This article is written by Shreya Patra of Xavier University, Bhubaneshwar. This article covers sexual offenses, crimes involving force, crimes involving fear, crimes involving physical restraint in the United States, the history behind their evolution, the current status of such crimes and offenses, and some landmark cases that have shaped how they are seen now, along with the future implications they carry.

It hsa been published by Rachit Garg.

Table of Contents

Introduction

The United States has always seen a great number of offenses being reported. Be it offenses related to crimes driven by force, crimes driven by fear, crimes driven by physical restraint, or even sexual offenses, as a matter of fact. The most recent case (R.S. vs. Bd. of Educ. Shenendehowa Cent. Sch. Dist. (2017)) of an autistic and minor student at Shenendehowa High School has scared parents of school going students. The accused was restrained face down. The reason for this action was a dispute between him and the staff of the school he was studying at. Since Alex does not speak, it was difficult to understand the situation. While the school continues to keep quiet, citing confidentiality, the State investigates the gross violation of the regulations by not carrying out due process of law and restraining the student and whether it was an appropriate measure. 

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In the state of Minnesota, an elaborate report was released. And they could now be facing federal oversight for this. This elaborates on the discrimination black and indigenous people face by the government authorities, especially the police. From using an unrequired amount of force when there is no immediate threat to using neck bands, tasers to apprehend the accused and making use of guns in public, nothing seems to have changed, but the federal oversight does provide some relief to the residents who are tired and scared of the police.

The case of George Floyd (State of Minnesota vs. Derek Michael Chauvin (2021)) being restrained for nine long minutes by Officer Chauvin when he possessed no such threat or means to escape, which ultimately led to his death, just proved how the Minnesota Police’s functioning needed to be improved to prevent such incidents from happening again. It is important to ensure the safety of the residents. Such a measure had to be taken. No amount of change can reverse the loss caused to society by such unreasonable actions, but such unreasonable actions can be taken as learning in order to prevent such incidents from happening in the future.

The most shocking part of domestic violence can be found in its loopholes. The same was the case in the state of Ohio. While the state of Ohio bans domestic violence as per their law, it exempts the accused from any liability if they successfully prove that it was done under the influence of drugs or other substances that made it difficult for them to comprehend their actions and impaired them. Ohio seeks to remove such an exemption, as it is being used as an exception in most cases of such reports. 

History of sex offenses and crimes involving force, fear, and physical restraint

History of sexual offenses against women

Rape as a sexual offense 

The first wave 

In the early years of evolution, much before the 1700s, women in the United States were suffering from a constant state of helplessness. They were forced to fit into patriarchal society, not having any identity as individuals and having no say in many matters. They were to keep their mouths shut and act as per their male guardians, who were their fathers in the instance of a young unmarried woman and after marriage. By the late 1700s, the women had gathered, and this turned into a movement for them to fight against such helplessness.

This movement highlighted the need for women to be treated as individuals and given the same status as men.

One of the key points raised in this movement was that women were the property of their husbands and fathers. Rape was a crime related to property; the same can be understood as per its Latin root, which means “to seize” or “to steal”. This meant the rape of a woman was done against their husbands/fathers due to women being their husbands/fathers property. The same applied to the common law that existed in the United States. The United States combined the Code of Hammurabi, as per which there awaits the punishment of death on those individuals who force sex on another man’s wife or virgin woman that stays at her father’s house,” and the Law of the English 1600s, which defined rape again as an act of carnal knowledge inflicted on any woman who is at least above the age of ten years that is done against her wishes. The very first common rape law combined law on rape only talked about rape on women when a man knows her not to be his wife, thus allowing for rape against her wishes, which is still not addressed enough now. 

The Seneca Falls Convention, held in 1848, was the first of its kind and addressed women’s rights in addition to several other problems, including the problem of slavery and racial discrimination at that time. This movement helped to bring more attention to people, as there was continued resistance by men. With huge participation from women at the convention, the Declaration of Sentiments was passed in hopes of further solidifying and spreading the movement. The movement was later held again in New York to address a larger number of individuals who shared the same views and hoped to employ more individuals in their plans.

The second wave

The second wave can be marked by the start of the era in 1950. Women got great support from each other and reached greater heights. In 1970, there began the anti-rape movement. As women went on to champion their causes in support of different rights, rape was no  exception. Women began speaking openly about rape in hopes of preventing such atrocities from happening to them. This helped them advocate and push forward for their rights and the protection of their dignity. As several victims and survivors stepped forward and spoke out, more helplines were established, and conferences (like Seneca, Women’s Anti-Rape Coalition, to name a few) were held on anti-rape in order to educate the masses on it.

Sodomy as a sexual offense

Sodomy can be defined as “intercourse or any sexual act of oral or anal nature.” It aimed to punish sexual acts of oral nature and hence brought “oral” under the scope of the definition.

In the 19th century, legal provisions on sodomy had very generic definitions laid down by the Courts of the United States, namely, sodomy is the act of penetration of penis of a man inside the rectum of another man, or a boy, or a woman, or a girl or an animal”. The laws on sodomy in the 19th century focused on protecting the weak against any sexual assault or sexual offense against them but ended up being used for the punishment of homosexual sodomy, which was not their intent. The laws on sodomy also focused on punishing those sexual acts and offenses that occurred without consent.

With the emergence of the 20th century, sodomy laws expanded the scope of their meaning by including sexual acts of men with other men in public places and also such sexual acts against minors.

