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Structure and Function in Criminal Law$

Paul H. Robinson

Print publication date: 1997

Print ISBN-13: 9780198258865

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198258865.001.0001

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(p.221) Appendix B: A Draft Code of Adjudication

(p.221) Appendix B: A Draft Code of Adjudication

Source:
Structure and Function in Criminal Law
Publisher:
Oxford University Press

  1. Part I. Violation of Code of Conduct

    1. Article 10. Violation of Code of Conduct

      Section 100. Violation of Code of Conduct

    2. Article 11. Provisions Relating to Adjudication of a Violation of the Code of Conduct

      1. Section 110. Causation Defined

      2. Section 111. Requirements for Violation of Code of Conduct Section 49 (Attempting Commission of a Crime)

      3. Section 112. Requirements for Violation of Code of Conduct Section 50 (Acting with Another Toward Commission of a Crime (Complicity, Conspiracy, and Solicitation))

      4. Section 113. Requirements for Violation of Code of Conduct Section 51 (Creating a Prohibited Risk)

      5. Section 114. Consent Defence

  2. Part II. Liability Assessment

    1. Article 20. Minimum Requirements for Liability

      1. Section 200. Minimum Culpability Required

      2. Section 201. De Minimis Violation

    2. Article 21. Doctrines of Imputation

      1. Section 210. Divergence Between Result Intended or Risked and Actual Result

      2. Section 211. Inculpatory Mistake

      3. Section 212. Accountability for Conduct of Another

      4. Section 213. Voluntary Intoxication

    3. Article 22. Excuses

      1. Section 220. Disability Excuse: Involuntary Conduct

      2. Section 221. Disability Excuse: Insanity

      3. Section 222. Disability Excuse: Involuntary Intoxication

      4. Section 223. Disability Excuse: Immaturity

      5. Section 224. Disability Excuse: Duress

      6. Section 225. Disability Excuse: Impaired Consciousness

      7. Section 226. Mistake Excuse: Mistake of Law

      8. Section 227. Mistake Excuse: Mistake as to Justification

      9. Section 228. Rebuttable Presumptions

    4. Article 23. Nonexculpatory Defences

      1. Section 230. Timing of Assertion of Nonexculpatory Defence

      2. Section 231. Waiver of Nonexculpatory Defence

      3. Section 232. Diplomatic Immunity

      4. Section 233. Prosecution Barred by Former Prosecution

      5. Section 234. Governmental Immunity

      6. Section 235. Incompetency

      7. Section 236. Period of Limitation for Commencement of Prosecution

      8. Section 237. Entrapment

    5. Article 24. Causing the Conditions of One's Own Defence

      1. (p.222) Section 240. Causing the Conditions of One's Own Justification or Excuse Defence

      2. Section 241. Causing the Conditions of One's Own Nonexculpatory Defence

  3. Part III. Grading

    1. Article 30. Base Grade of Offence

      1. Section 300. Grade of Offence

      2. Section 301. Grade Levels

      3. Section 302. Grade of Offence When Divergence Between Result Intended or Risked and Actual Result

      4. Section 303. Grade of Offence If Inculpatory Mistake

      5. Section 304. Base Grade

    2. Article 31. Adjustments to Base Grade

      1. Section 310. Adjustment for Greater Culpability

      2. Section 311. Adjustment According to Extent of Participation in Assisting an Offence by Another

      3. Section 312. Adjustment for Ineffective Renunciation of Attempt, Conspiracy, or Solicitation

      4. Section 313. Adjustment for Partial Disability

      5. Section 314. Adjustment for Selection of Victim

  4. Part IV. General Provisions

    1. Article 40. Miscellaneous

      1. Section 400. Principles of Construction

      2. Section 401. Definitions

      3. Section 402. Limitations on Convictions for Multiple Offences

    2. Article 41. Verdict Forms

      1. Section 410. Verdict Form: No Violation of Prohibitions or Duties

      2. Section 411. Verdict Form: Justified Violation of Prohibition or Duty

      3. Section 412. Verdict Form: Blameless Violation

      4. Section 413. Verdict Form: Not Punishable

      5. Section 414. Verdict Form: Guilty

Part I. Violation of Code of Conduct

Article 10. Violation of Code of Conduct

Section 100. Violation of Code of Conduct

A person violates the Code of Conduct, for the purposes of this Code of Adjudication, if the person violates a prohibition or duty in Part II of the Code of Conduct and does not have a justification for such violation under Part IV of that Code.

Article 11. Provisions Relating to Adjudication of a Violation of the Code of Conduct

Section 110. Causation Defined

An actor is causally accountable for a result if:

  1. (p.223) (1) his or her conduct is an antecedent but for which the result in question would not have occurred; and

  2. (2) the result is not:

    1. (a) too remote or accidental in its manner of occurrence, or

    2. (b) too dependent upon another's volitional act,

    to have a just bearing on the actor's liability or on the gravity of his or her violation.

