Knowingly exposing another to HIV.
Conduct having the potential to transmit the Human Immunodeficiency Virus human immunodeficiency virus
Human immunodeficiency virus (HIV)
A transmissible retrovirus that causes AIDS in humans. (HIV HIV (Human Immunodeficiency Virus), either of two closely related retroviruses that invade T-helper lymphocytes and are responsible for AIDS. There are two types of HIV: HIV-1 and HIV-2. HIV-1 is responsible for the vast majority of AIDS in the United States. ) has recently been subject to increased criminal penalties. In many instances, HIV-positive persons alleged to have knowingly exposed others to the risk of contracting the virus have been charged with and convicted of attempted murder In the criminal law, attempted murder is committed when the defendant does an act that is more than merely preparatory to the commission of the crime of murder and, at the time of these acts, the person has a specific intention to kill. , an offense that requires proof of the defendant's specific intent to kill. In these cases, prosecutors usually point to "extrinsic evidence Facts or information not embodied in a written agreement such as a will, trust, or contract.
Extrinsic evidence is similar to extraneous evidence, which is not furnished by the document in and of itself but is derived from external sources. " of the defendant's intent to kill - that is, evidence beyond the defendant's mere awareness of his HIV-positive status and the means of transmission. Sometimes, however, the only evidence of intent is the defendant's own knowledge. In Smallwood v. State, the Maryland Court of Appeals The Maryland Court of Appeals is the supreme court of the U.S. state of Maryland. The court, which is composed of one chief judge and six associate judges, meets in the Robert C. Murphy Courts of Appeal Building in the state capital, Annapolis. became the first court to tackle the question of "whether knowingly exposing someone to a risk of HIV-infection is by itself sufficient to infer... an intent to kill." Refusing to follow the current judicial trend toward increasing liability, the court answered the question in the negative.
The Smallwood decision has sparked an intense debate. Proponents, including gay rights advocates, AIDS activists, and defense attorneys, have applauded it as "stand[ing] for the proposition that persons with AIDS should be treated like everyone else in the criminal system." They also contend that a conviction in Smallwood could have discouraged voluntary HIV testing HIV test Various tests have been used to detect HIV and production of antibodies thereto; some HTs shown below are no longer actively used, but are listed for completeness and context. See HIV, Immunoblot. , in that someone unaware of his or her HIV status cannot be guilty of knowing exposure. Victims' rights groups A victim's rights group is a type of interest group which advocates or lobbies for legal, social or political change on behalf of victims of serious crime or injustice. Members of such groups often include family members or friends of such victims. and prosecutors, in contrast, accuse the Smallwood court of exalting ex·alt
tr.v. ex·alt·ed, ex·alt·ing, ex·alts
1. To raise in rank, character, or status; elevate: exalted the shepherd to the rank of grand vizier.
2. legal technicalities over justice and ignoring the well-being of the public. This Case Note will argue that, given the facts in Smallwood and the constraints imposed upon such prosecutions by the intent and causation requirements of traditional homicide statutes, the court's holding was the only legally proper result. Morally, however, the outcome was reprehensible rep·re·hen·si·ble
Deserving rebuke or censure; blameworthy. See Synonyms at blameworthy.
[Middle English, from Old French, from Late Latin repreh and can only be corrected by state enactment of HIV-specific criminal statutes.
In Smallwood, the defendant, Dwight Ralph Smallwood, pleaded guilty to charges of raping and robbing three women. The trial court also convicted Smallwood of attempted second degree murder and assault with intent to murder for exposing the women, through rape, to the risk of contracting HIV. Unlike most other attempted murder prosecutions for knowing exposure, however, there was no extrinsic evidence of intent. The only evidence produced by the State to support the charge that Smallwood intended to kill his victims was: (1) his knowledge of his HIV-positive status; (2) his awareness of the possibility of transmitting the virus through unprotected sex Unprotected sex refers to any act of sexual intercourse in which the participants use no form of barrier contraception. Sexually transmitted infections
Specifically, unprotected sex ; and (3) his failure to use condoms during the rapes.