Domestic violence as a sexual offense

Domestic violence as a crime has undergone several changes over the decades. Before the 19th century, this was not even recognized as a crime and was treated as the norm. Women, being property of their husbands after their marriage, were subject to such physical and mental harm and continued to do so until this was raised as a crime at the end of the 19th century. As Massachusetts and Alabama were the only two states that penalized domestic violence, this became an important point for change, and several debates and opinions were exchanged between women, men and scholars.

Domestic violence as a sexual offense gained legal protection with acts being passed in the years 1994, 2000, and 2005 in order to punish those engaged in such acts. It is important to note that the term domestic violence was first coined and used in 1973 by Jack Ashley in the United Kingdom, and as a topic, it was often kept quiet for discussion and not openly talked about. 

As victims began to openly talk about it, reforms took place. Several discussions were held on how to address it and help such victims get back into society. Safe spaces were created for victims. Victims were urged to openly talk about it with their close ones or psychologists and seek help. Victims also had the option to seek legal remedies. 

History of crimes involving force

Use of force by police 

It has become evident in recent times that there has been an increase in the use of force by police to enforce the law and maintain law and order. It all started in the 1960s and beginning of the 1970s, when there began an increase in the number of different departments amongst the police, including Special Weapons and Tactics (SWAT) forces, which acted as paramilitary units. Over the decades, these numbers grew along with the funding.

The problem with such forces is that they invoke a very dangerous mindset among those living that all zones could become war zones. These forces tend to make it dangerous to deal with civilians. It creates the impression that they step into a place of conflict with the mindset of a person in the military. This might escalate the situation even further, and there are high chances that excessive force may be employed in such matters. 

Regardless of the training for the mind and body of the paramilitary forces, the issue with employing or even increasing such forces is that it is not always a proportionate and appropriate measure to send out such forces to deal with the issue. There might always be a chance that the person they hope to apprehend by employing such paramilitary forces might not be such a threat to society.

Miami in the 1850s -1960s

One such example is the state of Miami. Miami began having police offices in 1850. With a growing population, the concerns and demands for safety and the maintenance of peace and order grew as well. There were also several reported grievances about corruption in the department. After a few decades, in the 1960s, the policy of using force to make arrests was authorized. Even though there were only certain instances as per the policy wherein the use of force would be legal and justified, it showcased the growing inclination of the police force towards aiming to become driven by the use of force. In addition to this, instances where there has been use of force should be supported by a report that contains all the important details of the incident. However, this was not strictly followed. The police continued to use force without justifying their actions, which definitely instilled fear in the minds of the people. 

Miami in the 1960s – 1980s

Subsequently, in 1986, several protests forced the police force of Miami to make changes to their policies. From the 1960s until the 1980s, several changes were made to ensure that the police force would not depend entirely on the policy of using force. In order to appeal to the masses, they also began a huge drive to employ female candidates to truly incline themselves towards making jobs equal for all genders. The police force also addressed the issue of a  lack of people of color in such jobs and provided them with the chance to join them, which helped ensure diversity in such jobs. But all the positive responses fell apart after the killing of Duffie by excessive use of force by police (McDuffie vs. State, 2007). In this case, a white man was beaten to death after he skipped the red light. This showed the residents of color that neither black nor white individuals are safe from the police. And after this, the protests continued, showing no signs of dying down.

Miami in the 1980s – 2000s

In the later part of the 1980s, growing crime, inexperienced number of young officers did not help to provide any relief to the problems before them. The police force finally decided to take important steps (introducing police manuals, standard operating procedures, etc.), which shaped the way the police force functioned in the 1990s and continued to function in the 2000s.

Miami – currently

Police manuals were made that elaborated on the very specific instances wherein apparently “deadly” use of force was made available to them. It also elaborated on other rules, policies, and standard operating procedures (SOP). With the advent of technology came additions to electronic devices and when they could be used by officers. It was time to train police officers properly on how to handle situations to prevent them from escalating further and how they can intervene and deal with the crisis instead of resorting to force. 

Currently, the State of Miami has employed strict measures to ensure that the use of force is the least taken up as a measure to resolve the crisis at hand. In instances where use of force is the only option, the dispatches must be notified, and a conversation with the survivor is later conducted to ascertain the matching of the facts presented before them, as use of force often leads to dire consequences that must be prevented from being taken up. But at the same time, it becomes very difficult to ascertain the police officer’s decision at that moment as it is independently taken up. So training and constant review of policies become the most important steps towards ensuring the police force works safely.

Extortion using force

Extortion existed previously in two forms, that is extortion by using threat, fear, and/or force and extortion of government employed individuals, which is now known as bribery. In bribery, officials of the government often used force to induce others to follow their commands, and they took money for issuing such commands or carrying out such actions. Because of bribery, there was a growth in corruption. Many officials under the influence of money acted away from their specified duties and functions assigned to them or required of them.

History of crimes involving fear

Extortion using fear

Extortion is defined under Section 1951(b)(2) of Title 18 of the United States Code. In the case of extortion, the property of another is obtained with their consent, which is obtained using threat, force, or violence, all of which instill fear in the mind of the one whose property is being obtained. Such consent is not free, and crimes like extortion operate on the element of fear. It becomes very difficult to exactly point out when the crime of extortion actually began. 

