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Criminal Law Final - Fall 2000

QUESTION ONE (80%)

Craig and Carla Childress had been married for nearly eight years and were very happy, except for one thing. Despite years of trying, they had been unable to conceive a child. They desperately wanted a baby, and about a year ago they realized that they probably would have to adopt. They went to the state Department of Social Services (which oversees adoptions in the state) and were told that there was at least a three-year wait for adoptions directly through DSS. The DSS worker told them that they could probably cut 1-2 years off that time by going through a private agency, but that would cost $8-12,000, possibly more. Although not rich, the Childress's had some resources, so they decided to pursue that avenue. The worker told them that adoptions were only legal if arranged through a licensed agency and gave them a list of licensed agencies. The couple then began their quest to adopt a child.

The couple approached several agencies. At each agency, they were told that there was a long wait to get a child. They were told that birth mothers often have input into the selection of adoptive parents, but that, since agencies generally don't want to overwhelm the mothers, they send information on appropriate families based largely on how long the families have been waiting. Unless prospective parents have somewhat unique characteristics, they were told it is unlikely that they would even get their name and information sent out during the first year. But the agencies did indicate that occasionally people get lucky and the waiting period is shorter. They heard the same basic story from each of the four agencies that they went to. The agencies quoted prices between $10 and 15,000. The couple was told that the money covered agency expenses, payments to the birth mother, and legal fees. Although the couple was disappointed, they registered with several of the agencies and prepared to wait.

One day, they received an e-mail from Loving Care Adoption Services. They had never heard of that agency before. The e-mail said that the agency had received their name from a couple who had recently adopted through the agency and indicated that, although the agency was relatively new in Mokans, it had a long track record elsewhere. The e-mail stated that Loving Care could facilitate adoptions more quickly and easily than most other agencies. It offered to provide a baby in a much shorter period and encouraged them to call for an appointment.

The e-mail had been sent by Sandy Studen. Barry Babisell, who ran Loving Care, was friends with Sandy’s mother. Barry had asked Sandy to help him out. He had this adoption agency and wanted to do e-mails, but he didn't know how. He knew Sandy was very computer literate and was looking for a flexible job while going to college. He offered to pay her very well for her assistance. Sandy's mother told her to be cautious, because Barry's agency was not licensed and she thought he might be involved in criminal activity. Sandy didn't want problems, so she talked to a lawyer friend about the offer. The lawyer told her that, due to strict requirements in this jurisdiction, she could not be charged with assisting or facilitating illegal adoptions by merely sending the e-mails. He did tell her that there was a statute prohibiting advertising on public media for unauthorized adoptions, but since e-mail does not constitute public media, that statute should not pose a problem. He indicated she might not want to get involved as a moral matter, and he warned her against setting up a Web site or using other open media. Despite the warnings, Sandy decided to take the job anyway because it was technically legal and the money was so good.

Once Sandy took the job, Barry would get names and e-mail addresses of prospective adoptive parents from couples who used his service. These couples received fee reductions for the referrals and often got the names and e-mails of other childless couples from support groups or discussion lists in which they participated. The couples would provide these names to Sandy.

Carla called the phone number in the e-mail immediately and the person on the other end answered the phone "Loving Care Adoptions." Carla told Rita, the person who answered, that she had received an e-mail and she was transferred to another individual who identified himself as Barry Babisell. He indicated that he would be happy to meet with Carla and her husband and could do so in the next few days. They made an appointment for the next evening and were directed to come to a hotel room. When Carla expressed surprise at the location of the meeting, Barry indicated that the agency was relatively new in town and was having its offices renovated, but they weren't quite ready yet. Carla was a little hesitant, but Barry seemed confident he could help them and she agreed to the appointment. She told Craig about the conversation when he came home that evening.

The next day, Carla and Craig went to the meeting. They arrived at the hotel and went to the designated room number where they found a small suite. Rita, the person in the front room, gave them forms to fill out asking for a lot of personal information. In fact, it was very much like the intake forms at other agencies they had been to. The couple asked the receptionist if she wanted pictures of them and their home (which generally were required by the other agencies) but they were told that was not necessary. The couple then went into the next room where they met with Barry. He told them that the agency had recently started up in Mokans, had been successful elsewhere, and that they had sources to get babies that other agencies didn't have. He stated that he could not go into detail because it was basically a matter of trade secrets. He indicated that they could usually arrange a placement within six to eight weeks. The cost, though, was high. If a child was placed with them, the agency required a $15,000 fee for the placement (some of which would go to cover the birth mother's expenses) and the lawyer they were required to use charged an additional $10,000. Thus, the adoption would cost a total of $25,000.