The Maryland Court of Appeals held the evidence insufficient to satisfy the intent requirement of the attempted murder charges, which required proof beyond a reasonable doubt that Smallwood intended to kill his victims "`under circumstances that would not legally justify or excuse the killing or mitigate it to manslaughter.'" The court held that for circumstantial evidence circumstantial evidence
In law, evidence that is drawn not from direct observation of a fact at issue but from events or circumstances that surround it. If a witness arrives at a crime scene seconds after hearing a gunshot to find someone standing over a corpse and holding a to support the charge, "it must be shown that the victim's death would have been a natural and probable result of the defendant's conduct," as is the case when one fires a deadly weapon deadly weapon n. any weapon which can kill. This includes not only weapons which are intended to do harm like a gun or knife, but also blunt instruments like clubs, baseball bats, monkey wrenches, an automobile or any object which actually causes death. at a vital part of another person's body. The State had argued that Smallwood's actions were analogous to firing a deadly weapon, but the court rejected this analogy, reasoning that, although death by AIDS is one natural consequence of one occasion of unprotected sex, it is not a sufficiently probable result. While the improbability im·prob·a·bil·i·ty
n. pl. im·prob·a·bil·i·ties
1. The quality or condition of being improbable.
2. Something improbable.
Noun 1. of transmission was the main ground upon which the Court of Appeals rested its decision, it also noted that Smallwood's actions could be "wholly explained by an intent to commit rape and armed robbery." Therefore, his actions alone could not support the inference that he also had an intent to kill. The court concluded that, in the absence of additional evidence of intent beyond Smallwood's knowledge of his HIV status, it was not possible to infer an intent to kill.
Although its reasoning was fallacious in some respects, the Smallwood court reached the only legally proper result. Because Smallwood's conduct of engaging in unprotected nonconsensual sex can be explained by an intent to rape, the inference that Smallwood acted with reckless indifference as to whether his victims contracted HIV is a much stronger and more reasonable inference than that he acted with the specific intent to murder them. Because there was no extrinsic evidence of Smallwood's intent, the most that can reasonably be inferred from his conduct is that he did not care whether he infected his victims. Therefore, he can be convicted of reckless endangerment, but he cannot be guilty of attempted murder.
The problem with this outcome is that because reckless endangerment is typically a misdemeanor, the punishment does not fit the crime. It is a fundamental principle of the criminal law that punishment be proportionate to the seriousness of an offense. Knowingly exposing another person to the risk of contracting HIV through sexual intercourse sexual intercourse
or coitus or copulation
Act in which the male reproductive organ enters the female reproductive tract (see reproductive system). - whether in the context of a rape or a consensual but uninformed encounter - is a serious wrong. "AIDS rape," for example, is a qualitatively different crime than rape because the victim is subjected to additional fears, stigmatization stigmatization /stig·ma·ti·za·tion/ (stig?mah-ti-za´shun)
1. the developing of or being identified as possessing one or more stigmata.
2. the act or process of negatively labelling or characterizing another. , and potential loss of life. The same harms result when an individual who engaged in unprotected consensual sex later learns that his or her partner was HIV-positive. Therefore, although Smallwood's crime of knowingly exposing his rape victims to the risk of contracting HIV did not legally amount to the felony of attempted murder, the law should treat this act more seriously than a misdemeanor.
Smallwood's greatest significance lies in its demonstration that traditional criminal homicide statutes are unable to address adequately the offense of knowingly exposing another to HIV. The two main obstacles to such prosecutions are proof of intent and proof of causation. Intent is the main evidentiary ev·i·den·tia·ry
1. Of evidence; evidential.
2. For the presentation or determination of evidence: an evidentiary hearing.
Adj. 1. problem in cases in which it is uncertain whether the victim will contract HIV. Such cases necessarily involve attempted homicide charges and, therefore, require proof of specific intent to kill. Smallwood illustrates the difficulty of proving such intent, particularly where there is no extrinsic EVIDENCE, EXTRINSIC. External evidence, or that which is not contained in the body of an agreement, contract, and the like.
