COMMON LAW

  1. Discuss the theory behind why, under common law, a man could not be charged with raping his wife, and the rationale behind most modern statutes that now permit such a charge if supported by evidence?
    2. Bill and George have a traffic altercation. At the next light, Bill looks over to George and says, "If you ever do that again, I'll blow your head off." Has a crime been committed? If so, what offense? Does your answer change depending upon whether or not a gun is found in Bill's car? What if Bill merely said, "If you ever do that again, I'll punch your lights out!"
    3. Bob buys a house that turns out to be a financial drain. If he decides to burn it down one day, and has no intention of filing an insurance claim and no one was hurt, is he guilty of a crime? Why or why not?
    4. In your state, what is the blood alcohol level upon which a presumption arises that a person is under the influence of alcohol? What does that presumption mean and how can it be overcome? What other types of impairment are included that result in a violation of the statute? What are the degrees of these offenses; how and why do they increase the penalty?
  1. Under the common law, a man’s wife, in historic times, was his property or his “chattel”. That is where the term “bride price” came from. Women were the property and were legally “nothing” without a man such as a father or husband. Damages could even be awarded to a husband if he lost his wife due to someone’s actions because he would have lost some “property.” As property, a man could not rape his wife because he “owned” her and she would have no right to refuse sex. Modern law has done away with the “property” aspect of marriage and have recognized that women are individuals and not someone’s property. Women now have the rights to their own bodies, including sexual and reproductive rights and are not owned by a husband noranyone else.
  2. Bill may have committed an assault because assault means a threat of harm with the ability to carry it out. If he threatened to “blow” George’s head off and had no gun, it would not be an assault because he had no ability to carry it out. However, the threat to punch him could have been an assault because he would have definitely had the ability to carry out that type of threat by merely punching him.
  3. Burning the house down is still a crime. Arson is a crime for several reasons. Someone could accidentally be inside. Fire fighters might use resources to keep the fire in check or try to put it out. Other homes or property could be at risk.
  4. In my state, the blood alcohol level at which a driver is assumed to be impaired is .08. That presumption can be overcome if it is proven that either the test is wrong or that the driving was not impaired by doing the field sobriety tests and passing them. It is also a crime to drive impaired by drugs, legal or illegally obtained. That is more difficult to prove, but usually through the way the car or vehicle is being driven and noticed by the law enforcement and subsequent tests. In my state, the judgment for DUI can be deferred for a year if the BAC is under .149. The first and second convictions are misdemeanors but the third conviction for DUI is a felony punishable by up to 5 years in prison. The penalties are increased due to repeated offenders who continuously drink or take drugs and drive.