The couple asked a few questions about the children they placed, including information about health and background. Barry was somewhat evasive. He kept indicating that "trade secrets" prevented his providing more information. He did offer to give the names of a few families who had successfully adopted children through them as references and the couple agreed that would be a good idea. They specifically asked if Loving Care was licensed, since they were not on the list the couple had obtained from DSS. Barry reminded them that the agency came to the state recently and assured them that they were fully licensed to do adoptions in Mokans. He indicated that they had a license and planned to post it in their new offices, but that it was packed up with their other office equipment which was currently in storage while they waited for their new offices to be completed. Although the couple felt a bit uncomfortable with Barry and his evasiveness, the opportunity to adopt quickly was very attractive and they agreed to register with Loving Care. They provided additional financial information to show they had the resources to pay the large fee (which was required in order to be considered further) and they left feeling better about their chances of becoming parents than they had in years.

When they arrived home, they called one of the references, who they remembered seeing at one of the support groups some time ago. The wife indicated that they had received a baby through Loving Care and were very happy. The child was adorable and healthy. They expressed qualms about the cost and how they didn’t really like the lawyer they had been sent to, but otherwise they were pleased. They did indicate that they had not yet had a home visit or filed adoption papers, but they expected everything to go smoothly.

Carla was somewhat relieved, although she wished she had been able to talk to someone who had completed the whole process already. She tried to call the other reference Barry had given her but couldn’t reach anybody. She called Barry back and he indicated that, since they were new in the area, there were no completed adoptions in Mokans yet. But he told her, "We know what we’re doing and how to work the system. Don’t worry. You want to be a mother while you can still enjoy it, don’t you? And we’re certainly your best shot at that." Carla agreed and decided to stop worrying. That evening, she told Craig all the details of her conversations.

About a month later, Carla got a call from Barry. "I’ve got great news – we’ve got a baby for you!" Carla was shocked and overwhelmed. "Really? So fast?" "I told you we deliver. Now, you’ll have to come by the hotel tonight with the deposit and you’ll get your daughter tomorrow." Carla couldn’t believe it. She immediately called Craig. They were somewhat uncomfortable bringing $5,000 to the hotel, but they really wanted the baby so they got a certified check and arrived at the designated time. They met with Barry, who showed them the picture of a newborn girl and said, "Here’s your new daughter." They were overwhelmed when they saw the picture and forgot to ask most of the questions they had concerns about.

Barry said there were a few things they needed to address. He gave them the name of a lawyer and told them she was the attorney they had to use. He also gave them the name of a physician and told them they needed to use that doctor exclusively until the adoption was final. He explained that they were aware of the child’s background and knew how to make things work properly. He cautioned them against going to anyone else. They thought this was odd, but they were so excited they really weren’t paying that much attention. Instead, they couldn’t take their eyes off the picture. He then explained that, in about a month, they would meet with the lawyer to fill out and sign the necessary papers and that they would have a home visit in about two months. He said, "We’ll talk then about what you’ll need to have ready and what you’ll need to say." Craig asked, "What do you mean?" and Barry responded, "Nothing to worry about. Just the representations you’ll have to make to finalize the adoption. It’s just red tape." Although they were concerned about what he meant, they took one more look at the picture of the baby and decided not to worry about what would happen in a few months. When Barry asked for the money, Craig gladly handed over the $5,000 deposit and they went home to get the baby’s room ready.

The following night, they went to the hotel as instructed. As promised, Barry was there with an infant. Craig handed him the remaining $10,000 and Barry turned the child over to them. They were surprised how easy it was; how little paperwork or red tape there was. When they expressed this to Barry, he said the lawyer was taking care of all that and would be contacting them. He reminded them that, if they had any questions or problems, they needed to contact him, the designated lawyer or Dr. Pediatrix (the physician) and no one else. Again, they were about to ask why all the secrecy when the baby started to cry. They started to comfort her and forgot what they had been concerned about. They left the hotel and took their new daughter home.

