority mentioned above, having been a member at her previous school. Unbeknownst to Vicki, the chapter here is much more liberal in terms of drinking and sex than the chapter she belonged to at her previous school. Vicki decided to attend the sorority party to meet new people. She was unaware of the "bedroom" custom.
Steve had seen Vicki around the campus and found her to be quite attractive. When he asked friends about her, he was told she was very traditional and was not interested in sex before marriage. When he heard this, he had a hard time believing it because he had trouble understanding that such an attractive girl would not be interested in sex, but he really didn’t think much more about it - until last night.
Last night he attended a party at the sorority house. He saw Vicki at the party and kept an eye on her most of the night. He saw her take one drink and "nurse" it for about an hour. He then saw her head upstairs. Although this surprised him a bit in light of what he had heard, it actually confirmed what he wanted to believe. He followed her upstairs and saw her on a bed in a room with the door slightly ajar. He entered the room and sat on the bed next to Vicki, who appeared, in his words, to be "very mellow." He said to her, "I didn’t know you were like this." She responded meekly, in a somewhat slurred way, "Like what?" He said, "Y’know. The kind of girl who wants it." She responded, "Oh. Uh huh." He said, "OK, so we’ll have a good time?" She sighed and seemed to say something inaudible, but it clearly wasn’t "no." Steve began to get excited and started to pull down Vicki’s panties. She neither objected nor participated. He then placed his erect penis in her vagina. She immediately reacted by crying out and he took that as a sign she was enjoying him. When she cried out again, he withdrew, realizing that she was in pain and was not a willing participant. He immediately left the room.
When Vicki realized what had happened, she went to the police and filed a complaint against Steve. It seems that she had been taking medication and, when she had a glass of wine, the combination of the alcohol and the medication caused her to get very weak and almost faint. She went upstairs to lie down, not knowing about the bedroom tradition. She really didn’t understand what Steve had said to her and didn’t realize what was happening until he penetrated her. Because she was a virgin and had not had intercourse before, the penetration was painful, causing her to cry out.
If you represent Steve, what are the two strongest arguments you can make in his behalf to avoid prosecution for second degree rape under the following statute? Explain.
Second Degree Rape:
Whoever without consent, knowingly has sexual intercourse with another person is guilty of rape in the second degree. (Class B felony)
Any act involving the genitals of one person and the mouth, tongue, or anus of another person or any sexual act involving the penetration, however slight, of the male or female organ or the anus by genitals, a finger, instrument or object.
Consent or lack of consent may be expressed or implied. Assent does not constitute consent if:
(a) the victim is overcome by force or fear;
(b) the victim is unconscious or physically powerless;
(c) the victim is incapable of giving consent because of mental deficiency or disease;
(d) the victim is incapable of giving consent because of the effects of alcohol, narcotics, or other substances;
in both (c) and (d), the condition which was known by the offender or was reasonably apparent.
Definition of intent:
The level of the intent is the same as the MPC except where stated in statutes or definitions.
Portions of the statute not relevant to this analysis have not been reproduced.