2. It is a general rule that extrinsic evidence cannot be admitted to contradict, explain, vary or change the terms of a contract or of a intent evidence. Of course, intent must be established regardless of whether or not the victim contracts HIV. However, if it is known that the victim has contracted HIV, the requisite intent is not necessarily the intent to kill. Instead, the prosecution could bring a charge of: (1) manslaughter, for which proof of recklessness would suffice; (2) depraved heart murder depraved heart murder Forensic psychiatry The killing of a person by extreme atrocity, with malicious intent inferred by the nature of the act. See Manslaughter, Murder, Serial murder. (if the jurisdiction recognizes that offense, as does Maryland), for which proof of depraved de·praved
Morally corrupt; perverted.
de·praved·ly adv. indifference to human life is sufficient; or (3) in the context of rape accompanied by the death of the victim from AIDS, felony-murder, for which proof of intent to commit the underlying felony of rape would suffice. Hence, proof of intent is primarily an obstacle to prosecutions in which it is not known whether the victim will contract HIV.
Although prosecutors in states that delay prosecution until it has been determined that the victim actually contracted HIV can avoid the Smallwood problem of proving intent to kill, they still face the other main proof problem, causation, which need not be established in Smallwood-type attempt cases. To demonstrate causation in a homicide case, the prosecution must prove beyond a reasonable doubt that the defendant was HIV-positive at the time of his conduct and that it was the defendant's conduct that transmitted HIV to the victim. In some jurisdictions, however, even if direct causation can be shown, the "year and a day" rule - which requires a victim to die within a year after the defendant's conduct in order for criminal liability for the death to attach - might preclude prosecution. Furthermore, the delay involved in determining whether the victim contracts HIV can actually work to the defendant's advantage. Finally, this "wait-and-see" approach does not redress the harm of knowingly exposing another to the risk of HIV infection. It only applies in cases of knowing transmission.
Jurisdictions that recognize a cause of action for attempted manslaughter can avoid the proof problems associated with both intent and causation because recklessness satisfies the intent element for that crime and causation need not be proved. However, most jurisdictions view this offense as a logical impossibility a condition or statement involving contradiction or absurdity; as, that a thing can be and not be at the same time. See
See also: Impossibility because it requires a showing of intent to commit an unintentional killing. A solution to this problem for jurisdictions that generally do not recognize a charge of attempted manslaughter would be to do so in the narrow context of HIV-knowing-exposure cases. This solution, however, smacks of judicial activism Noun 1. judicial activism - an interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court)
broad interpretation and could present separation of powers separation of powers: see Constitution of the United States.
separation of powers
Division of the legislative, executive, and judicial functions of government among separate and independent bodies. concerns if implemented without the approval of the state legislature A state legislature may refer to a legislative branch or body of a political subdivision in a federal system.
The following legislatures exist in the following political subdivisions:
In light of the difficulties involved under traditional criminal statutes in prosecuting HIV-infected persons who knowingly expose others to the virus, states that currently lack laws that make knowing exposure a felony should enact such statutes. HIV-specific statutes are the best method for dealing with knowing exposure because, when properly drafted, they evade the proof problems associated with both intent to kill and causation while providing immunity to those who disclose their HIV-positive status to their sex partners. The state need only show that the defendant knew or should have known that he had HIV, knew how the virus could be transmitted, and nonetheless engaged in conduct - without first obtaining the other person's informed consent - that could transmit the virus. Smallwood illustrates that in the absence of such statutes and in the absence of extrinsic evidence of intent to kill, states will simply have to settle for charging defendants who knowingly expose others to HIV with the misdemeanor of reckless endangerment.
Precisely because a misdemeanor conviction in such cases seems inadequate, it is understandable that victims' rights victims' rights, rights of victims to have a role in the prosecution of the perpetrators of crimes against them. Nearly all U.S. states have enacted some victims' rights legislation. advocates argue that the Smallwood court should have upheld Smallwood's conviction. However, the court's obligation to protect the constitutional right of the defendant to have each element of a crime proved beyond a reasonable doubt precluded such judicial activism. The state legislatures, however, do have the authority and the duty to enact laws to preserve the well-being of the public. In states that still lack these statutes, the legislatures should enact criminal statutes that specifically designate as a felony the knowing exposure of another to HIV.
(1.) See Lori A. David, The Legal Ramifications ramifications npl → Auswirkungen pl in Criminal Law of Knowingly Transmitting AIDS, 19 Law & Psychol. Rev. 259, 259 (1995); Kimberly A. Harris, Death at First Bite: A Mens Rea As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and wilfulness.