The first few days seemed to go OK and the couple was ecstatic. Although the baby seemed fussy, they assumed this was normal when a child is removed from its natural mother. They also thought maybe they needed more training as parents so they bought some parenting books to read. As the baby continued to be fussy and was not eating well, their concerns grew. They called Dr. Pediatrix and made an appointment. They brought the baby in for an examination. The doctor told them she didn’t see anything to worry about, advised changing the brand of formula and told them to burp the baby more. She said to bring her back in a week if problems persisted. When they still appeared concerned, she assured them there was nothing to worry about. They assumed she had the baby’s records and was relying on them; in fact, she had no information about the baby or her background. And in fact, there was a lot to worry about. The baby was actually the child of a prostitute who had contracted a venereal disease and used drugs while she was pregnant and who had received virtually no prenatal care. The child had some chronic health problems that could become very serious without testing and treatment. Unfortunately, the new parents had no idea about any of this information.

When the baby continued to lose weight and not be responsive, Carla and Craig became even more concerned. They went back to Dr. Pediatrix, who prescribed some medication and told them to make sure they held her while feeding. The couple did what the doctor recommended, but they continued to have problems. The baby’s weight dropped considerably, to almost half of her birth weight. She became less and less responsive, and Carla called Dr. Pediatrix again. After seeing her a third time, the doctor agreed things looked more serious and changed the medication. Carla asked, "Don’t you think I should take her to a specialist or to the hospital?" The doctor responded: "Look, you don’t want to rock the boat before the adoption becomes final. You want the adoption to go through, don’t you? You don’t want some less sympathetic doctor to see her this way, do you? What might they think?" Carla shared this conversation with Craig when she came home.

Carla and Craig were worried that they might be seen as bad parents so, although they were really worried about the baby’s condition, they didn’t seek other medical treatment. Also, they were beginning to wonder again whether everything was on the "up and up" with this adoption and they didn’t want to take a chance of losing the baby and the possibility of adopting in the future. As a result, they gave the baby the prescribed medication and waited several more days with no apparent improvement. Finally, when the baby started having trouble breathing, they took her to the emergency room. They were told the baby was in critical condition and the medical staff asked why they hadn’t brought her in before. "Couldn’t you tell she was seriously ill? We’d have a better chance of saving her if we’d have seen her a week ago." Carla and Craig were distraught and just mumbled that they didn’t realize how sick the baby was.

The baby was placed in intensive care and remained there for three days as doctors tried to help her. They told the couple that it would help if they had background information on the child. Carla tried to call Barry to get some information but he appeared to be avoiding her. Finally, Craig decided to go see him in person. When he arrived at the hotel, Rita told him Barry was unavailable. Craig was not willing to accept that answer and decided to see for himself. He stormed past Rita and burst into the back room where Barry was on the phone. Craig said firmly, "You will talk to me now. The baby is very sick and we need to know about her medical background - about her mother and her mother’s health. What do you know?" Barry responded, "There was nothing wrong with her; she was perfectly healthy when you got her. You yuppie parents think you’re so smart and sophisticated, but you just don’t know how to care for a child."

Craig was becoming increasingly angry. He started to respond to Barry when his cell phone rang. He answered it and it was Carla. She was hysterical. She told him the baby had just died and that Social Services and maybe the police wanted to talk to them. She said they were concerned about them having the baby and that things didn’t seem to be checking out. She also indicated that the doctors said the baby had medical problems from before birth, but that she and Craig had contributed to her death by not bringing her in sooner. She was crying uncontrollably during the call. Craig told her he’d be there as soon as he settled things with Barry. He hung up and turned back to Barry. "Don’t tell me I don’t know how to care for a baby. We were good parents. But the baby was sick from the beginning, and now she’s dead. It’s your fault. You’ve ruined us. You’ve taken all our savings and now we’ve got a dead child and we’re under investigation."

