本週內容，是小弟冒著被當的危險，連夜趕出來的血汗作品，弟兄可要認真看啊... :)
282. assault = 暴力襲擊
In law, assault is a crime that involves causing a victim to apprehend violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more limited sense of a threat of violence caused by an immediate show of force. Assault in some US jurisdictions is defined more broadly still as any intentional physical contact with another person without their consent; but in the majority of the United States, and in England and Wales and all other common law jurisdictions in the world, this is defined instead as battery. Some jurisdictions have incorporated the definition of civil assault into the definition of the crime making it a criminal assault to intentionally cause another person to apprehend a harmful or offensive contact.
Definition
Battery [補充] the difference between assault and battery
In common law, criminal assault often accompanied battery. See common assault. The elements of battery are (1) a volitional act (2) done for the purpose of causing a harmful or offensive contact with another person or under circumstances that make such contact substantially certain to occur and (3) which causes such contact. Thus throwing a rock at someone for the purpose of hitting him is a battery if the rock in fact strikes the person and is an assault if the rock misses.
Aggravated assault
Aggravated assault is, in some jurisdictions, a stronger form of assault, usually using a deadly weapon. A person has committed an aggravated assault when that person attempts to:
cause serious bodily injury to another person with a deadly weapon
cause grievous bodily harm to another person, such as rape or kidnapping
have sex relations with a person who is under the age of consent
Aggravated assault can also be charged in cases of attempted harm against police officers or other public servants, or for bodily harm stemming from the reckless operation of a motor vehicle. The latter is often referred to as either vehicular assault or aggravated assault with a motor vehicle.
Defenses
Although the range and precise application of defenses varies between jurisdictions, the following represents a list of the defenses that may apply to all levels of assault:
Consent
Exceptions exist to cover unsolicited physical contact which amount to normal social behavior known as de minimis harm. Assault can also be considered in cases involving the spitting on, or unwanted exposure of bodily fluids to others.
Consent may be a complete or partial defense to assault. In some jurisdictions, most notably England, it is not a defense where the degree of injury is severe, as long as there is no legally recognized good reason for the assault. This can have important consequences when dealing with issues such as consensual sadomasochistic sexual activity, the most notable case being the Operation Spanner case. Legally recognized good reasons for consent include; surgery, activities within the rules of a game (Mixed martial arts, wrestling, boxing, or contact sports), bodily adornment (R v Wilson), or horseplay (Jones and others). However, any activity outside the rules of the game is not legally recognized as a defense of consent. In Scottish Law, consent is not a defense for assault.
Arrest and other official acts
Police officers and court officials have a general power to use force for the purpose of performing an arrest or generally carrying out their official duties. Thus, a court officer taking possession of goods under a court order may use force if reasonably necessary.
Punishment
In some jurisdictions such as Singapore, judicial corporal punishment is part of the legal system. The officers who administer the punishment have immunity from prosecution for assault.
In the United States, the United Kingdom, Australia and Canada, corporal punishment administered to children by their parent or legal guardian is not legally considered to be assault unless it is deemed to be excessive or unreasonable. What constitutes "reasonable" varies in both statutory law and case law. Unreasonable physical punishment may be charged as assault or under a separate statute for child abuse.
Many countries, including some US states, also permit the use of less severe corporal punishment for children in school. In English law, s58 Children Act 2004, limits the availability of the lawful correction defense to common assault under s39 Criminal Justice Act 1988.
Prevention of crime
This may or may not involve self-defense in that, using a reasonable degree of force to prevent another from committing a crime could involve preventing an assault, but it could be preventing a crime not involving the use of personal violence.
Defense of property
Some jurisdictions allow force to be used in defense of property, to prevent damage either in its own right, or under one or both of the preceding classes of defense in that a threat or attempt to damage property might be considered a crime (in English law, under s5 Criminal Damage Act 1971 it may be argued that the defendant has a lawful excuse to damaging property during the defense and a defense under s3 Criminal Law Act 1967) subject to the need to deter vigilantes and excessive self-help. Furthermore, some jurisdictions, such as Ohio, allow residents in their homes to use force when ejecting an intruder. The resident merely needs to assert to the court that he felt threatened by the intruder's presence.
This defense is not universal: in New Zealand, for example, homeowners have been convicted of assault for attacking burglars.
United States
American common law has defined assault as an attempt to commit a battery.
Assault is typically treated as a misdemeanor and not as a felony (unless it involves a law enforcement officer). The more serious crime of aggravated assault is treated as a felony.
Four elements were required at common law:
The apparent, present ability to carry out;
An unlawful attempt;
To commit a violent injury;
Upon another.
Simple assault can be distinguished without the intent of injury upon another person. The violation of one's personal space or touching in a way the victim deemed inappropriate can be simple assault. In common law states an assault is not committed by merely, for example, swearing at another; without threat of battery, there can be no assault.
As the criminal law evolved, element one was weakened in most jurisdictions so that a reasonable fear of bodily injury would suffice. These four elements were eventually codified in most states.