Section 111. Requirements for Violation of Code of Conduct Section 49 (Attempting Commission of a Crime)

  1. (1) An actor violates Code of Conduct Section 49 (Attempting Commission of a Crime) if he or she engages in conduct that constitutes a substantial step toward the commission of a violation which is strongly corroborative of the actor's culpability.

  2. (2) The following are examples of what constitutes a substantial step:

    1. (a) lying in wait, searching for, or following the contemplated victim of the violation;

    2. (b) enticing or seeking to entice the contemplated victim of the violation to go to the place contemplated for its commission;

    3. (c) reconnoitring the place contemplated for the commission of the violation;

    4. (d) unlawful entry of a structure, vehicle, or enclosure in which it is contemplated that the violation will be committed;

    5. (e) possession of materials to be employed in the commission of the violation, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;

    6. (f) possession, collection, or fabrication of materials to be employed in the commission of the violation, at or near the place contemplated for its commission, where such possession, collection, or fabrication serves no lawful purpose under the circumstances; or

    7. (g) soliciting an innocent agent to engage in conduct constituting a violation.

  3. (3) Liability for Attempt in Absence of Causation. Where an actor would be liable for a violation of the Code of Conduct but does not cause or is not causally accountable for the prohibited result under Code of Adjudication Section 110 (Causation Defined), he or she is liable for an attempt in violation of Code of Conduct Section 49 (Attempting Commission of a Crime).

  4. (4) Complete and Voluntary Renunciation as a Defence to Attempt. An actor may not be held liable for attempting a crime, in violation of Code of Conduct Section 49 (Attempting Commission of a Crime), if the actor completely and voluntarily renounces the attempt before completion of the criminal conduct. An actor's renunciation is not ‘complete and voluntary’ if it is motivated in whole or in part by the actor's:

    1. (a) decision to postpone the conduct until a more advantageous time,

    2. (b) decision to transfer the criminal effort to another but similar objective or victim, or

    3. (c) perception of circumstances that increase the probability of detection or apprehension.

(p.224) Section 112. Requirements for Violation of Code of Conduct Section 50 (Acting with Another Toward Commission of a Crime (Complicity, Conspiracy, and Solicitation))

  1. (1) Unconvictable Perpetrator No Defence to Complicity. An actor may be held to have assisted in a violation, in violation of Code of Conduct Section 50 (Conspiracy), even if the person claimed to have committed the violation has not been prosecuted or convicted, has been convicted of a different violation or degree of violation, has an immunity to prosecution or conviction, or has been acquitted.

  2. (2) Termination as a Defence to Complicity. An actor does not violate the prohibition against assisting a violation, contained in Code of Conduct Section 50 (Conspiracy) if the actor terminates his or her complicity prior to the completion of the criminal conduct, and:

    1. (a) wholly deprives his or her complicity of its effectiveness in assisting the criminal conduct,

    2. (b) gives timely warning to law enforcement authorities, or

    3. (c) otherwise makes proper effort to prevent the commission of the violation.

  3. (3) Sufficiency of Unilateral Act for Conspiracy. An actor may be held to have agreed with another to commit a violation, in violation of Code of Conduct Section 50 (Conspiracy), even if the person with whom the actor agrees is not in reality agreeing to commission of the offence.

  4. (4) Overt Act Requirement for Conspiracy. An actor does not violate the prohibition against agreeing with another to commit a violation, contained in Code of Conduct Section 5 (Conspiracy), unless one of them performs an overt act in pursuance of the conspiracy. This requirement does not apply if the object of the conspiracy has a base grade in Section 304 (Base Grade) of a first or second degree felony.

  5. (5) Complete and Voluntary Renunciation as a Defence to Conspiracy and Solicitation. An actor may not be liable for agreeing with or soliciting another to commit a violation, in violation of Code of Conduct Section 50 (Conspiracy and Solicitation), if the actor prevents the crime under circumstances manifesting a complete and voluntary renunciation of his or her criminal purpose. A ‘complete and voluntary’ renunciation has the meaning given in Section 111(4) (Requirements for Violation of Code of Conduct Section 49 (Attempting Commission of a Crime)).

Section 113. Requirements for Violation of Code of Conduct Section 51 (Creating a Prohibited Risk)

An actor violates Code of Conduct Section 51 (Creating a Prohibited Risk) if, given the nature, degree, and circumstances of the risk, its creation is a gross deviation from the standard of conduct of a law-abiding person.

Section 114. Consent Defence

An actor does not violate the Code of Conduct if the victim consents and such consent:

  1. (1) negates an element of the violation, or

  2. (2) precludes occurrence of the harm sought to be prevented by the Code of Conduct provision defining the violation.