A fundamental principle of Criminal Law is that a crime consists of both a mental and a physical element. Approach in Determining Criminal Liability for Intentional HIV Transmission, 35 Ariz. L. Rev. 237, 238 (1993). At least part of the impetus for greater criminalization crim·i·nal·ize
tr.v. crim·i·nal·ized, crim·i·nal·iz·ing, crim·i·nal·iz·es
1. To impose a criminal penalty on or for; outlaw.
2. To treat as a criminal. was the passage in 1990 of the Ryan White Ryan Wayne White (December 6, 1971 – April 8, 1990) was a young man with AIDS from Kokomo, Indiana who became a national spokesman for AIDS, after being expelled from school because of his infection. Comprehensive AIDS Resources Emergency (CARE) Act, 42 U.S,C. [Sections] 300ff-47 (1994), which conditions "state emergency AIDS relief grants ... upon a state's showing statutory capability to prosecute individuals infected with HIV who intentionally or knowingly infect or expose others." Stephen V Stephen V, 1239–72, king of Hungary (1270–72), son and successor of Bela IV. As a child he was named duke of Transylvania, and in 1259 he was made duke of Styria. . Kenney, Comment, Criminalizing HIV Transmission: Lessons From History and a Model for the Future, 8 J. Contemp. Health L. & Pol'y 245, 247 (1992).
(2.) For examples of cases in which HIV-positive defendants have been convicted of attempted murder for knowingly exposing others to the virus, see Scroggins v. State, 401 S.E.2d 13 (Ga. Ct. App. 1990); State v. Haines, 545 N.E.2d 834 (Ind. Ct. App. 1989); State v. Caine, 652 So. 611 (La. Ct. App. 1995; State v. Hinkhouse, 912 P.2d 921 (Or. Ct. App. 1996); and Weeks v. State, 834 S.W.2d 559 (Tex. App. 1992, pet. ref'd). Over 200 AIDS-related criminal prosecutions have been brought in civilian and military tribunals. See Rorie Sherman, Criminal Prosecutions on AIDS Growing, Nat'l L.J., Oct. 14, 1991, at 3. Attempted murder is one of the most common charges in such prosecutions. See Donald H.J. Hennann, Criminalizing Conduct Related to HIV-transmission, 9 St. Louis U. Pub. L. Rev. 351, 365 (1990).
(3.) See, e.g., State v. Kimbrough, 888 S.w.2d 888, 891 (Tenn. 1996).
(4.) Such evidence usually takes the form of statements by the defendant giving rise to an inference of an intent to kill. See, e.g., Caine, 652 So. 2d at 613 (reporting that defendant said, "I'll give you AIDS,'" before stabbing victim with syringe). In a few cases, however, the extrinsic evidence supporting such an inference is significantly weaker. See, e.g., Scroggins, 401 S.E.2d at 18 (finding that defendant "sucked up excess sputum sputum /spu·tum/ (spu´tum) [L.] expectoration; matter ejected from the trachea, bronchi, and lungs through the mouth.
sputum cruen´tum bloody sputum. before biting" victim and then laughed when asked if he had AIDS).
(5.) 680 A.2d 512 (Md. 1996).
(6.) Id. at 517 n.4 (emphasis added).
(7.) See Amy Argetsinger Amy Argetsinger (September 8 1968) is a staff writer for the Style section of the Washington Post. She shares the "Reliable Source" column with Roxanne Roberts. Biography
Amy Argetsinger is a native of Alexandria, Virginia. She attended the St. , Md.'s Top Court Says HIV Not Enough To Convict Rapist of Attempted Murder, Wash. Post., Aug. 2, 1996, at A1.
(9.) See id.; David, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. note 1, at 260. But see Ind. Code Ann. [Sections] 35-42-2-6 (West 1996) (making reckless failure to know of HIV infection alternative mens rea for offense of battery by body waste).
(10.) See Argetsinger, supra note 7.
(11.) Smallwood did not challenge his conviction by the trial court on reckless endangerment charges. Smallwood's counsel conceded on appeal that, "[t]he most that can reasonably be inferred ... is that he is guilty of recklessly endangering his victims by exposing them to the risk that they would become infected [with HIV] themselves." Smallwood, 680 A.2d at 514.