Modern American statutes define assault as:
an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another; or,
negligently causing bodily injury to another with a deadly weapon.
Some states also define assault as an attempt to menace (or actual menacing) by placing another person in fear of imminent serious bodily injury.
States vary on whether it is possible to commit an "attempted assault" since it can be considered a double inchoate offense.
In some states, consent is a complete defense to assault. In other jurisdictions, mutual consent is an incomplete defense, with the result that the misdemeanor is treated as a petty misdemeanor.
In New York State assault as defined in the New York State Penal Code Article 120, requires an actual injury. Other states define this as battery. There is no crime of battery in New York. The threat of imminent injury without physical contact in New York is called Menacing. New York also has specific laws against Hazing when such threats are made as requirement to join an organization.
Furthermore, the crime of assault generally requires that both the perpetrator and the victim of an assault are human. Thus, there is no assault if an ox gores a man. However, the Unborn Victims of Violence Act of 2004 treats the fetus as a separate person for the purposes of assault and other violent crimes, under certain limited circumstances. See H.R. 1997 / P.L. 108-212
Some possible examples of defenses, mitigating circumstances, or failures of proof are:
A defendant could argue that since he was drunk, he could not form the specific intent to commit assault. This defense would most likely fail since only involuntary intoxication is accepted as a defense in most American jurisdictions.
A defendant could also argue that he was engaged in mutually consensual behavior.
283. stop and frisk = 攔停盤查嫌疑人
暫以紐約市處理情形為例：
The stop-and-frisk program of New York City is a practice of the New York City Police Department by which a police officer who reasonably suspects a person has committed, is committing, or is about to commit a felony or a Penal Law misdemeanor, stops and questions that person, and, if the officer reasonably suspects he or she is in danger of physical injury, frisks the person stopped for weapons. The rules for stop and frisk are found in New York State Criminal Procedure Law section 140.50, and are based on the decision of the United States Supreme Court in the case of Terry v. Ohio About 684,000 people were stopped in 2011. New York residents have questioned whether these stops are based on reasonable suspicion of criminal activity. According to NYPD statistics, almost one in five stopped were guilty of a crime. The vast majority of these people were African-American or Latino.
Part of the stop-and-frisk program is executed under Operation Clean Halls, a program wherein private property owners grant officers prior permission to enter a property for enforcement against criminal activity.
Some NYPD officers have objected publicly to the department's use of stop-and-frisk paperwork as a performance metric, which they claim encourages officers to overuse the practice and creates public hostility. Activists have described this as a form of quota, a characterization that department representatives have denied.
待續
282. assault = 暴力襲擊
In law, assault is a crime that involves causing a victim to apprehend violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more limited sense of a threat of violence caused by an immediate show of force. Assault in some US jurisdictions is defined more broadly still as any intentional physical contact with another person without their consent; but in the majority of the United States, and in England and Wales and all other common law jurisdictions in the world, this is defined instead as battery. Some jurisdictions have incorporated the definition of civil assault into the definition of the crime making it a criminal assault to intentionally cause another person to apprehend a harmful or offensive contact.
Definition
Battery [補充] the difference between assault and battery
In common law, criminal assault often accompanied battery. See common assault. The elements of battery are (1) a volitional act (2) done for the purpose of causing a harmful or offensive contact with another person or under circumstances that make such contact substantially certain to occur and (3) which causes such contact. Thus throwing a rock at someone for the purpose of hitting him is a battery if the rock in fact strikes the person and is an assault if the rock misses.
Aggravated assault
Aggravated assault is, in some jurisdictions, a stronger form of assault, usually using a deadly weapon. A person has committed an aggravated assault when that person attempts to:
cause serious bodily injury to another person with a deadly weapon
cause grievous bodily harm to another person, such as rape or kidnapping
have sex relations with a person who is under the age of consent
Aggravated assault can also be charged in cases of attempted harm against police officers or other public servants, or for bodily harm stemming from the reckless operation of a motor vehicle. The latter is often referred to as either vehicular assault or aggravated assault with a motor vehicle.
Defenses
Although the range and precise application of defenses varies between jurisdictions, the following represents a list of the defenses that may apply to all levels of assault:
Consent
Exceptions exist to cover unsolicited physical contact which amount to normal social behavior known as de minimis harm. Assault can also be considered in cases involving the spitting on, or unwanted exposure of bodily fluids to others.
Consent may be a complete or partial defense to assault. In some jurisdictions, most notably England, it is not a defense where the degree of injury is severe, as long as there is no legally recognized good reason for the assault. This can have important consequences when dealing with issues such as consensual sadomasochistic sexual activity, the most notable case being the Operation Spanner case. Legally recognized good reasons for consent include; surgery, activities within the rules of a game (Mixed martial arts, wrestling, boxing, or contact sports), bodily adornment (R v Wilson), or horseplay (Jones and others). However, any activity outside the rules of the game is not legally recognized as a defense of consent. In Scottish Law, consent is not a defense for assault.