(p.225) Part II. Liability Assessment

Article 20. Minimum Requirements for Liability

Section 200. Minimum Culpability Required

  1. (1) An actor's violation of the Code of Conduct is not criminal unless the actor is at least reckless as to each element of the violation as described in the Code of Conduct, except that negligence is the minimum culpability required:

    1. (a) for a violation of the prohibition against causing the death of another person under Code of Conduct Section 3 (Injury to a Person); and

    2. (b) as to the age of the victim for a violation of Code of Conduct Section 14(b) or (c) (Criminal Sexual Contact).

  2. (2) In addition to the culpability requirements of subsection (1), to be liable for a violation of:

    1. (a) Code of Conduct Section 49 (Attempting Commission of a Crime), the actor must have the purpose to engage in the conduct that would constitute the violation; and

    2. (b) Code of Conduct Section 50 (Acting with Another Toward Commission of a Crime (Complicity, Conspiracy, and Solicitation)), the actor must have the purpose to facilitate the conduct constituting the violation.

  3. (3) Definitions. ‘Purposely’, ‘recklessly’, and ‘negligently’ are defined in Section 401 (Definitions).

Section 201. De Minimis Violation

An actor's violation of the Code of Conduct is not criminal if the actor's conduct is too trivial to warrant the condemnation of a criminal conviction.

Article 21. Doctrines of Imputation

Section 210. Divergence Between Result Intended or Risked and Actual Result

When causing a result is an element of an offence, and the actual result differs from the result intended or risked by the actor, the required culpability as to causing the result is established if the difference is only that:

  1. (1) a different person or property is injured, or

  2. (2) the injury intended or risked would have been more serious than the actual injury.

Section 211. Inculpatory Mistake

Where an actor's ignorance or mistake negates the minimum culpability required by Section 200 (Minimum Culpability Required), the actor nonetheless is liable for the offence if he or she would be liable for a different offence had the situation been as he or she supposed.

Section 212. Accountability for Conduct of Another

  1. (1) Legal Accountability. An actor is legally accountable for the conduct of another constituting an offence if, acting with the minimum culpability required for liability by Section 200 (Minimum Culpability Required):

    1. (p.226) (a) he or she causes an innocent or irresponsible person to engage in the conduct; or

    2. (b) with knowledge that the other person is engaging in, or will engage in, the conduct constituting the offence, he or she:

      1. (i) aids, advises, or encourages the person,

      2. (ii) solicits the other person to engage in the conduct, or

      3. (iii) has a legal duty to prevent the conduct and fails to make a reasonable effort to do so.

  2. (2) Exceptions to Accountability for Conduct of Another. An actor is not accountable for another's conduct under Subsection (1) if his or her conduct is inevitably incident to the commission of the violation, as a victim or otherwise, and is not prohibited by the Code of Conduct.

Section 213. Voluntary Intoxication

  1. (1) Where an actor does not have the minimum culpability required for liability by Section 200 (Minimum Culpability Required) because the actor was voluntarily intoxicated, such lack of culpability is immaterial if he or she is unaware of a risk of which he or she would have been aware if sober.

  2. (2) Definitions. For the purposes of this Section and Section 222 (Disability Excuse: Involuntary Intoxication):

    1. (a) ‘intoxication’ means a disturbance of mental or physical capacities resulting from the introduction of substances into the body;

    2. (b) ‘voluntarily intoxicated’ means the actor's intoxication was self-induced and not pathological;

    3. (c) ‘self-induced intoxication’ means intoxication caused by substances, the tendency of which to cause intoxication the actor knows or reasonably ought to know, that the actor knowingly introduces into his or her body, unless he or she introduces them pursuant to medical advice; and

    4. (d) ‘pathological intoxication’ means intoxication, grossly excessive in degree given the amount of the intoxicant, to which the actor does not know, and cannot reasonably be expected to know, he or she is susceptible.

Article 22. Excuses

Section 220. Disability Excuse: Involuntary Conduct

  1. (1) An actor's violation of the Code of Conduct is excused if the actor's conduct constituting the violation is involuntary.

  2. (2) ‘Involuntary Conduct’ Defined. For the purposes of this Section, conduct is ‘involuntary’ if it is:

    1. (a) not the product of the effort or determination of the actor, or

    2. (b) a reflex or convulsion.

  3. (3) Habitual Conduct Not Necessarily Involuntary. The fact that conduct is habitual does not in itself make the conduct involuntary.

Section 221. Disability Excuse: Insanity

  1. (1) An actor's violation of the Code of Conduct is excused if, at the time of the conduct constituting the violation, the actor:

    1. (p.227) (a) has a mental disease or defect, and

    2. (b) by reason of such mental disease or defect, lacks substantial capacity to:

      1. (i) appreciate the criminality or wrongfulness of his or her conduct, or

      2. (ii) conform his or her conduct to the requirements of law.