(12.) Id. at 515 (quoting State v. Earp, 571 A.2d 1227 (Md 1990)).
(13.) Id. at 516.
(14.) See id.
(16.) Most notably, the court's emphasis on the objective, statistical, medical probability of HIV transmission undermined the basic nature of the intent requirement, which is a subjective inquire into the particular defendant's state of mind. See id. at 515 ("`[I]ntent is subjective ...'") (quoting Earp, 571 A.2d at 1233). In defining "probable result" to mean only the objective probability Objective probability
The true unobservable underlying odds that something is so. of transmission, the court ignored the interrelation between the defendant's subjective belief regarding the probability of transmission and his intent. Other courts, in contrast, have properly stressed the importance of the defendant's belief in the probability of transmission -- even in circumstances in which transmission was practically impossible. See, e.g., State v. Smith, 621 A.2d 493, 510 (N.J. super, Ct. App. Div. 1993) (holding that defendant could be convicted of attempted murder if "defendant himself believed that biting [victim] might infect him, regardless of whether that belief was a reasonable one").
Furthermore, even under the probabilistic (probability) probabilistic - Relating to, or governed by, probability. The behaviour of a probabilistic system cannot be predicted exactly but the probability of certain behaviours is known. Such systems may be simulated using pseudorandom numbers. approach, the Smallwood decision is still problematic in that it ignored the fact that the probability of HIV transmission varies with the circumstances of the exposure but does not necessarily correspond to an increased or decreased intent to kill. For example, the probability of transmission in a long-term consensual sexual relationship would be much greater than through just one sexual encounter. Yet, absent extrinsic evidence of intent, there would be no greater reason to believe that the defendant intended to kill his partner. The Smallwood approach, however, would impute impute v. 1) to attach to a person responsibility (and therefore financial liability) for acts or injuries to another, because of a particular relationship, such as mother to child, guardian to ward, employer to employee, or business associates. greater criminal culpability culpability (See: culpable) to such a defendant.
(17.) Where an inference consistent with a defendant's innocence is "stronger, i.e., more logical and more reasonable," than an inference consistent with his guilt, a rational factfinder must draw the stronger inference consistent with innocence. See Smallwood v. State, 661 A.2d 747, 756 (Md. Ct. Spec. App. 1995) (Bloom, J., dissenting). A finding of reckless indifference would fail the intent requirement of the attempted murder charges and would therefore be consistent with Smallwood,s innocence of those charges.
(18.) See Model Penal Code The Model Penal Code (MPC) is one of the most important developments in American law, and perhaps the most important influence on American Criminal Law since it was completed in 1962. [SEctions] 211.2 (1985) (defining reckless endangerment as misdemeanor). Under Maryland law, reckless endangerment is a misdemeanor punishable by up to a $5000 fine and five years imprisonment Imprisonment
See also Isolation.
former federal maximum security penitentiary, near San Francisco; “escapeproof.” [Am. Hist.: Flexner, 218]
German prison ship in World War II. [Br. Hist. . See Md. Ann. Code art. 27, [Sections] 12A-2(a)(1) (1996). In contrast, attempted second degree murder is a felony punishable by imprisonment for up to 30 years. See id. [Sections] 411 A(a).
(19.) See, e.g., Jeremy Bentham, of the Proportion Between Punishments and Offences, in An Introduction to the Principles of Morals and Legislation 165-74 (J.H. Burns & H.L.A. Hart eds., 1970).
(20.) I use this term to refer to a rape in which the offender is HIV-positive or has AIDS. Stefanie Wepner, in contrast, uses the term to denote the situation in which a person with HIV or AIDS intends to spread the virus through rape. See Stefanie S. Wepner, The Death Penalty: A Solution to the Problem of Intentional AIDS Transmission Through Rape, 26 J. Marshall L. Rev. 941, 943-44 (1993).
(21.) See id. at 944. But see Argetsinger, supra note 7 (quoting gay rights activist who claims that "`HIV alone is not ... a sufficient basis to treat two identically horrible crimes differently under the law'") (emphasis added).
(22.) See Model Penal Code [sections] 210.3 (1985).
(23.) See id. [Sections] 210.2.
(24.) See Bruce v. State, 566 A.2d 103, 104 (Md. 1989).