Extortion before 1780s

Extortion held a whole other meaning in the past. It is often termed the exchange of property or money for emotional relief. It puts emphasis on emotional relief, i.e., no fear or violence is to be instilled in the mind of another as long as compensation in terms of money or property is provided. However, the term does appear in the 14th century and appears to have been criminalized around that time as well.

Extortion in 1780s to 1820s

Extortion was categorically divided into two different types. Extortion of government serving officials and extortion using fear and/or force. Extortion of government serving officials was prevalent in the past. As for extortion using fear and/or force, the end of the 1700s saw states form their own laws to punish it. New Jersey is one such example, which criminalized it in 1796 (An Act for Regulating the Purchasing of Land from the Indians). Similarly, other states followed suit and criminalized it, like New York in the year 1818 and Rhode Island in the year 1822. 

Extortion in the 1820s 

Extortion in the 1820s became the center of crimes related to terror, and it was all left to law to address this issue. No woman, man or child was free from extortion, as it came as an unfortunate experience to all. With the growing number of threats and fears amongst the members of society, it became evident that only the law could provide the protection that is required at such a crucial moment. Thus, scholars of the legal sphere analyzed the crime and stated that fear was one of the necessary elements to describe extortion.

Extortion in the 1820s to 1840s

During the period of the 1820s to the 1840s, it became evident that it was necessary to codify extortion by including it in the criminal law of the United States, and this can be seen by the statements passed by David Dudley highlighting the fact that the laws do not focus on the point, and that includes the law on extortion. There are references from the French Civil Law by Dudley to codify it, including Bentham’s suggestions (to make the law more specific and address the objective of the crime) on it. It became an important task for the codifiers to identify its objective before they would codify it into laws. Another obstacle in the path of codifying such a law was the common law on it, which explained the relationship between the victim and accused in a complex manner that made it difficult to untangle and understand. Another issue was that the use of the term fear was not accurate, as fear is subjective in nature and all the dimensions of extortion had to be addressed as accurately as possible. 

Extortion post 1840s

Post 1840s extortion observed a paradigm shift in how it was viewed in society. Several debates and discussions took place in addressing all the damage to health, mentally and physically, that took place due to crimes like extortion. The law on extortion has showcased the fact that, with ever changing views and perspectives, it becomes all the more important to formally address such changes. 

This was marked by an article written by Louis Brandesis and Samuel Warren in 1890 titled “Right to Privacy”. This piece highlighted all the debate and discussions on extortion. It also pointed out the lacunae in the law of extortion, stating that it did not work towards providing the right protection for what was required to be protected. The whole piece put forth before the readers the most important point, which is, that the mental pain and mental distress that is caused during extortion are always far greater than any pain that is caused to a person through a bodily injury. Basically, mental distress or mental pain trumps a bodily injury that is inflicted in instances of extortion.

Extortion still has a long way to go. It has to reflect the fears and anxieties of society that are formed whenever it occurs as a crime. It is important to note that the scope and extent of extortion are determined by the scope and extent of a similarly known crime known as robbery, whose history will be discussed in the next paragraph.

Robbery using fear

Robbery is defined under Section 1951(b)(1) of Title 18 of the United States Code. Robbery was one of the earliest recorded crimes in the United States, and its punishment went to the extent of death; such punishment is not available as per current legal provisions. This was marked by the removal of the death penalty for robbery in the year 1786. In the very same year, it was observed that the legal provisions made for the deterrence of crimes, including robbery, were successful in bringing down such reported cases. Subsequently, the death penalty for highway robbery was eliminated in 1839.

Coercion or duress

Coercion and Duress are interchangeably used in the American law system. Coercion or Duress is defined under Section 1591(e)(2) of Title 18 of the United States Code. It refers to any threats, physical restraint, plan or scheme that would force a person to act a certain way under the influence of the one imposing them to do so; if not for doing it, they would be harmed or injured. It can also be simply defined as the use of threats and/or violence, either in express or implied form, that forces a person to act in a certain way in fear of the consequences of not complying with the demands of the accused. What coercion actually does is remove the scope of providing any free consent, or even any consent at all. The accused puts the victim in such a position that the victim has to listen to and comply with the demands of the accused. Under Section 3617 of Title 42 of the United States Code, it is prohibited to coerce any individual. For example, A puts a knife to the throat of B’s child and tells B to hand over all the documents of the building that B owns to A by signing them there. This instance would amount to coercion or duress. 

History of crimes involving physical restraint 

As per the Fifth Amendment to the Constitution of the United States, there can be no unreasonable confinement of any person since it intrudes on their freedom to live and liberty of that whole. Physical restraint is contained under Section 460.114(a)(1) of Title 42 of the Electronic Code of Federal Regulations (e-CFR). 

Sex offenses, assault and battery

Aggravated sexual abuse

Aggravated sexual abuse is defined under Section 2241 of Chapter 109A of Part I of Title 18 of the United States Code. This section elaborately covers how sexual abuse takes place, with whom it takes place, and where it takes place in order to be classified as an aggravated form of sexual abuse in the United States.

Under subsection (a) of this section, if aggravated sexual abuse often goes hand-in-hand with the use of force or the use of threat against the person upon whom it is inflicted in the jurisdiction of the United States, then it would amount to aggravated sexual abuse. 

