Attendant Circumstances: Definition, Concept & Examples

Instructor: Kenneth Poortvliet
To convict a person of a crime, the prosecutor needs to prove the elements of that crime. In this lesson, we will learn what attendant circumstances are and what role they play in determining the elements of a crime.

What Is a Crime?

Tom breaks into a home and makes himself a sandwich. After a bit he decides to leave, and on the way out he knocks over and destroys a vase worth $35,000. So what should the prosecutor charge Tom with? Breaking and entering? Theft of a sandwich? Burglary?

How does a prosecutor know what to charge? Then once a decision is made to charge a particular crime, how does the prosecutor know what to prove in court?

Elements of a Crime

Criminal law consists of elements, which are facts or circumstances that need to be proven before a person is convicted of a crime. There are specific elements, which are elements of a crime written into the law, also called statutory elements, meaning they were passed into law by a legislature.

For example, a state may have a criminal statute for battery that states that a person commits a battery when:

  • a person touches or strikes another,
  • intentionally, and
  • against their will

These are the specific or statutory elements of the crime of battery. Each crime also has general elements, which are unstated and are required for almost every crime. These are:

  • Actus reus: Latin for ''guilty act.'' This is the voluntary act that is at the core of a crime. It has to be voluntary, meaning the person meant to do it. For example, throwing a rock is a voluntary act. But if a person is swinging their arm around and a rock accidentally leaves their hand, this is not a voluntary act.
  • Mens rea: Latin for ''guilty mind.'' This is the evil state of mind of the person committing the guilty act, also known as level of intent. It means that a person did an act with intent to do something prohibited. For example, purposefully throwing a rock with the intent to hit a passing car is both the actus reus and mens rea.

By law, these general elements are just as necessary to prove as the specific elements. For example, the actus reus in the battery statute is the ''touches or strikes,'' and the mens rea is ''intentionally.'' If the prosecutor fails to prove either that the defendant touched the victim or that they did so intentionally, then the defendant can't be convicted.

Attendant Circumstances

Attendant circumstances are elements of a crime that are not the general elements. These are required just as much as the general elements, but are accompanying (or 'attendant') to the general elements. They're labeled elements because without them, the conviction fails. For example, in our battery statute, the attendant circumstance would be ''against their will.'' You can identify it as attendant because it's an element and it is not a general element.

Let's apply this to a possible crime. Tia purposefully punches her roommate Kendra in the eye. In applying the battery statute, she 'touched or struck' (general element of actus reus) another 'intentionally' (general element of mens rea). If the prosecutor stopped there, Tia would be free. Why? Because the statute requires another element: 'against one's will.' This is an attendant circumstance and a required element of the crime. So the prosecutor has to prove Kendra didn't want to be punched.

It sounds silly, but what if Kendra begged to be punched for some reason? Then the 'against one's will' element wouldn't be fulfilled and no crime was committed. Thus the function of the attendant circumstance in this case was to establish a crime based on the desire of the victim. So what else do attendant circumstances do?

The Role of Attendant Circumstances

Since attendant circumstances are written into the statute, they have specific purposes. Remember our battery statute. If a fourth element was added that said, ''causing serious bodily injury,'' then the statute would be a felony because the attendant circumstance of serious bodily injury increases the seriousness of the crime.

Likewise, attendant circumstances also:

  1. establish the required level and type of culpability, or
  2. defeat a defense used to escape liability, or
  3. establish jurisdiction or venue, or
  4. increase the seriousness of the crime.

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