  2. (2) ‘Mental Disease or Defect’ Defined. For the purposes of this Section and Section 235 (Incompetency), ‘mental disease or defect’ is a physiologically confirmable abnormality of the mind, but does not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.

Section 222. Disability Excuse: Involuntary Intoxication

  1. (1) An actor's violation of the Code of Conduct is excused if, at the time of the conduct constituting the violation, the actor:

    1. (a) is involuntarily intoxicated, and

    2. (b) by reason of such involuntary intoxication, lacks substantial capacity to:

      1. (i) appreciate the criminality or wrongfulness of his or her conduct, or

      2. (ii) conform his or her conduct to the requirements of law.

  2. (2) ‘Involuntary Intoxication’ and ‘Self-Induced Intoxication’ Defined. ‘Involuntary intoxication’ means the actor's intoxication was not self-induced. ‘Self-induced intoxication’ is defined in Section 213(2)(c) (Voluntary Intoxication).

Section 223. Disability Excuse: Immaturity

  1. (1) An actor's violation of the Code of Conduct is excused if, at the time of the conduct constituting the violation, the actor:

    1. (a) is immature, and

    2. (b) by reason of such immaturity, lacks substantial capacity to appreciate the criminality or wrongfulness of his or her conduct.

  2. (2) ‘Immaturity’ Defined. For the purposes of this Section, ‘immaturity’ means a level of maturity typical of an individual less than sixteen years of age.

  3. (3) Presumed Excuse for Actors Under Eleven. An actor of eleven years of age or less at the time of the conduct constituting the violation is presumed to satisfy the requirements of Subsection (1).

  4. (4) Presumed Immaturity of Actors Under Sixteen. An actor more than eleven years of age but less than sixteen years of age at the time of the conduct constituting the violation is presumed to be immature as required by Subsection (1)(a).

Section 224. Disability Excuse: Duress

An actor's violation of the Code of Conduct is excused if, at the time of the conduct constituting the violation, the actor:

  1. (1) was coerced to engage in the conduct by the use or threatened use of unlawful force against his or her person or the person of another, and

  2. (2) a person of reasonable firmness in the actor's situation could not reasonably have been expected to have resisted such coercion.

(p.228) Section 225. Disability Excuse: Impaired Consciousness

  1. (1) An actor's violation of the Code of Conduct is excused if, at the time of the conduct constituting the violation, the actor:

    1. (a) is in a state of impaired consciousness, and

    2. (b) by reason of such impaired consciousness, lacks substantial capacity to:

      1. (i) appreciate the criminality or wrongfulness of his or her conduct, or

      2. (ii) conform his or her conduct to the requirements of law.

  2. (2) ‘State of Impaired Consciousness’ Defined. For the purposes of Subsection (1)(a), a ‘state of impaired consciousness’ means a disturbance of consciousness resulting from a physiologically confirmable state or condition not specifically recognised or rejected as a basis for exculpation under any other Section in this Article.

  3. (3) Presumed Impaired Consciousness. An actor who is unconscious, asleep, or under hypnosis is presumed to be in a state of impaired consciousness as required by Subsection (1)(a).

Section 226. Mistake Excuse: Mistake of Law

An actor's violation of the Code of Conduct is excused if, at the time of the conduct constituting the violation, the actor reasonably believes that the conduct does not constitute a violation because the actor:

  1. (1) reasonably relies upon an official statement of law contained in a statute, judgment, or an administrative order or grant of permission, subsequently determined to be invalid or erroneous, or

  2. (2) the actor diligently pursues all means available to ascertain the meaning and application of the Code of Conduct provision to his or her potential conduct and in good faith concludes that his or her conduct would not be a violation, in circumstances in which a reasonable person would also so conclude.

  3. (3) ‘Reasonable Belief Defined. For the purposes of this Section, a ‘reasonable belief is a non-negligent belief. ‘Negligently’ is defined in Section 401(4) (Definitions).

Section 227. Mistake Excuse: Mistake as to Justification

  1. (1) An actor's violation of the Code of Conduct is excused if, at the time of the conduct constituting the violation, the actor reasonably believes that the conduct constituting the violation is justified under Part IV of the Code of Conduct.

  2. (2) ‘Reasonable Belief’ Defined. ‘Reasonable belief’ is defined in Section 226(3) (Mistake Excuse: Mistake of Law).

Section 228. Rebuttable Presumptions

The presumptions afforded an actor in Section 223(3) and (4) (Disability Excuse: Immaturity) and Section 225(3) (Disability Excuse: Impaired Consciousness) may (p.229) be rebutted by the prosecution by proof by a preponderance of the evidence that the actor is mature or not in a state of impaired consciousness, respectively.

Article 23. Nonexculpatory Defences

Section 230. Timing of Assertion of Nonexculpatory Defence

Any defence contained in this Article must be raised by the defendant before trial. A failure to assert such a nonexculpatory defence before trial shall be deemed a waiver of that defence, but shall not preclude the defendant from raising any other appropriate defence.