Under subsection (b) of this section, it would also amount to aggravated sexual abuse if the person used other methods to carry out this sexual abuse by:

  • Using any means to make the person with whom they wish to carry out the sexual act unconscious in any manner.
  • Using any substance without their permission, consent or knowledge diminishes the victim’s ability to comprehend the situation like they would usually be able to if they were sane, and use this to their advantage to engage in the sexual act with them

Punishment for aggravated sexual abuse

Under subsection (c), any sexual act with those individuals who are under the age of 12 but have not attained the age of 16  or have a difference in age of 4 years with the perpetrator, would be punished as per the provisions in this section. This section punishes those who engage in sexual acts with children of the above mentioned ages who are recognized as children and monitored under law. Subsection (d) specifies that there is no need to prove that the defendant has knowledge that the victim’s age is less than 12 years. The punishment for aggravated sexual abuse is a fine or a prison term, which could extend to any number of years/months or lives. If the Court deems it fit, a fine and imprisonment might both be awarded. In order to make the punishment harsh, states might also prevent the convict from having the option of parole or probation.

Sexual abuse

Sexual abuse is defined under Section 2242 of Chapter 109A of Part I of Title 18 of the United States Code. Under this section, sexual abuse is defined as a sexual act on another person by putting them in a vulnerable position due to a threat to life, injury or fear. It becomes important here to account for the fact that, due to such coercion, threat and fear, they are unable to communicate their willingness or decline such an act. Such an act is punishable all over the territory and jurisdiction of the United States.

Punishment for sexual abuse

If convicted of sexual abuse, they shall face a fine and imprisonment for a period ranging from any number of years to life, whatever the Court deems fit, as per Section 2242. The imprisonment term and fine amount differ from case to case.  

Sexual abuse of a minor or ward

As per Section 2243 of Chapter 109A of Part I of Title 18 of the United States Code, sexual abuse of a minor or ward is criminalized. A minor, in this case, is one who falls under the age category of 12-16 or has a minimum 4 years age difference with the accused. A fine or imprisonment of not more than 15 years, or even both, are awarded on the basis of the facts and circumstances of the case. 

Under subsection (b), any individual who engages in sexual acts with a person whom that individual knows to be in official detention or in any custody, supervision or disciplinary authority of that person would be punished under this section with a fine or not more than 15 years of imprisonment or even both.

Under subsection (c), if the defendant successfully shows that both of them were married, or if the defendant has no reason to believe that the victim is not any less than 16 years of age, then the defendant can successfully escape liability under this section. 

Punishment for sexual abuse of minor or ward

If the person is convicted of sexual abuse of a minor or a ward, they face a fine and a prison term of not more than 15 years, or even both, as per what the Court deems fit in that instance.

Abusive sexual contact 

As per Section 2244 of Chapter 109A of Part I of Title 18 of the United States Code, sexual contact with or by another person is punishable 

Punishment for abusive sexual contact. 

Abusive sexual contact refers to those acts that could lead up to a sexual offense or sexual act and hence are punishable. 

The punishment for sexual conduct in different sections can be summed up as follows:

  • Section 2241(a) or (b) – A fine or a prison term of not more than 10 years, or both, as per what the court deems fit.
  • Section 2242 – A fine or a prison term of not more than 3 years, or both, as per what the court deems fit.
  • Section 2243(a) – A fine or a prison term of not more than 2 years, or both, as per what the court deems fit.
  • Section 2243(b) – A fine or a prison term of not more than 2 years, or both, as per what the court deems fit.
  • Section 2241 (c) – A fine or a prison term of any years to life imprisonment or both as per what the court deems fit.
  • Section 2243 (c) – A fine or a prison term of not more than 2 years, or both, as per what the court deems fit.
  • In cases where it involves any special jurisdiction, which may be maritime, territorial or any other institute, facility or prison, then a fine or a prison term of not more than 10 years or both as per what the Court deems fit.
  • In cases where such an act is carried out by the individual on a child who has not reached the age of 12 years, a harsh punishment is given, that is, the maximum term that is possible to be given is doubled and given as the final prison term.

Murder after inflicting offense (including sexual offense) leading to death

As per Section 2245 of Chapter 109A of Part I of Title 18 of the United States Code, any person who commits the offenses elaborated under this act, namely Section – 1591, 2251, 2251A, 2260, 2421, 2422, 2423, and 2425 (definitions for Chapter 109A are contained under Section 2246) and murders the victim, they would be charged under this section with capital punishment or imprisonment for any term or for life.

Punishment after inflicting offense (including sexual offense) leading to death

In instances where, after inflicting an offense (including a sexual offense), the victim is either murdered or killed,  the Court has the capacity to award a capital punishment or a prison term ranging from any number of years to life imprisonment.

Assault

Assault is dealt with under Section 111 to Section 119 of  Chapter 7 of Part I of Title 18 of the United States Code. While many legal provisions deal with assault and battery, the United States deals with assault and battery under one term called assault, of which battery forms a part. Assault can be tried under criminal law or tort law. For the purposes of discussing criminal offenses, we will restrict ourselves to criminal law. 

Assault simply refers to any action that presumably inflicts fear or harm on another person and is ordinarily wrong. Assault is often used in place of battery, or it can mean both simultaneously as well. Whereas sometimes it is simultaneously referred to as assault and battery. Assault can also occur in aggravated form, and the aggravated form of assault is simply called aggravated assault.