Barry responded, "Look, you knew what you were getting yourself into when you signed on with us, or else you were too stupid to see what was going on. Either way, it’s not my problem. And now you’ve caused problems for us – they’re probably on to us now and we’ll have to move on. It’s too bad ‘cause it looks like we could’ve had a good set-up here. I hate people like you. You act so self-righteous, but you can’t handle things when the going gets tough and you make problems for the rest of us." Craig had heard enough. All he could think about was the pathetic sight of the baby suffering, his hysterical wife and now hearing this. It was too much for him, and he lurched across the desk at Barry. "You heartless !*#!*#!. I’ll give you what you deserve." With that, he knocked Barry to the floor and began choking him. After he did so for several seconds, Barry stopped breathing. Apparently, he had a fairly weak heart and the combination of the attack and reduced air flow caused his heart to stop. He was dead by the time Rita came into the room to see what the commotion was about.

The police investigation of the matter revealed that, despite Barry’s statements to the contrary, Loving Care was not, and never has been, licensed as an adoption agency in Mokans. Additionally, the lawyer Sandy consulted had been in error. A judicial decision several years ago held that e-mail (except in a closed network, which is not what was involved in this case) is a public media in this state.

Discuss the potential criminal liability of Craig and Sandy under the following statutes only. Analyze all offenses under Common Law only.

Mok. G.L. § 101.550

Whoever knowingly gives anything of value in return for receiving a child for adoption other than

1) to a licensed adoption agency or

2) in conjunction with an adoption arranged by a licensed adoption agency,

shall be guilty of a Class D felony.

Mok. G.L. § 101.775

It shall be unlawful for any person to make a communication offering a child for adoption or offering to provide or obtain a child for adoption in any public media unless that person is acting on behalf of an authorized adoption agency. Violation of this section is 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 (20%)

Address the following two questions under the statute that follows (which was adopted in class) using MPC principles of construction and legislative history from our legislative process.

1) Dave Deft had sexual intercourse with the victim who claims that she did not consent. She claims that, as a result of Dave’s implied threat to harm her if she did not submit, she was in reasonable fear and did not, therefore, actively resist. In defense, Dave claims that he did not intend his words or conduct to be a threat nor did he have any idea that they would be construed that way by the victim. Assess the validity of this defense,

2) In the course of an episode of heavy petting with his girlfriend, Dan Defendant started to insert his finger into her vagina. When he did so, she said "no" and he stopped. She did not leave and continued "making out" with him. He tried to insert his finger again and, although she initially drew back somewhat, she did not say no. After he had his finger inside, she relaxed somewhat and didn’t struggle or complain. She now claims he inserted his finger without consent. Dan is charged with rape. He seeks to defend on the following grounds:

a) although he was aware that it is a crime to have deviate sexual intercourse without consent, he was unaware that insertion of a finger into the vagina constitutes deviate sexual intercourse

b) he was not aware his girlfriend did not consent to his actions and he honestly believed she had consented.

Assess the validity of these defenses under the following statute.

Forcible Rape (under MPC)

Whoever, without consent, knowingly engages in deviate sexual intercourse or sexual intercourse

1) by way of forcible compulsion, or

2) with a person who is:

a) incapable of giving consent due to mental deficiency or disease which was known or reasonably apparent to the offender, or

b) unconscious of the nature of the act when such unconsciousness was known or reasonably apparent to the offender

is guilty of a class A felony.

Rape (under MPC)

Whoever engages in sexual intercourse or deviate sexual intercourse with another person without that person’s consent is guilty of a Class C felony

For purposes of this section:

1) it shall not constitute consent where the victim’s assent is obtained through a knowing misrepresentation made by the offender that the sexual intercourse is a medically or therapeutically necessary procedure

2) a victim's assent or failure to resist shall not constitute consent where the victim was incapable of giving consent or resisting because of the effect of any alcoholic liquor, narcotic, drug or other substance if the condition was known by or was reasonably apparent to the offender.

Definitions:

Deviate sexual intercourse means any act involving the genitals of one person and the mouth, tongue 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.

Sexual intercourse means any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results.

Forcible compulsion shall mean:

1) physical force that overcomes a victim’s reasonable resistance, or

2) use of a substance administered without a victim's knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse, or

3) creation of a reasonable fear of harm, or

4) a threat, express or implied, that places the victim in reasonable fear of death or serious physical or emotional injury to themselves or another.