DiscussionNotesWeek6 - Discussion Notes Week 6 Basic...

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Discussion Notes Week 6 Basic Doctrinal Points : 4 Basic Elements (that are necessary, but not sufficient) for criminal liability: 1. a prohibited act that results in some kind of social harm Actus reus 2. a prohibited mental state mens rea or “guilty mind” 3. a chain of causation that links the D’s actions with the social harm (needs to be both a but-for and proximate cause) 4. concurrence between the mens rea and the actus reus Something to keep in mind throughout: Tension within the law: between a ‘culpability’ approach and a ‘social harm’ approach to criminal punishment. When a person had died, does it make more sense to inquire into the badness of the perpetrator or to focus on punishing the bad result? Think back on how this tension might be translated into the dialogue between retributivism and utilitarianism. Act Requirement : Proscription against thought crimes Case of Brian Dalton: D pleaded guilty in 2001 to “pandering obscenity involving a minor” under an Ohio law which states that “no person shall ‘create, reproduce, or publish’ any obscene material that has a minor as one of its participants or portrayed observers.” D “confronted his demons by writing a journal filled with fictional tales of child molestation and torture.” “Dalton’s stories center on three children, ages 10 and 11, who are caged in a basement, molested and sexually tortured. Yet court records show no evidence that he acted on these dark fantasies.” “[A] psychologist hired by the prosecution said they were among the most disturbing things he’d encountered in his 21- year practice.” “As the appeals court noted, ‘The private possession of obscene material is constitutionally protected. . . . However, the private possession of child pornography may be constitutionally prohibited.” Prosecutors contend that Dalton “had ‘admitted to prior sex offenses, although he was never charged, and say some of this writings show that he ‘is on the precipice of offending against another real child.’” One of the ironies of the case was that “Dalton’s past psychological treatment required him ‘to keep a deviant sexual fantasy journal.’
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