The essential components of assault can be summed up as follows:

  • Intention – The presence of mens rea becomes important to prove assault. Assault cannot occur accidentally. 
  • The victim must have some reasonable foresight that the actions of the accused are likely to cause harm or put them in imminent danger. Here, it is not necessary for there to be any fear, but the foresight of the dangers and consequences of actions harming the victim must be visible to some extent. 
  • The actions of the accused must have been such as to cause injury, harm or danger. A simple brush of fingers against the shoulders would not amount to this.

There are three important stages of assault that can help determine whether any assault has occurred or not. They are as follows:

  • The accused acts in a certain manner.
  • The action of the accused in a certain manner leads the victim to comprehend what might happen to him or her.
  • Due to the victim’s comprehension and foresight, the victim acts in a manner to prevent contact with such impending harm.

For example, B pulls out the chair that A was intending to sit on. This would be an instance of battery.

Punishment for assault

The punishments for acts defined under Section 111(a) are as follows

As per general provisions- A fine or prison term of not more than 8 years, or both, may be awarded as per what the Court deems fit.

Enhanced penalty – If the case involves dangerous weapons that can cause death or injury or lead to a dangerous situation, a fine or prison term of not more than 20 years, or both, may be awarded as per what the Court deems fit.

Battery

Battery is the actual action that causes harm to another person physically. It is simply defined as a tortious act done with the intention to cause harm or offend a person. If the other person provides their consent for such acts, then it would not amount to battery as they have explicitly provided their consent. For example, any person who has given their consent to play soccer with another person. They cannot sue the other person for battery in case they get hurt in the process of both of them playing. The intention or mens rea must be of an offensive nature, that is, to cause harm or injury due to such actions.

Battery can go to the extent of causing physical disability or permanent injury in certain cases. If the battery is harmful, then it would end up causing any physical harm or injury, but a battery of an offensive nature ends up causing mental harm by making the victim feel threatened. The connection between assault and battery can simply be summed up as assault is the act of causing fear or harm to another, and the attempted battery would amount to assault. 

The essential components of a battery can be summed up as follows:

  • Acts of the accused.
  • The intention of the accused is to engage in contact with the victim.
  • Such contact can be categorized as dangerous and offensive.
  • The result of such contact is dangerous or offensive and is either in the form of injury fear or something else more permanent.

For example, A swings his bat at B and threatens that if B does not hand him over the documents, he will have another go at it and won’t miss this time. This instance would amount to assault. 

Punishment for battery

The punishment for cases of battery ranges from 30 days in prison to lifetime imprisonment, depending on the severity of the case and what the court deems fit. 

Domestic violence and stalking

Image source: Unsplash

Domestic violence 

Domestic violence is a recently recognized crime. Domestic violence is also referred to as spousal rape. It is the criminal act of a felony, misdemeanor, sexual offense or any violent crime against your spouse, a partner or a person cohabiting with you as a spouse or partner. It is defined under Section 12291(a)(8) of the Violence Against Women Act (VAWA). Domestic violence includes crimes that are punishable with not more than 12 months, that is, 1 year of prison term, if charges are proven successful. California has its own separate section elaborating on what would be classified as domestic violence. It can be found under Section 13700 of the California Penal Code.

Provisions for domestic violence 

Violence Against Women Acts (1994)

The Violence Against Women Act (1994), also known as VAWA, was formulated in 1994 and reauthorized in 2000 and again in 2005. This Act provides the definitions of many sexual offenses like domestic violence, sexual assault, stalking, etc. The sole purpose of this Act is to prosecute the crimes defined under it. This act punishes those who are successfully proven guilty of violent crimes like spousal rape and sexual abuse, among others.

Family Violence Prevention and Services Act (1984)

In addition to this, to ensure post-abuse protection and help, the Family Violence Prevention and Services Act (1984), also known as FVPSA, has been formulated. This Act provides the necessary help and support. It provides crisis aversion by holding sessions on measures one can take to prevent violence in a household; it also helps victims and collects donations (from the public) and funds (from the federal government) to support those in need. It also handles a round the clock telephone that is open to call for those in need and provides support in multiple languages if required or sought.

The Domestic Violence Prevention Enhancement and Leadership

The Domestic Violence Prevention Enhancement and Leadership through Alliances, also known as DELTA, analyzes the factors that could lead up to an instance of domestic violence and works on such factors. These factors could range from the nature of the relationship to other external factors like the community and society as well. The objective of the DELTA program is to reduce the number of reported cases of domestic violence and better understand it by addressing it effectively. 

Stalking

Stalking is elaborately defined under Section 2261A of Title 18 of the United States Code. Stalking can simply be defined as the aggressive pursuit of a person(s) towards a particular individual that is not required by that very individual. It is generally an act that is accompanied by intention. Every State in the United States has prohibited the act of stalking and penalized anyone who does so. Stalking can lead to other violent acts and aggravated offenses; therefore, it becomes essential for the law to penalize it.

The problem with stalking as a crime is that even though the victim is facing instances of stalking, it becomes very difficult to assess the stalker’s intentions, and if they have plans to further escalate the situation, it puts the victim in a dangerous and vulnerable position at all times.

It also becomes very difficult to prove cases of stalking, as they are often based on the observations, feelings and statements of the victim. At times, the stalker may make use of electronic means like email, phone calls, messages, videos, etc., which is referred to as cyberstalking, to portray an interest in the victim.

