3.7. Substantive Law: Defining Crimes, Inchoate Liability, and Accomplice Liability

Lore Rutz-Burri and Kate McLean

Substantive Law 

Substantive law includes laws that define crime, meaning laws that tell us what elements the government needs to prove in order to establish that a crime has been committed. Substantive law also includes the definitions of inchoate crimes (“incomplete” crimes, including conspiracy, solicitation, and attempts), and sets forth accomplice liability (when a person will be held responsible for working in concert with others to complete a crime). Substantive law also identifies the defenses that a person may raise when they are charged with a crime, and indicates the appropriate penalties and sentences for crimes.

Today, the great majority of substantive law has been codified and is found in states’ particular criminal codes or in the federal code. Generally, criminal codes are separated into two parts: a general part and a special part. The general part typically defines words and phrases that will be used throughout the code (for example, the word “intentionally”), indicates all possible defenses and provides the general scheme of punishments. The special part of the code then defines each specific crime, setting forth the elements of the crime (components of the crime) the government must prove beyond a reasonable doubt in order to convict a defendant of a crime.

Elements of the crime

With the exception of strict liability crimes and vicarious liability crime (discussed below), the government will always have to prove that the defendant committed some criminal act – the actus reus element – and that he or she acted with criminal intent, the mens rea element. When proving a crime of conduct, the state must prove that the defendant’s conduct met the specific actus reus  requirement. This means that the government must prove that the defendant’s behavior was either a voluntary act (i.e., not the product of a reflex or done while asleep, or under hypnosis), a voluntary omission to act (meaning that he or she failed to act) when there was a legal duty to do so, or that they possessed some item that they should not have. To meet the mens rea element, the state must prove that the defendant’s act was triggered by criminal intent. (This is NOT the same thing as motive.) The elements of a specific crimes may also include what is referred to as attendant circumstances. Attendant circumstances are additional facts set out in the substantive law’s definition that the state must prove to establish a crime (for example, that the place burglarized was a dwelling, or that the property value is at least a certain amount).

Occasionally, a statute will not specify the mens rea  element. When this occurs, courts need to decide whether the legislature has intended to create a strict liability crime or has just been sloppy in drafting the law. Strict liability crimes are ones where the government does not have to prove criminal intent. Courts are disinclined to find in favor of strict liability statutes unless there is a clear indication that the legislature intended to create strict liability. The courts will examine legislative history, the seriousness of harm caused by the crime, whether the crime is male in se  or mala prohibitum, and the seriousness of the punishment in deciding whether the state should be relieved of its obligation to prove criminal intent of the defendant. As a general rule, the courts are more likely to find that a crime is a strict liability one when there is a small punishment and when the crime is more of a recent, regulatory offense (mala prohibitum crime). The most common strict liability crimes are traffic offenses, although there are other that imply more harm, namely statutory rape.

In the News: Can a Sleepwalker Act with Intent?

In 2007, a British man was accused of raping a 15-year-old girl; however, he maintained in his defense that he suffered from chronic and uncontrollable sleep-walking, amongst other forms of “para-somnia.” The defendant testified, “I was drunk and went to sleep, then I woke up and my life was over. I was standing outside, completely naked, wondering what the hell I was doing there.” Should a person who commits a crime while sleepwalking be held responsible? Read more on the outcome of the case here.

Inchoate Offenses: Attempt, Conspiracy, and Solicitation 

In order to prevent future harm, state and federal governments have enacted statutes that criminalize attempts to commit crimes, solicitations to commit crimes, and conspiracies to commit crimes. The common law also recognized these inchoate offenses or incomplete offenses. With each of the inchoate crimes, the state must prove that the defendant intended to commit some other crime, the highest level of criminal intent. For example, there is no crime of attempt, but there is a crime of attempted theft. State laws vary in their approaches and tests of whether the defendant has taken enough steps to be charged with attempt, but all agree that mere preparation does not constitute an attempt. Conspiracies involve an agreement between at least two parties to commit some target crime.  Some jurisdictions also require that there be an overt act in furtherance of the crime (some outward movement towards the commission of the target crime) which reaffirms there is a meeting of the minds between the co-conspirators. Solicitations involve a person asking another to commit a crime on his or her behalf, and they do not even require an agreement by the person requested to do so.

Accomplice Liability: Aiders and Abetters 

People who commit crimes frequently do so with assistance. Substantive criminal law describes when a person can be found guilty for the acts of another. For example, the common law recognized four possible parties to a crime: principal in the first degree, principal in the second degree, accessory before the fact, and accessory after the fact. Many complicated legal rules developed to offset the harsh common law treatment of most crimes as capital offenses (death penalty eligible). The modern statutory trend has been to recognize accomplices (people who render assistance before and during the crime) on one hand, and accessories after the fact (people who help the offender escape responsibility after the crime has been committed) on the other. Accomplices are treated as equally liable as the main perpetrator, under the principle, “the hand of one is the hand of them all.” Accessories after the fact are typically charged with hindering prosecution or obstructing justice, and are punished to a lesser extent than the main perpetrators.

Vicarious Liability

A few states have enacted vicarious liability statutes seeking to hold one person responsible for the acts of another, even when they did not provide any assistance and may have not even known about the other’s behavior. These statutes, generally violate our belief in individual responsibility –  that only people who do something wrong should be blamed for the crime. Vicarious liability imputes (transfers) both the criminal intent and the criminal act of one person to another. Courts generally invalidate these vicarious liability statutes, but have at times upheld vicarious liability based upon an employer/employee relationship, or a parent/child relationship.


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