Arrest and other official acts
Police officers and court officials have a general power to use force for the purpose of performing an arrest or generally carrying out their official duties. Thus, a court officer taking possession of goods under a court order may use force if reasonably necessary.
Punishment
In some jurisdictions such as Singapore, judicial corporal punishment is part of the legal system. The officers who administer the punishment have immunity from prosecution for assault.
In the United States, the United Kingdom, Australia and Canada, corporal punishment administered to children by their parent or legal guardian is not legally considered to be assault unless it is deemed to be excessive or unreasonable. What constitutes "reasonable" varies in both statutory law and case law. Unreasonable physical punishment may be charged as assault or under a separate statute for child abuse.
Many countries, including some US states, also permit the use of less severe corporal punishment for children in school. In English law, s58 Children Act 2004, limits the availability of the lawful correction defense to common assault under s39 Criminal Justice Act 1988.
Prevention of crime
This may or may not involve self-defense in that, using a reasonable degree of force to prevent another from committing a crime could involve preventing an assault, but it could be preventing a crime not involving the use of personal violence.
Defense of property
Some jurisdictions allow force to be used in defense of property, to prevent damage either in its own right, or under one or both of the preceding classes of defense in that a threat or attempt to damage property might be considered a crime (in English law, under s5 Criminal Damage Act 1971 it may be argued that the defendant has a lawful excuse to damaging property during the defense and a defense under s3 Criminal Law Act 1967) subject to the need to deter vigilantes and excessive self-help. Furthermore, some jurisdictions, such as Ohio, allow residents in their homes to use force when ejecting an intruder. The resident merely needs to assert to the court that he felt threatened by the intruder's presence.
This defense is not universal: in New Zealand, for example, homeowners have been convicted of assault for attacking burglars.
United States
American common law has defined assault as an attempt to commit a battery.
Assault is typically treated as a misdemeanor and not as a felony (unless it involves a law enforcement officer). The more serious crime of aggravated assault is treated as a felony.
Four elements were required at common law:
The apparent, present ability to carry out;
An unlawful attempt;
To commit a violent injury;
Upon another.
Simple assault can be distinguished without the intent of injury upon another person. The violation of one's personal space or touching in a way the victim deemed inappropriate can be simple assault. In common law states an assault is not committed by merely, for example, swearing at another; without threat of battery, there can be no assault.
As the criminal law evolved, element one was weakened in most jurisdictions so that a reasonable fear of bodily injury would suffice. These four elements were eventually codified in most states.
Modern American statutes define assault as:
an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another; or,
negligently causing bodily injury to another with a deadly weapon.
Some states also define assault as an attempt to menace (or actual menacing) by placing another person in fear of imminent serious bodily injury.
States vary on whether it is possible to commit an "attempted assault" since it can be considered a double inchoate offense.
In some states, consent is a complete defense to assault. In other jurisdictions, mutual consent is an incomplete defense, with the result that the misdemeanor is treated as a petty misdemeanor.
In New York State assault as defined in the New York State Penal Code Article 120, requires an actual injury. Other states define this as battery. There is no crime of battery in New York. The threat of imminent injury without physical contact in New York is called Menacing. New York also has specific laws against Hazing when such threats are made as requirement to join an organization.
Furthermore, the crime of assault generally requires that both the perpetrator and the victim of an assault are human. Thus, there is no assault if an ox gores a man. However, the Unborn Victims of Violence Act of 2004 treats the fetus as a separate person for the purposes of assault and other violent crimes, under certain limited circumstances. See H.R. 1997 / P.L. 108-212
Some possible examples of defenses, mitigating circumstances, or failures of proof are:
A defendant could argue that since he was drunk, he could not form the specific intent to commit assault. This defense would most likely fail since only involuntary intoxication is accepted as a defense in most American jurisdictions.
A defendant could also argue that he was engaged in mutually consensual behavior.
283. stop and frisk = 攔停盤查嫌疑人
暫以紐約市處理情形為例：
The stop-and-frisk program of New York City is a practice of the New York City Police Department by which a police officer who reasonably suspects a person has committed, is committing, or is about to commit a felony or a Penal Law misdemeanor, stops and questions that person, and, if the officer reasonably suspects he or she is in danger of physical injury, frisks the person stopped for weapons. The rules for stop and frisk are found in New York State Criminal Procedure Law section 140.50, and are based on the decision of the United States Supreme Court in the case of Terry v. Ohio About 684,000 people were stopped in 2011. New York residents have questioned whether these stops are based on reasonable suspicion of criminal activity. According to NYPD statistics, almost one in five stopped were guilty of a crime. The vast majority of these people were African-American or Latino.
Part of the stop-and-frisk program is executed under Operation Clean Halls, a program wherein private property owners grant officers prior permission to enter a property for enforcement against criminal activity.
Some NYPD officers have objected publicly to the department's use of stop-and-frisk paperwork as a performance metric, which they claim encourages officers to overuse the practice and creates public hostility. Activists have described this as a form of quota, a characterization that department representatives have denied.
待續
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