Section 231. Waiver of Nonexculpatory Defence

Where an actor would otherwise satisfy the requirements of a nonexculpatory defence in this Article, the actor may elect to waive the nonexculpatory defence in order to allow the trier of fact to reach a verdict other than ‘Not Punishable’ as provided in Section 413 (Verdict Form: Not Punishable).

Section 232. Diplomatic Immunity

An actor may not be prosecuted for a violation of the Code of Conduct if he or she has been granted immunity from prosecution pursuant to the procedures of the Diplomatic Relations Act of 1978.

Section 233. Prosecution Barred by Former Prosecution

  1. (1) An actor may not be prosecuted for a violation of the Code of Conduct if:

    1. (a) he or she was previously prosecuted for a violation of the same provision of the Code of Conduct;

    2. (b) the present violation is based on the same facts; and

    3. (c) the previous prosecution:

      1. (i) resulted in a conviction,

      2. (ii) resulted in an acquittal,

      3. (iii) was terminated after jeopardy attached, or

      4. (iv) was terminated by a final order or judgment for the defendant, if the order or judgment necessarily required a determination inconsistent with a factual or legal proposition required for conviction of the violation.

  2. (2) Attachment of Jeopardy. The point in time at which ‘jeopardy attached’, as referred to in subsection (1)(c)(iii), is defined by the applicable Rules of Criminal Procedure.

Section 234. Governmental Immunity

An actor may not be tried for a violation of the Code of Conduct if he or she has judicial, legislative, or executive immunity from liability for such violation.

Section 235. Incompetency

  1. (1) An actor may not be tried for a violation of the Code of Conduct if, as a result of a mental disease or defect, the actor lacks the capacity necessary to:

    1. (p.230) (a) understand the nature of the proceedings against him or her, or

    2. (b) adequately assist counsel in the preparation of a defence.

  2. (2) ‘Mental Disease or Defect’ Defined. ‘Mental disease or defect’ is defined in Section 221(2) (Disability Excuse: Insanity).

Section 236. Period of Limitation for Commencement of Prosecution

  1. (1) An actor may not be tried for a violation of the Code of Conduct if:

    1. (a) the violation is a misdemeanor or a petty misdemeanor and the court determines that the conduct constituting the violation occurred more than three years prior to the date of commencement of the prosecution, or

    2. (b) the violation is a felony and the court determines that the conduct occurred more than seven years prior to the date of commencement of the prosecution, unless the conduct constitutes a violation of Code of Conduct Section 3 (Injury to a Person) that results in the death of another person.

  2. (2) Commencement of Prosecution. For the purposes of this Section, ‘commencement of the prosecution’ can be achieved by any of the following:

    1. (a) return of an indictment,

    2. (b) filing of an information, or

    3. (c) issuance of a warrant or other process, provided that such warrant or process is executed without unreasonable delay.

Section 237. Entrapment

An actor may not be punished for a violation of the Code of Conduct if:

  1. (1) the conduct constituting the violation is induced by a law enforcement officer,

  2. (2) the actor was not predisposed to commit the violation, and

  3. (3) the officer's conduct created a substantial risk that a reasonable person not predisposed to commit the violation would have been induced to do so.

Article 24. Causing the Conditions of One's Own Defence

Section 240. Causing the Conditions of One's Own Justification or Excuse Defence

  1. (1) When an actor causes the conditions that give rise to a justification under Part IV of the Code of Conduct or to an excuse under Article 22 of the Code of Adjudication, the actor gains the benefit of the defence despite his or her conduct in causing the defence conditions, but

  2. (2) the actor may be held liable for the violation of the Code of Conduct based upon his or her conduct in causing the defence conditions if, at the time of causing those conditions, the actor has the culpability as to bringing about the violation that is required by Section 200 (Minimum Culpability Required).

  3. (3) As provided by Section 310 (Adjustment for Greater Culpability), the grade of liability for causing the defence conditions under Subsection (2) increases if the actor was knowing or purposeful as to causing the violation.

  4. (4) Defence to Liability for Causing the Conditions of One's Own Defence. An actor may have a justification or excuse defence to liability under Subsection (2) for his or her conduct in causing the defence conditions.

(p.231) Section 241. Causing the Conditions of One's Own Nonexculpatory Defence

When an actor establishes a nonexculpatory defence under Article 23 and the actor caused the conditions of that defence, such defence is not available to the actor. This Section is not intended to supersede any international treaties.

Part III. Grading

Article 30. Base Grade of Offence

Section 300. Grade of Offence

The grade of an actor's offence shall be the base grade provided in Section 304 (Base Grade), as adjusted by the provisions of Article 31.

