FINAL EXAMINATION
Fall 2002

QUESTION ONE (85%)

Tammy Teene was a nice, fairly naive sixteen-year old girl. She had dated a few boys but was not very socially active. She suffered from a somewhat rare blood disease and, as a result, her parents kept her fairly sheltered. She liked to do art work (she inherited this from her father) and she would often go to a park not far from her house and paint. She and her father had gotten quite good at a technique using paint knives and oils, and she liked to paint the landscape at the park. One day, while at the park painting, she saw a man watching her. They began a conversation and he was very complimentary about her work. They talked for a while and she enjoyed the time very much.

Tammy continued to come to the park to paint, and the man was often there as well. They had many long conversations, and he was very complimentary toward her painting and her in general. After they had met several times, he invited her for coffee, and later for dinner. She started to see him quite often. She did not tell her parents about him (she knew they would disapprove, since he was somewhat older) but led them to believe she was seeing another teenager. As the weeks progressed, she spent more and more time with the man, whose name was Bob Boyfrend.

Bob introduced Tammy to things she was totally unfamiliar with, like drugs and the Goth scene. She was fascinated with all of it. Bob was working his way toward introducing her to sex. He would call her his little firefly and tell her she lit up his life. His next move was to try to get her to "light him up" through a sexual relationship. As part of this plan, he encouraged her to get a tattoo of a firefly on her shoulder. At first she was hesitant, thinking that her parents would go ballistic. Later, she and Bob talked more about it, and he was pretty insistent. She relented and agreed to get the tattoo. She figured her parents would just have to live with it. They made plans to get the tattoo that weekend when, as she advised Bob, her parents would be out of town.

Alan Artiste is a tattoo artist. He prides himself in the artistic quality of his work and is fairly well known for his unique designs, including his fairly innovative use of color. He does tattooing as well as body-piercing at his little shop in the artsy section of town. He is fully licensed, has all the required warnings posted and generally tries to follow the law and keep proper records, especially since he was convicted of tattooing an intoxicated person a number of years ago (under an older version of the law). He knows that, if he were to be convicted again, he would likely lose his license and do jail time.

The busy season for tattooing and body-piercing was just beginning, but Alan was running into a problem. His regular ink supplier went out of business, and he was having trouble finding a good substitute. Alan liked to use colored inks a lot, but they were not available from a lot of suppliers. He found one supplier who offered a variety of colors at a very low price, and Alan started to use him. He was making more money than ever as a result of the savings he experienced and the colors looked good, but he was starting to get concerned because the number of complaints had gone up, especially when he used red and yellow inks. Initially, he didnít worry about the first few complaints, since the people were not the type who were likely to follow directions and be careful in avoiding infection, and he assumed they were responsible for their own problems. When several others let him know they had had problems with pain, swelling and infection, he decided to start a new bottle of ink in case there had been some inadvertent contamination. Unfortunately, that did not seem to totally end the problem, but it did seem to slow it down quite a bit and Alan was pretty sure he had it under control. He stopped worrying about it as his volume of clients grew (after a fairly notable performer had come for a tattoo and mentioned Alan and his shop at his concert, which caused business to skyrocket) and he had to spend all of his time and effort just to keep up with the workload.

It was about this time that Bob and Tammy came to Alanís shop. Bob knew that, in order to get a tattoo, a person needed to be at least 18 or have the signed, written consent of a parent. He explained this to Tammy and told her he would pretend to be her father. Since he was 35, that wasnít too difficult. He told Tammy to say she didnít have any ID but that Bob was her dad. They went to the shop together and Bob told Alan he wanted to get a firefly tattoo for his daughter. Alan looked at the two of them and thought to himself that heíd seen them kissing at the coffee shop a day or two before, which he thought was odd. He wondered if they just looked like the couple heíd seen, or whether they had an odd father-daughter relationship, or maybe that wasnít even really their true relationship, but with as busy as he was, he didnít have time to think any more about it.

