Generally, "a crime consists in the concurrence of prohibited conduct and a culpable mental state." (quoting 1 WHARTON'S CRIMINAL LAW § 27, at 135 (C. Torcia 14th ed. 1978) )
How later courts described this case
- Generally, "a crime consists in the concurrence of prohibited conduct and a culpable mental state." (quoting 1 WHARTON'S CRIMINAL LAW § 27, at 135 (C. Torcia 14th ed. 1978) )
- "It is a fundamental principle of our system of criminal justice that an individual will be punished only for bad conduct, not bad intentions.”
- “If either the actus reus—the unlawful conduct—or the mens rea—the criminal intent— is missing at the time of the alleged offense, there can be no conviction.”
Written by the judges who cited it.
The opinion
NEBEKER, Associate Judge,
Retired, dissenting:
In Ford v. United States, 533 A.2d 617 (D.C.1987) (en banc) (Ford II), a five member majority held that “[bjecause there was no evidence in any of the cases ‘that a commercial venture was contemplated when the sexual availability was made apparent,’ all five convictions must be reversed.” Id. at 625 (citation omitted). In short, we held the evidence insufficient as to the fee element of soliciting for the purpose of prostitution, i.e., sex for pay. The majority in this case subscribed to the opinion and holding in Ford, supra, including the acknowledgment that those women “looked and ... acted like prostitutes” and that their “sexual availability was made apparent.” Id. Now, after we have deferred decision in this case to await the Ford II decision, the majority here amazingly ignores what they, as members of the en banc court, readily conceded — that the conduct common to all these cases permits an inference that “sexual availability was made apparent.”
The majority here is quite inconsistent— impermissibly so I suggest — with the Ford II holding when it concludes “[e]ven if the trier-of-fact could reasonably infer ... that some sort of sexual activity had occurred [the same concession made in Ford III, it by no means follows that the activity included sodomy_” Ante at 623 (emphasis in original) (footnote omitted). I ask: What else could a female impersonator have contemplated when he solicits another male for what is conceded to be “some sort of sexual activity”?
Nor do I understand other aspects of the majority opinion. It counsels “a conviction must rest on the accused’s unambiguous manifestation of intent to engage in an immoral or lewd activity.” Ante at 622. Circumstantial evidence need not be “unambiguous” in the sense that it excludes all reasonable hypotheses of innocence. Holland v. United States, 348 U.S. 121, 139-40 , 75 S.Ct. 127, 137 , 99 L.Ed. 150 (1954); Chaconas v. United States, 326 A.2d 792, 798 (D.C.1974). Thus, the majority is wrong in exacting (without citation of authority) such a high standard of proof. The statute prohibits addressing etc. for the purpose of inviting etc. for any immoral or lewd purpose. Awkward as it is, the statute prohibits actions for certain purposes, or as the majority says, “bad intentions.” Ante at 621. We do punish for bad intentions when coupled with “bad conduct.” Id. To view the conduct in this case as innocent, as do my two colleagues, hardly befits a court charged with knowledge of all aspects of human behavior.
In my view, we are required to follow the en banc pronouncement in Ford II that sexual availability may be inferred from the conduct of record. The nature of the sexual conduct is too obvious to debate when it turns out to be one man addressing another under these circumstances. Since evidence of a fee is not required in this case, Ford II says the conviction here should be affirmed.
Accordingly, I dissent.