(25.) For a more elaborate discussion of the difficulties involved in proving causation, see Harris, supra note 1, at 240-41; Jacob A. Heth heth
The eighth letter of the Hebrew alphabet. See Table at alphabet.
[Hebrew êt, of Phoenician origin. , Dangerous Liaisons: Criminalizing Conduct Related to HIV Transmission, 29 Willamette L. Rev. 843, 855 (1993).
(26.) See David, supra note 1I, at 263.
(27.) In this context, delay works to the defendant's advantage in two ways. First, "[a]s the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade," Barker v. Wingo Barker v. Wingo, 407 U.S. 514 (1972), was a case in which the United States Supreme Court held that determinations of whether or not the Sixth Amendment right to a speedy trial for defendants in criminal cases has been denied, must be made on a , 407 U.S. 514, 521 (1972), making acquittal The legal and formal certification of the innocence of a person who has been charged with a crime.
Acquittals in fact take place when a jury finds a verdict of not guilty. more likely. Second, an HIV-positive defendant may die before it can be determined whether the victim has contracted the virus.
(28.) Although most jurisdictions reject such a charge, some states do recognize attempted manslaughter as a legitimate cause of action. See People v. Thomas, 729 P.2d 972 (Colo. 1986) (en banc [Latin, French. In the bench.] Full bench. Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. In other countries, it is common for a court to have more members than are ); Taylor v. State, 444 So. 2d 931 (Fla. 1983).
(29.) See, e.g., State v. Holbron, 904 P.2d 919-22 (Haw haw, common name for several plants, e.g., the hawthorn and the black haw (see honeysuckle). . 1995) (discussing logical impossibility of attempted involuntary manslaughter The act of unlawfully killing another human being unintentionally.
Most unintentional killings are not murder but involuntary manslaughter. The absence of the element of intent is the key distinguishing factor between voluntary and involuntary manslaughter. and citing cases in accord). Attempted depraved heart murder is another charge unavailable to prosecutors in HIV-knowing-exposure cases because it is considered to be a logically impossible offense. See, e.g., State v. Johnson, 707 P.2d 1174, 1180 (N.M. Ct. App. 1985). Similarly, in knowing-exposure cases, like Smallwood, that involve rape as the means of transmission, attempted felony-murder is not an available charge because it, too, is considered a legal fiction. See, e.g., State v. Pratt, 873, P2d 800, 812 (Idaho 1993).
(30.) Some states that do not generally recognize a charge of attempted manslaughter nonetheless do so in limited circumstances. See, e.g., People v. Foster, 225 N.E.2d 200 (N.Y. 1967) (sustaining plea to attempted manslaughter, generally invalid charge in New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of , because defendant freely agreed to plead guilty to it). Of course, the difference between recognizing the charge of attempted manslaughter in knowing-exposure cases and permitting it in Foster is that the defendant consented to the state's use of such a charge in Foster but might not do so in a knowing-exposure prosecution.
(31.) Maryland enacted an HIV-specific statute in 1989. See Md. Code Ann., Health-Gen. I [Sections] 18-601.1 (1994). However, the statute addresses only knowing transmission, not knowing exposure. To prosecute Smallwood under this provision, the State would still have to prove that he either transferred HIV to his victims or attempted to transfer HIV. See id. [Sections] 18-601(a). This would require a showing of intent to transfer the virus, which leaves the State in the same position as proving intent to kill. Furthermore, knowing transmission is only a misdemeanor. See id. [SEctions] 18-601.1(b). For examples of existing state statutes that make knowingly exposing another to HIV a felony, see Ga. Code Ann. [Sections] 16-5-60 (1996); S.C. Code Ann. [Sections] 44-29-145 (Law Co-op. Supp. 1995); Tenn. Code Ann. [Sections] 39-19-109 (Supp. 1996)@.
(32.) See Heth, supra note 25, at 846, 861-62.
(33.) See In re Winship In re Winship, 397 U.S. 358 (1970), was a United States Supreme Court decision which held that when a juvenile is charged with an act which would be a crime if committed by an adult, every element of the offense must be proved beyond a reasonable doubt. , 397 U.S. 358, U.S. 358, 364 (1970) (holding that Due Process Clause requires "proof beyond a reasonable doubt of every fact necessary to constitute the crime ...