Before stalking became a crime punishable under the criminal law, instances of stalking were just awarded a restraining order. A restraining order acts as a measure of protection that prevents the accused from coming into contact with the victim or orders them to maintain a certain distance. But this continued dangerous encounter with the victims, and hence criminalizing it, allows the police to arrest such cases and provide the necessary protection to the victims.

Punishment for stalking

If found guilty of charges of stalking, one could face a prison term of five years and/or a fine, which depends on the severity of the crime committed and the Court’s verdict as it deems fit for the case.

Kidnapping and false imprisonment 

Kidnapping under the protection of international law

Kidnapping is a crime in which a person is taken away without their will to another place or location and placed in false imprisonment, restraint, or confinement to prevent their escape from there. The provisions for kidnapping are elaborated under Section 1201 of Title 18 of the United States Code. 

There can be many reasons for kidnapping, some of which are as follows:

  • For monetary benefit by demanding ransom money in exchange for kidnapped individuals.
  • To engage such kidnapped individuals in organ trafficking or sex trafficking.
  • For hostage exchange.
  • For inducing threat, coercion or duress.

Kidnapping becomes a federal crime instead of a state crime in the following instances:

  • The victim’s location involves crossing a state or entering a foreign state.
  • If the offender’s location changes by crossing state lines or entering a foreign boundary.
  • If the offender makes use of any instrument of another state or a foreign state.
  • If the victim holds the status of foreign official, is under international protection at international level, arrived in the United States as an official guest, or is an officer/employee of the United States.
  • If such kidnapping occurs in special maritime or territorial jurisdiction or special aircraft jurisdiction of the United States.

Punishment for kidnapping

If the charges of kidnapping or attempted kidnapping are proven, then the convict may face a prison term of up to 20 years or life imprisonment. 

False imprisonment

False imprisonment is the act in which one person imprisons another person in a closed space and thus interferes with their liberty and ability to move around. False imprisonment is defined under Section 11.404 of Title 25 of the Electronic Code of Federal Regulations (e-CFR). The essential factors in false imprisonment are as follows:

  • Lack of consent
  • Wilful imprisonment
  • Absence of authority of law

In the case of Serra vs. Lappin, 600 F.3d 1191 (2010), it was elaborately discussed that regardless of the time of confinement, it is an act done without consent, law and done with the intention to infringe the liberty of the person. 

In the case of U.S. vs. McMiller, 376 F. App’x 199 (2010), that law of the state of Georgia included a precondition like a serious potential risk of physical injury, making it an enhanced crime. 

In the case of Ameen vs. Merck & Co., 226 Fed. Appx. 363 (2007), the Court highlighted that to induce such confinement, there might be the use of threat, coercion, duress, harm, injury, etc., but not limited to the same.

In the case of Forgie-Buccioni vs. Hannaford Bros., Inc., 413 F.3d 175 (2005), the Court discussed the process in which the act of false imprisonment occurs and how it is effectuated by the act of the defendant. Such an act by the defendant can be carried out by using physical or mental obstacles like fear, and thus it would amount to false imprisonment. Even though the defendant does not have the authority or power by law to do so, he carries out such an act intentionally. 

Defenses available under false imprisonment

Consent given voluntarily

If a person gives their free consent to such confinement or imprisonment, then the person giving such free consent cannot claim false imprisonment. This becomes a defense for the defendant to claim.

For example, A gives his free consent to B, allowing B to confine A in an isolated room. This would not amount to false imprisonment, as lack of consent is an essential element of false imprisonment.

Privilege of police

The police have the right to detain those individuals who they have probable reason to believe are engaging themselves in any wrongdoings or if they have probable reason to believe that individual has committed a crime. 

Privileges of shopkeeper

The shopkeepers have the right to protect their shops from any theft that might occur. In the exercise of such a right, they may detain any individual who appears to have stolen goods from their shop in order to cross-check if they have truly purchased them and continue to detain such a person till the police or any other authority arrives. However, such detention must be reasonable, and if it is unreasonable, the accused shoplifter has the option to sue for unreasonable false imprisonment. 

Arrest of citizen

A citizen who is not an official of law enforcement can arrest an individual and call for such authority if the apparent crime has been committed before them. But this does not imply that the citizen holds the place of an official of law enforcement; rather, they are providing the necessary help to such authorities and officials. 

Punishment for false imprisonment

If the charges for false imprisonment are proved against the defendant, they may face prison term of 10 years or more as per what the Court deems fit in that instance

Important case laws

Lawrence vs. Texas (2003)

Facts of the case

In Lawrence vs. Texas, 539 U.S. 558 (2003), John, Tyrone and Robert were together on an evening. A fight erupted between them, due to which Robert angrily left the apartment where they were spending the evening. Soon after, the sheriff received a phone call about disturbances at that apartment, so he arrived at the scene. After there was no response, they entered the place, only to find that John and Tyrone were involved in sex. They were both apprehended for not complying with the laws of Texas on sodomy, which penalized any sexual act with a person of the same gender. 

Issues involved in the case 

First stage of the court hearing: 

Issues at the first stage of Court hearing: There were several issues raised before the Court and they can be summed up as follows,

  • Is the Texas sodomy law legal?
  • Has there been a violation of Texas sodomy law?

In the initial Court hearings, the Court was overburdened. Many were of the view that the United States was targeting gays and their community openly. John and Tyrone admitted all the charges except their guilt in engaging in such an act, which they considered intimate, and the state had no right to intrude upon and dictate upon it. 