Section 301. Grade Levels

This Code recognises:

(1) Eight grades of felonies:

First degree felony

F1 (most serious offence)

Second degree felony

F2

Third degree felony

F3

Fourth degree felony

F4

Fifth degree felony

F5

Sixth degree felony

F6

Seventh degree felony

F7

Eighth degree felony

F8

(2) Five grades of misdemeanors:

First degree misdemeanor

M1

Second degree misdemeanor

M2

Third degree misdemeanor

M3

Fourth degree misdemeanor

M4

Fifth degree misdemeanor

M5

(3) One grade of petty misdemeanor:

Petty misdemeanor

PM (least serious offence)

Section 302. Grade of Offence When Divergence Between Result Intended or Risked and Actual Result

Where an actor satisfies the requirements of Section 210 (Divergence Between Result Intended or Risked and Actual Result) and the grade of the offence for the result intended or risked by the actor's conduct is lower than the grade of the offence actually committed, the grade of the actor's offence is the grade of the offence for the result intended or risked.

Section 303. Grade of Offence If Inculpatory Mistake

Where an actor satisfies the requirements of Section 211 (Inculpatory Mistake) and the grade of the offence under his or her mistaken belief is lower than the grade of the offence actually committed, the grade of the actor's offence is the grade of the offence under his or her mistaken belief.

Section 304. Base Grade

An offence has the base grade indicated below. Unless otherwise provided, the grade given assumes a reckless violation. (p.232) (p.233) (p.234)

Code of Conduct section violated:

Additional grading categories:

Base grade

3. Injury to a Person

(a) Death

F3

(b) Death (negligently)

F4

(c) Serious or permanent bodily injury

F5

(d) Bodily injury

M1

6. Assisting Another's Suicide

Neither (a) nor (b)

F3

(a) Terminal illness (but assistance not voluntarily requested)

F5

(b) Assistance voluntarily requested (but no terminal illness)

F5

7. Criminal Harassment

M3

8. Violation of Privacy

M4

9. Criminal Threat of Committing a Crime

(a) Threatens a felony

F6

(b) Threatens a misdemeanor

M2

10. Criminal Threat of Exposure

M2

11. Criminal Threat of Official Action

M2

12. Criminal Restraint

F5

13. Welfare of Child

M1

14. Criminal Sexual Contact

(a) Sexual intercourse with a person under eleven years of age

F3

(b) Sexual contact with a person under eleven years of age

F5

(c) Sexual intercourse without consent

F4

(d) Sexual contact without consent

M1

(e) Sexual intercourse with a person under sixteen years of age if the actor is four or more years older than the victim

F7

(f) Sexual contact with a person under sixteen years of age if the actor is four or more years older than the victim

M2

(g) Sexual intercourse with a person in the actor's custodial or mental health care

F7

(h) Sexual contact with a person in the actor's custodial or mental health care

M2

17. Indecent Exposure

M4

19. Abortion

F6

20. Bigamy

M5

21. Interference with Custody

M2

22. Duty to Provide Support

M4

23. Incest

F7

24. Damage to or Theft of Property

(a) Value of property damaged or stolen exceeds $100,000

F3

(b) Value of property greater than $10,000 and less than or equal to $100,000

F6

(c) Value of property greater than $1,000 and less than or equal to $10,000

F8

(d) Value of property greater than $500 and less than or equal to $1,000

M3

(e) Value of property greater than $100 and less than or equal to $500

M5

(f) Value of property less than or equal to $100

PM

25. Criminal Trespass

(a) Dwelling or occupied structure

M1

(b) Land

PM

26. Duty to Prevent Catastrophe

M3

27. Failure to Return Lost or Mistakenly Delivered Property

M5

28. Forgery, Bad Checks, and Fraudulent Practices

M2

29. Destruction or Damage of Certain Objects

(a) Irreparable damage, destruction, or defacement

M4

(b) Other

M5

30. Disorderly Conduct

PM

31. Indecent Behavior

PM

32. Creating a Public Alarm or Panic

M3

33. Obstructing a Public Passage

PM

34. Prostitution

M4

36. Obscenity

(a) Weapon

M4

37. Criminal Possession

(b) Controlled substance

M2

(c) Drug paraphernalia

*

(d) Stolen property

Base grade of offence according to scale used in Section 24 (Damage to or Theft of Property)

M5

38. Cruelty to Animals

M4

39. Abuse of Corpse

M4

40. Obstruction of Law

M3

41. Avoiding Lawful Detention

M3

42. Failure to Appear

M5

43. Abuse of Non-Public Information by Public Official

M2

44. Providing False Information

(a) If under oath

F8

(b) If not under oath

M1

45. Bribery and Criminal Compensation

F6

46. Governmental Oppression

F8

47. Tampering with Records

M3

48. Impersonating a Public Official

M4

49. Attempting Commission of a Crime

Two grades less than the grade for the completed offence

50. Acting with Another Toward Commission of a Crime (Complicity, Conspiracy, and Solicitation)

Grade adjusted as provided in Section 311 (Extent of Participation in Assisting an Offence by Another)

51. Creating a Prohibited Risk

One grade less than the grade for the offence if the harm risked had resulted

(*) The Table follows the Model Penal Code's lead in not taking a position on the precise substances that are to be controlled or on the appropriate grading for various drug-related crimes.

