I may be biased because of my background, but it drives me nuts when an author writes about a crime, but doesn't have a solid grasp of the basic rules of crime and the criminal justice system.
Repeat after me: A crime is only a crime if it's a crime. As authors, we can't just make something up and hope readers won't notice the crime your character committed wasn't actually a chargeable offense. While we do have creative license, our plots need to be realistic, especially if the book is set in our world.
In order for a crime to be prosecuted certain things must be established. These things are known as the elements of the crime. Necessary elements are:
Let's break it down.
- Law – A law governing the behavior must exist whether you're aware of the law or not (meaning ignorance of the law isn't a defense).
It's not against the law to pick up a $10 bill you find in the middle of the street, but it is against the law to rob someone for that $10.
· Intent – ("mens rea" or guilty mind) - one must intend to commit the crime and have the mental capacity necessary to establish or support the intent.
If I run over someone who walks out in front of me, I lack intent. But if I hit someone on purpose, I do not lack intent. Additionally, if I hit someone because I'm driving recklessly, I can be charged with a crime.
Mental Capacity Example #1:
I aim a gun at you and pull the trigger. I know the gun is loaded, and that it will kill you. I also know this is wrong. - I had the mental capacity to form intent.
Mental Capacity Example #2:
If a toddler aims a gun and pulls the trigger, he or she lacks the mental capacity to form intent because of age.
Diminished Capacity – (the inability to form intent due to a lack of mental capacity or understanding) - can occur in instances of mental illness or retardation, in youthful offenders (as in example 2 above), in crimes of passion, or during periods of intoxication.
Strict liability – crimes in which intent is not required in order to be charged. Strict liability crimes include minor crimes like parking violations, as well as crimes such as drunk driving or statutory rape.
I don't see the "No Parking" sign, so I pull up and park. When I get back to my car, I have a ticket on my windshield. Even though I didn't mean to break the law, I still did so, and can be required to pay the fine.
Felony Murder Rule – if someone dies during the commission of the crime in certain areas of the US, all individuals participating in that crime can be charged with murder regardless of intent.
Example: Tom and Jane decide to break into Bob's house and steal his safe while he's not home. Jane brings a gun without telling Tom. Bob hears them, and bursts into the room. Jane shoots Bob and he dies. Even though Tom didn't touch the gun or know Jane had it, under the Felony Murder Rule, Tom can be charged with Bob's murder.
· Act – ("actus rea" or guilty action) – In order for a crime to happen, steps to commit the act must occur or the act itself must occur
I buy a gun to commit a murder – I can be charged with a crime
I commit a murder – I can be charged with a crime.
I conspire with John to commit a murder, and John buys a gun – I can be charged with a crime of conspiracy.
I plan a murder but never take any further action – I can't be charged with a crime.
Inept Criminal – if I attempt to commit the crime, but fail because of my own ineptitude, I can still be charged with the crime. Being a bad criminal is not a defense.
· Concurrence – act and intent must occur either at roughly the same time or the act must be motivated by the intent
I'm doing the speed limit, and I accidentally run someone over and kill them. When I get out of the car, I realize the victim is Bob, who I hate. I dance and exclaim how happy I am Bob is dead. – I did not commit a crime because the act was not motivated by intent nor did the act occur when intent was established. It was purely coincidental.
Temporary Concurrence – Intent and Act occur at roughly the same time.
Example: Jane discovers her boyfriend is cheating on her, so she decides to kill him. She grabs the knife on the counter and stabs him to death.
Motivational Concurrence – The Act is motivated by the establishment of Intent.
Example: Tom needs money to pay his rent, so he decides to commit a crime. He learns that Jane has thousands stashed around her house. One month later, Tom breaks in to Jane's house to steal the cash.
Not sure if your plot contains all the elements necessary to make it work? Ask a professional! Lawyers, judges, CJ professors, and police officers are great sources of information, and many are more than willing to help answer research questions for authors.
Note: Not all possibilities are contained in this overview. If in doubt, research!
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