Tammy filled out the required forms for the tattoo. She used her real name, and when Alan checked Bobís ID (which showed a different last name), he seemed concerned. Bob immediately indicated that Tammy was his daughter from his first marriage but that she uses her motherís name. Alan still seemed confused, but the store was very busy and the people behind Bob and Tammy were getting impatient. Alan ignored the issue and took Tammyís forms. He noticed she hadnít filled out the medical section, and when he asked her about it, she said she didnít have anything to put down. He then noticed that she was wearing a medic alert bracelet and that she had a number of bruises on her legs. He asked her about that and she told him she was diabetic and that the bruises were from a fall. In fact, the bracelet was for her blood disease and the bruises were related to the disease as well. Alan thought about asking to see the bracelet, but the crowd was growing and Bob backed up her story. Rather than have Tammy fill out the missing information, Alan jotted down some notes as to what Tammy had said and took her to the tattooing area. He proceeded to apply a firefly tattoo, using a variety of colored inks. He handed Tammy the medical warning sheet required by the State Board of Health. Bob then paid Alan for his work and he and Tammy left the shop.

After leaving the shop, they got into Bobís car and he began to talk to her about being his little firefly. He then suggested that now was her chance to "light him up." She understood that to mean he wanted to engage is sexual activity with her, something they had not yet done but that she was actually looking forward to doing. Unfortunately, she suddenly began to feel lightheaded and she told him so. At first, he thought she was just trying to avoid his advances, and he began to come on stronger. Then he realized she was getting pale and weak. He told her he was taking her home, and she weakly agreed. When they arrived at her house, Bob, knowing her parents were away, carried her up to bed, since by now she was so weak she could hardly walk. He realized that maybe he should have taken her medical condition more seriously before he insisted on the tattooing and briefly thought about trying to call her parents, but realized that would lead to a huge hassle. Instead, he left the house and went to a local bar to see if he could find a girl he could pick up for the night.

Unfortunately, as a result of the bad ink and its reaction in her system due to her blood condition, she suffered a serious shutdown of many of her bodily functions. When her parents arrived home early the next morning, she was nearly comatose. As she was being taken to the hospital by ambulance, she started mumbling to Dave, her father, who by then had noticed the tattoo. She said something about "lighting Bob up" and fireflies, which Dave did not really understand. Her last words were, "Iím sorry Daddy." She died in the ambulance on the way to the hospital.

Needless to say, Tammyís parents were distraught over her death. An autopsy revealed the cause of death as an adverse reaction to the ink aggravated by her blood condition. It is likely that prompt medical attention could have saved her, but she was discovered too late. Tammyís parents did not know who "Bob" was, but reported what they knew to police, who tried to figure out who was responsible for her death. They checked on tattoo parlors and discovered that Alan had done the tattoo. When they checked his records, they discovered that he had not made a copy of Bobís ID, which was required under the Board of Health regulations. Alan had misread the regs and thought he only needed to copy the information, not that he needed an actual copy. The officers could not read the name that Alan had written and he couldnít remember it himself. This made their investigation very difficult.

Fortunately, Dave found a camera in Tammyís room and had the film inside developed. There were several pictures of Tammy and an older man (who turned out to be Bob). Dave turned some of the pictures over to the police. He was angry and distraught and hoped the police would find the person he believed to be responsible for his only childís death. Dave was so upset he was unable to work, and he thought maybe painting would help him. He took his paints, painting knives and canvass to the park where he and Tammy used to go. He set up his easel behind some trees and began painting. It was the first peace heíd found since Tammy died a week before. After a little while, Dave noticed that there was noise coming from a bench not far from where he was painting. He turned and saw two people sitting (almost laying) on the bench, apparently making out. The first thing he noticed was that the young woman had a firefly tattoo on her shoulder. He then heard the man say, "Thatís it little firefly, light me up." Those words stopped him in his tracks. As he looked more closely, he could tell that the man on the bench was the same man as in the pictures from Tammyís camera. Then it all came together - this was the man responsible for his daughterís death. In light of what he had just seen, Dave surmised that the man had probably seduced Tammy before she died. And, less than one week later, here he was using the same line on another girl.