(p.235) Article 31. Adjustments to Base grade

Section 310. Adjustment for Greater Culpability

  1. (1) The grade of an offence increases:

    1. (a) two grades if the actor is purposeful as to the core elements, or

    2. (b) one grade if the actor is knowing as to the core elements.

  2. (2) Definitions. For the purposes of this Section:

    1. (a) The ‘core elements’ are those facts that establish the violation in the Code of Conduct and its grade in Section 304 (Base Grade).

    2. (b) Purposely’, ‘knowingly’, ‘recklessly’, and ‘negligently’ are defined in Section 401 (Definitions).

Section 311. Adjustment According to Extent of Participation in Assisting an Offence by Another

Where the actor assists another to commit an offence, in violation of Code of Conduct Section 50 (Acting with Another Toward Commission of a Crime (Complicity)), the grade of the actor's offence:

  1. (1) increases two grades if the actor is an organizer,

  2. (2) increases one grade if the actor is a manager,

  3. (3) is unaffected if the actor is a participant,

  4. (4) decreases one grade if the actor is a supporter.

  5. (5) Definitions. For the purposes of this Section:

    1. (a) The actor is an ‘organizer’ if he or she directed, supervised, or managed one or more persons who satisfy manager criteria;

    2. (b) The actor is a ‘manager’ if he or she shared management responsibilities on an equal basis with one or more actors in any one of the following:

      1. (p.236) (i) the selection of the criminal objective,

      2. (ii) the identification of resources necessary to achieve the criminal objective, or

      3. (iii) the planning, financing, or scheduling of the activities necessary to achieve the criminal objective;

    3. (c) The actor is a ‘participant’ if he or she was involved in any way in the design or implementation of the conduct constituting the offence; and

    4. (d) The actor is a ‘supporter’ if he or she was a minor participant in a criminal scheme and was to be compensated by a fixed amount rather than a percentage of the profits of the criminal objective.

Section 312. Adjustment for Ineffective Renunciation of Attempt, Conspiracy, or Solicitation

  1. (1) The grade of the actor's offence decreases one grade if the actor completely and voluntarily renounces his or her attempt, conspiracy, or solicitation but is unable to prevent commission of the offence.

  2. (2) ‘Complete and Voluntary’ Defined. A ‘complete and voluntary’ renunciation has the meaning given in Section 111(4) (Requirements for Violation of Code of Conduct Section 49).

Section 313. Adjustment for Partial Disability

The grade of the actor's offence decreases one grade if, at the time of the conduct constituting the offence, the actor suffers a substantial impairment of cognitive or control dysfunction, as defined in a provision in Article 22, but to a degree insufficient to merit a complete excuse.

Section 314. Adjustment for Selection of Victim

  1. (1) The grade of the actor's offence increases one grade if the actor selects the victim of the offence because the victim is:

    1. (a) younger than sixteen years of age;

    2. (b) older than sixty-five years of age;

    3. (c) suffering from a physical or mental disability; or

    4. (d) of a particular race, religion, ancestry, gender, sexual orientation, or national origin, and by choosing the victim the actor hopes to intimidate or humiliate the other members of the group of which the victim is a member.

  2. (2) The grade increase provided by this Section does not apply if the charac teristic defined in Subsection (1) is an element of the violation.

Part IV. General Provisions

Article 40. Miscellaneous

Section 400. Principles of Construction

  1. (1) Each term in the Code of Conduct and the Code of Adjudication shall be interpreted according to a definition provided for the term or, if none is provided, shall be given its common and plain meaning.

  2. (p.237) (2) Any remaining ambiguities shall be resolved to best further the Code's goal of imposing liability according to the degree of an actor's blameworthiness, including the degree of the actor's culpability and the extent of any harm that results from the actor's conduct.

Section 401. Definitions

For the purposes of this Code of Adjudication:

  1. (1) A person acts ‘purposely’ with respect to an element of a violation when:

    1. (a) if the element involves the nature of his or her conduct or a result thereof, it is his or her conscious object to engage in conduct of that nature or to cause such a result, and

    2. (b) if the element involves the attendant circumstances of the conduct, he or she is aware of the existence of such circumstances or he or she believes or hopes that they exist.

  2. (2) A person acts ‘knowingly’ with respect to an element of a violation when:

    1. (a) if the element involves the nature of his or her conduct or the attendant circumstances, he or she is aware that his or her conduct is of that nature or that such circumstances exist, and

    2. (b) if the element involves a result of his or her conduct, he or she is aware that it is practically certain that his or her conduct will cause such a result.