Second stage of the court hearing: 

Issues at the second stage of Court hearing: The following issues were raised in the second stage of Court hearings at the Supreme Court,

  • As per the Due Process Clause of the Fourteenth Amendment, are the petitioners free to engage in their own private affairs and acts?
  • Is the Texas sodomy law targeting couples of same sex?

Judgment of the Court

All such laws related to the Texas law of sodomy, including it, were ultimately struck down by the Court. It mentioned that the judgment given in Bowers vs. Hardwick (1986) was incorrect and overruled by the Supreme Court of the United States. 

This case helped the courts work towards laws that do not intervene in the fundamental rights of individuals, namely privacy and any such regulation would be unconstitutional. 

U.S. vs. Gonzalez (1999) 

Facts of the case

In the case of United States vs. Gonzalez, 183 F.3d 1315 (1999), Gonzalez, along with other people, planned to obtain cocaine. This cocaine obtained would be used to establish their business of sale and distribution of it. In order to carry out this business, they obtained guns and other weapons. Gonzalez did not even care about the victims and conducted his business in their presence. Often restraining the victims mentally in order to prevent them from reporting this crime, he did so by holding them at gunpoint, which made them fear for their safety, and they would not do anything suspicious and listen to him. Due to the work of an informant, the police forces and other departments involved were able to successfully catch them and also recover many items they had discarded during the time they were being chased.

Issues involved in the case

Issues that were raised in the case:

  • Would no clear appearance of physical restraint amount to physical restraint at all?
  • Due to the absence of an attorney, would the police interrogation amount to violation of Sixth Amendment?
  • Whether the charges levied against all three defendants are sufficient and are presented with sufficient evidence in support of the same?

Judgment of the Court

The United States Court of Appeals held the defendants guilty of most of the charges and sentenced them to prison and a fine in addition to their prison term. The Court laid great emphasis on understanding the meaning of physical restraint and whether it would apply to this case as there was no visible physical restraint here. The Court assessed the guidelines laid down under the United States Sentencing Commission Guidelines. Upon their analysis, they decided to adopt a broader definition of physical restraint to ensure its scope was covered. That means that anything that prevents a person from making any physical movement would amount to physical restraint. Physical restraint does not have to be hands cuffed using handcuffs, hands and legs tied up with ropes, or a gag in the mouth. And thus, in this case, there has been physical restraint inflicted on the victims by restraining them at gunpoint.

People vs. Brown (2011) 

Facts of the case

In the case of People vs. Brown, 192 Cal.App.4th 1222, 121 Cal. Rptr. 3d 828 (Cal. Ct. App. 2011), Bridget was in a relationship with the defendant (Brown). She was much smaller in size as compared to the defendant, who was already trained in martial arts. One day, during an altercation, the defendant choked her. Bridget confided this to her workplace friend, Ibarra and showed the remnant marks on her neck to her as well. After a few days, Ibarra saw Bridget at the mall with the defendant, but she looked visibly disturbed and did not wave back at her. Bridget broke up with the defendant and got into another relationship, and during the time she was with her new boyfriend, the defendant arrived and questioned her. They talked, and then he left, only to end up following her current boyfriend at that time. Bridget confided in others that she was worried as the defendant threatened to harm her and whomever she would get into a relationship with. One day she talked to the defendant on the phone after noticing several instances where he had followed her. She left the house, so her disappearance was reported. 

Issues involved in the case

Issues in the case:

  • Whether the defendant’s previous acts of domestic violence in previous relationships are to be considered or not.
  • Whether the defendant is guilty of the murder of Bridget and if it is connected to domestic violence against Bridget or not.

Judgment of the Court

The Court of Appeal of California held that the instances of domestic violence in previous relationships are admissible as evidence in addition to the evidence of domestic violence against Bridget in order to prove the arguments of the prosecution, as they are all relevant. The Court turned to Section 1109(d)(3) to establish the remoteness and connection of the domestic violence to the murder, and he was convicted of murder.

State vs. Holbach (2009) 

Facts of the case

In the case of State vs. Holbach (2009), Holbach, the defendant, appealed against an order issued to him. The order directed the defendant to stay 500 feet away from Dixon and avoid any contact with her. He was convicted of stalking Dixon and is now on probation under supervision. A month after his probation began, Dixon observed the defendant on multiple occasions at the different locations she was at. There were multiple signs that showed he was closely following her, including stopping the car whenever she stops her car, clicking pictures of her, parking near the routes she often takes, pulling up before her, etc. to grab her attention and scare her even further. A restraining order was issued, which he appealed, after which the probation on supervision was revoked and he went to jail since he did not maintain the required distance from the victim. After his release, Dixon noticed his continued habits, which resulted in his jail time. He was again charged with stalking, along with other charges.  He appealed, stating that this interferes with his right to travel and engage in his daily activities, which he is protected to carry out legitimately and as per the constitution. 

Issues involved in the case

Whether constitutional rights are curbed by the probationary terms issued to the defendant?

Judgment of the Court

In this case, the Supreme Court of North Dakota recognized Holbach’s right to carry out constitutionally valid activities that are part of his daily activities. However, these activities are restricted and curbed due to the terms and conditions of his probationary orders issued by the Court. The Court observed that on multiple occasions, even on being charged, he failed to comply with judicial orders, probation orders, restraining orders, etc. And therefore, the Court sees no reason as to how it could restrict his right to travel. If such activities allow his engagement in stalking, etc., which is prohibited by the Court, then it would not be constitutionally valid in any manner. The Court also observed that the defendant knowingly engaged in such activities to scare and engage with the victim further.