Dave started screaming at Bob, who looked totally shocked. At first, he didnít understand what was going on, but then it became clear that Dave was Tammyís father and was very upset about his role in her death. Dave was yelling about getting him for what heíd done to his daughter, and then started yelling about getting the police. "Youíll pay for this, you bastard. She was my only child. Whatís wrong with you?" Bob just wanted to get away from the situation, so he told Dave to calm down. This incensed him even more. Bob turned to the girl and told her they needed to get going. Dave turned to Bob and said, "Youíre not going to get away with this." He reached for his cell phone to call the police. As he looked down, he realized he had the painting knives sitting on the easel. Just as he noticed them, he heard Bob say to the girl, "Címon Firefly, letís get going." Hearing those words made him so angry, he picked up one of the painting knives and lunged toward Bob, thrusting the knife toward Bobís chest. As he did so, the girl, Violet, instinctively reached over to help Bob. She got in the way of the lunging paint knife and was stabbed in the chest. She died almost immediately from the stab wound.

Discuss the potential individual criminal liability of any person alive at the end of this problem under the following statutes only. Analyze under Common Law only.

Mokans G.L. ß 420.450

It shall be unlawful for any person to tattoo, brand or perform body-piercing (except piercing of the earlobes) on any other person if:

a) the person performing the tattooing, branding or body-piercing is not duly licensed to do so or is not a licensed medical practitioner,

b) the record-keeping requirements of the State Board of Health have not been fully complied with, or

c) the medical warnings required by the State Board of Health have not been posted on the premises and have not been provided in writing to the subject of such tattooing, branding or body-piercing.

Violation of this section shall be a Class D misdemeanor for the first violation, and a Class C misdemeanor for subsequent violations. Conviction of two violations of this section shall automatically lead to revocation of any license issued under this chapter.

Mokans G.L. ß 420.480

Whoever knowingly tattoos, brands or performs body-piercing on a person who is under the influence of alcohol or drugs, or, without the written consent of the parent or legal guardian, does so on a minor who is not legally emancipated, shall be guilty of a Class B misdemeanor, unless such person shall have previously been convicted under this or a predecessor statute, in which case they shall be guilty of a Class E felony.

Mokans G.L. ß 420.485

Whoever falsely represents himself to be a parent or legal guardian of a minor for the purpose of obtaining the tattooing, branding or body-piercing of said minor shall be guilty of a Class B misdemeanor.

Mokans G.L. ß 500.100 Murder

Murder is the unlawful killing of a human being with malice.

Mokans G.L. ß 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.

Mokans G.L. ß 500.120 Murder in the Second Degree

All other murder is murder in the second degree.

Mokans G.L. ß 500.200 Manslaughter

Manslaughter is the unlawful killing of a human being without malice.

Mokans G.L. ß 500.210 Voluntary Manslaughter

Voluntary manslaughter is a killing upon sudden quarrel or heat of passion.

Mokans G.L. ß 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 (15%)

Vicki didnít want to have sex before marriage. She had been dating Dan for a while and felt that they were in love. She wanted to get married, but Dan made it clear that he had to wait until he finished school, and that would not be for another two years. She also knew he did not want to wait to have sex, and he had recently commented to Vicki that he didnít think he could wait two years for that. As a result, she feared that he would end the relationship and find a more willing partner if she did not have sex with him.

Shortly after their last conversation about sex, they went on a date and went back to her dorm room. During heavy petting, he came on strong and indicated he really wanted her. He began to remove her undergarments and, although she really didnít want to let him, she did not fight and essentially allowed him to penetrate her. After he had done so, she became very agitated and told him to leave. She is now claiming she was raped and her family wants Dan prosecuted.

You are a law clerk in the prosecutorís office. Advise the prosecutor whether prosecution of Dan is possible and appropriate under the following recently enacted (and as yet unconstrued) statute, which is to be construed using default MPC principles.

Rape:

Whoever, without express or implied consent, knowingly has sexual intercourse with another person commits the crime of rape.

Definitions:

Express or implied consent is viewed from the objective perspective of a reasonable person.

Express or implied consent is not valid when:

a) the victim is unconscious or physically powerless;

b) the victim is incapable of giving consent and such incapability was known by the offender or was reasonably apparent to the offender; or

c) the victim is induced by force, duress, fear, or a knowing misrepresentation made by the offender that the sexual intercourse was a medically or therapeutically necessary procedure.

Sexual intercourse means any act involving the genitals of one person and the mouth, tongue, genitals, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for any purpose, except for a medical purpose when performed by a licensed medical practitioner in accordance with commonly accepted medical practices.