  3. (3) A person acts ‘recklessly’ with respect to an element of a violation when he or she consciously disregards a risk that the element exists or will result from his or her conduct. The risk must be of such a nature and degree that, considering the purpose of the actor's conduct and the circumstances known to him or her, the actor's failure to perceive it involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

  4. (4) A person acts ‘negligently’ with respect to an element of a violation when he or she should be aware of a risk that the element exists or will result from his or her conduct. The risk must be of such a nature and degree that, considering the purpose of the actor's conduct and the circumstances known to him or her, the actor's failure to perceive it involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

  5. (5) ‘Element of an Offence’ Defined. An ‘element of an offence’ means such:

    1. (a) conduct,

    2. (b) attendant circumstances, or

    3. (c) a result of conduct,

    as is contained in the definition of a violation.

  6. (6) ‘Conduct’ Defined. ‘Conduct’ means a physical act or omission.

  7. (7) ‘Circumstance’ Defined. ‘Circumstance’ means a characteristic of the conduct or a condition or environment under which the conduct occurs.

  8. (8) ‘Result’ Defined. ‘Result’ means a circumstance changed by the conduct of the actor.

  9. (9) Other Definitions. The following terms are defined in the following sections:

    1. (a) In the Code of Conduct:

      ‘Consent’ in Section 5,

      ‘Deadly force’ in Section 53,

      (p.238) ‘Family member’ in Section 23,

      ‘Intimate parts’ in Section 16,

      ‘Property’ in Section 24,

      ‘Public place’ in Section 18,

      ‘Sexual act’ in Section 35,

      ‘Sexual contact’ in Section 15, and

      ‘Unlawful force’ in Section 54.

    2. (b) In this Code of Adjudication:

      ‘Causation’ in Section 110,

      ‘Complete and voluntary’ renunciation in Section 111(4),

      ‘Immaturity’ in Section 223(2),

      ‘Included offence’ in Section 402(2),

      ‘Intoxication’ in Section 213(2)(a),

      ‘Involuntary conduct’ in Section 220(2),

      ‘Involuntary intoxication’ in Section 222(2),

      ‘Manager’ in Section 311(5)(b),

      ‘Mental disease or defect’ in Section 221(2),

      ‘Organizer’ in Section 311(5)(a),

      ‘Participant’ in Section 311(5)(c),

      ‘Pathological intoxication’ in Section 213(2)(d),

      ‘Reasonable belief’ in Section226(3),

      ‘Self-induced intoxication’ in Section 213(2)(c),

      ‘State of impaired consciousness’ in Section 225(2),

      ‘Substantial step’ in Section 111(2),

      ‘Supporter’ in Section 311(5)(d), and

      ‘Voluntarily intoxicated’ in Section 213(2)(b).

Section 402. Limitations on Convictions for Multiple Offences

  1. (1) When the same conduct of an actor satisfies the elements of more than one offence, the actor may be held liable for each offence, unless:

    1. (a) one offence is included in another as defined in Subsection (2) of this Section, or

    2. (b) inconsistent findings of fact are required to satisfy the elements of the offences.

  2. (2) ‘Included Offence’ Defined. For the purposes of this Section, an offence is ‘included’ in another if it consists of attempting, conspiring, or soliciting the other.

Article 41. Verdict Forms

Section 410. Verdict Form: No Violation of Prohibitions or Duties

If the trier of fact finds no violation of the prohibitions or duties described in Parts II and III of the Code of Conduct, then the verdict shall be ‘No Violation’.

Section 411. Verdict Form: Justified Violation of Prohibition or Duty

If the trier of fact finds that the actor's conduct constitutes a violation of a prohibition or duty under Parts II or III of the Code of Conduct, but finds that the violation is justified under Part IV of the Code of Conduct, then the verdict shall be ‘Justified Violation’.

(p.239) Section 412. Verdict Form: Blameless Violation

If the trier of fact finds that the actor's conduct constitutes an unjustified violation of the Code of Conduct, but:

  1. (1) the minimum requirements for liability contained in Code of Adjudication Article 20 have not been satisfied, or

  2. (2) the actor's conduct is excused under Code of Adjudication Article 22, then the verdict shall be ‘Not Guilty by Reason of Blameless Violation’.

Section 413. Verdict Form: Not Punishable

If the trier of fact finds that the actor is not subject to prosecution, triable, or punishable because of a provision in Code of Adjudication Article 23, then the verdict shall be ‘Not Punishable’.

Section 414. Verdict Form: Guilty

If the trier of fact finds that the actor violated the Code of Conduct without justification, satisfies the minimum requirements of liability under Code of Adjudication Article 20, and has no defence under Code of Adjudication Articles 22 or 23, then the verdict shall be ‘Guilty’. The verdict shall indicate the grade of the offence as provided by Part III of the Code of Adjudication.