United States vs. Rodriguez-Moreno (1999)

Facts of the case

In the case of United States vs. Rodriguez-Moreno, 526 U.S. 275 (1999), Moreno, the defendant, was hired by a drug distributor to track down another person, also a drug dealer, who had stolen drugs from one of the distributors while holding the middleman in captivity. The defendant traveled across several states, unable to locate the person, and threatened to kill off the middleman using a revolver he had with him. The middleman luckily escaped from such a dangerous situation and reached out to police authorities. The defendant was arrested, but he denied charges as the Government had yet to prove all charges, including the use of firearms.

Issues involved in the case

The connection of firearms to crime or violence is only in the place where they were used and/or carried or not.

Judgment of the Court 

In this case, the United States Supreme Court held that the situation of kidnapping comes to an end when the victim is free and back to safety from the clutches of the kidnapper, as it would be wrong to state that it is determined by geographic locations only. Also, the use of firearms in one location only does not matter; the kidnapping continued across states, and thus he shall be charged accordingly.

Ernesto Guarro, Appellant, vs. United States of America, Appellee (1956)

Facts of the case

In the case of Guarro vs. United States of America, 237 F.2d 578 (1956), the appellant, Guarro, assaulted a police officer. The defendant was out of the theater and standing on the balcony. As he was returning from the balcony to the floorway through the staircase, he leaned on the wall for a few seconds. During the time he was on the staircase he was approached by the appellant. The appellant questioned him for waiting there and not watching the movie. And after giving him a reply, the appellant reached out his hand and put it on the defendant’s private parts. The appellant then went on to ask the shocked defendant whether he wanted to commit an act of a pervasive nature. The defendant agreed, then identified himself before the appellant and put him under arrest.  

Issues involved in the case

  • Whether free consent would amount to assault and/or battery?
  • Whether the arrest is justified?

Judgment of the Court

The Court of Appeals for the District of Columbia Circuit held that there is no issue as to the fact that assault and/or battery occur without consent. In this case, the presence of free consent constitutes the fact that the case cannot be categorized under assault or battery. Thus, this defeats the entire intent of the prosecution. Additionally, the arrest due to assault is also defeated for this reason.

McMartin vs. Children’s Institute International (1989)

Facts of the case

In the case of McMartin vs. Children’s Institute International, 212 Cal.App.3d 1393, 261 Cal. Rptr. 437 (Cal. Ct. App. 1989), one day the Department of Police received a call. A mother of 2 year old Billy brought some serious allegations against Ray Buckey, a worker at McMartin Preschool. She accused him of sexually abusing her son. An investigation was launched, but it was stopped due to the lack of evidence to support such claims. Parents were asked to examine their children for any marks and were urged to reach out to the police. It was reported on the news that the preschool was apparently used for child pornography and carrying out rituals. Children were scared off and told not to tell anyone about this. While the trial continued, Judy, the mother of Billy, who brought these charges, was diagnosed with a mental illness called paranoid schizophrenia. 

Issues involved in the case

  • Whether such abuse truly took place by Ray?
  • Whether such abuse truly took place on the premises of the preschool?

Judgment of the Court

The Court of Appeal of California, after conducting several interviews with the children and their investigations on the premises of the school, found the claims to be false. Judy’s diagnosis of mental illness further substantiated such claims. Ray and his mother were later freed on bail and then acquitted of all the charges they were facing in court.

Conclusion

The criminal law system in the United States aims to deter the prevalence of crime by simply using punishment and fines. The criminal law system of the United States focuses on the innocence of the accused until he/she is proven guilty of all charges. The prosecution usually occurs against the entire State or Federation because it is a crime against the entire society. If the charges are proven successful, the punishment awarded may be a simple prison term or may extend up to life imprisonment, and in the most extreme cases, capital punishment may be awarded.

The American criminal justice system has created an intricate network of working. It stands to protect the rights of the individuals using this very system they have created. At the same time, they hold high regard for the saying “innocent until proven guilty”. Even though the criminal justice system is overwhelmed by such intricacies, it continues to hold on to the fact that the accused must be proven guilty beyond any reasonable doubt, which could question such charges. 

Frequently Asked Questions (FAQs)

What are the sexual offenses recognized as per law in the United States?

Sexual offenses like rape, sexual assault of majors and minors; distribution of obscene matter are defined in Sections 120 to 120c of Subtitle A of Part II of Chapter 47 of Subchapter X of Title 10 of the United States Code. Other such offenses like aggravated sexual abuse; sexual abuse of minors, wards, and those in defense; abusive sexual contact, and genital mutilation of females are defined under Chapter 109A of Title 18 of the United States Code.

What are the crimes involving force recognized by law in the United States?

Crimes like murder, rape, robbery, aggravated assault, use of force by police, extortion and robbery are some of the crimes that use force in the United States. 

What are the crimes involving fear recognized by law in the United States?

Most crimes in the United States have an element of fear in it, be it sexual offenses like rape or sodomy or other offeses like murder, homicide, robbery, extortion, etc. 

What are the crimes involving physical restraint recognized by law in the United States?

Crimes that involve physical restraint include false imprisonment, kidnapping, and other offenses that can also be tied to them in order to carry them out. 

References 

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