Themis July 2019 Forum

[cavalier1138]

Can somebody clarify this for me??
PE #3 (PM) Q197
The answer explanation stated that "Force" in Robbery can include giving a victim drugs (slipping sedative into drink) in order to induce unconsciousness and thereby permit larceny to occur. But our crim law outline states that the victim must be "aware" of force/intimidation?? Having trouble reconciling these two...thanks!

For robbery, the force requirement is anything that would go beyond the normal force necessary to take and carry the property. So if someone didn't notice being pickpocketed, and a defendant just took the property and walked away, then no additional force was necessary to commit the larceny beyond what would normally have been required to take and carry the property. But in this example, the larceny wouldn't have occurred without the additional force (using the sedative). Does that help?

If it doesn't, I think what you got tripped up on was the distinction between a robbery involving threats of force (larceny + assault) and a robbery involving actual force (larceny + battery). The awareness requirement is for the threat of force only.

[JusPassItToWill]

I'm a bit bummed/stressed, because for the first 9 mixed-subject sets of PQs I've scored at least 72% or above, and on 10 and 11 I've fallen below the goal score. Not sure if they are just really drilling me on the obscure questions now and it's throwing me off, or if I'm psyching myself out too much.

Also, on the last problem set, I somehow got the exact same question twice (it was question 1 and question 39 for me). What are the odds of that?

[AussieAustin]

I’ve come to the conclusion that all the supplemental things people recommend getting for the MBE are a waste of time. I purchased Emanuel’s T&T and recently NCBE simulated exam questions. Thinking I want a taste of real past exam questions. Emanuel’s has mostly questions thenis has. Some of their tips are good, but perhaps not worth the money. Just did a bunch of the NCBE questions and they are also mostly questions Themis has. So basically, just stick to Themis and don’t waste your money folks!

[Dunnkirk85]

I'm at about 77% after doing mixed sets #1-10 and the practice exam #4 and above 71% after 2,000 questions total. Should I just focus on the MEE topics at this point? Is everyone trying to complete all 20 of the mixed sets? I want to give myself a cushion but I am not sure if the Themis questions are harder than the bar and if I should expect to go up or down on the actual test. And I suck (badly) at essays

[cherryfilter]

Can somebody clarify this for me??
PE #3 (PM) Q197
The answer explanation stated that "Force" in Robbery can include giving a victim drugs (slipping sedative into drink) in order to induce unconsciousness and thereby permit larceny to occur. But our crim law outline states that the victim must be "aware" of force/intimidation?? Having trouble reconciling these two...thanks!

For robbery, the force requirement is anything that would go beyond the normal force necessary to take and carry the property. So if someone didn't notice being pickpocketed, and a defendant just took the property and walked away, then no additional force was necessary to commit the larceny beyond what would normally have been required to take and carry the property. But in this example, the larceny wouldn't have occurred without the additional force (using the sedative). Does that help?

If it doesn't, I think what you got tripped up on was the distinction between a robbery involving threats of force (larceny + assault) and a robbery involving actual force (larceny + battery). The awareness requirement is for the threat of force only.

Ah, got it! Thanks guys!

Just scored 62% on my PE #4...I don't understand why...My mixed sets have consistently been over 70% I was thinking that I could just focus on MEE now but i guess not..sigh

[AussieAustin]

I'm at about 77% after doing mixed sets #1-10 and the practice exam #4 and above 71% after 2,000 questions total. Should I just focus on the MEE topics at this point? Is everyone trying to complete all 20 of the mixed sets? I want to give myself a cushion but I am not sure if the Themis questions are harder than the bar and if I should expect to go up or down on the actual test. And I suck (badly) at essays

Sounds like you should definitely be putting more focus into the MEE. 2000 questions is a lot and your % is really high (I would kill for that). I'd start focusing on the MEE and just do a few MBE questions a day to keep your mind in it. I'm not aiming to do all 20 sets because the questions now are so repetitive.

[wyoming92]

Working on an MBE set out of order because I didn’t want to do yet another essay before bed...

That Blueberries Question...

[+] Spoiler

So. Specific. Seriously?! Unharvested crops are a real property, not personal property, taking, and not subject to larceny if you’re stopped before the stealing is complete? This question makes me irrationally angry.

[themisjuly19help]

I'm doing Themis for New York and I'm doing fine on the MBE (70% overall, 78% since the mixed sets started), but I cannot crack 3 on the essays. One 4 but other than that 3s across the board. Should I be worried?

[dianetics08]

Working on an MBE set out of order because I didn’t want to do yet another essay before bed...

That Blueberries Question...

[+] Spoiler

So. Specific. Seriously?! Unharvested crops are a real property, not personal property, taking, and not subject to larceny if you’re stopped before the stealing is complete? This question makes me irrationally angry.

Yep, that one pissed me off too. But hey, I’ll never forget it now.

[kenken637]

So I'm reviewing torts, and kind of got confused (rather post here than wait 3 days for Themis to answer).

The outline and final review outline says Pure Several Liability is the majority rule & Pure Comparative Negligence.
But Lisa Tucker said the default rule is joint & several liability... and to apply it unless told otherwise. Is this true even if its not the majority rule?

[HairySmokeball]

Can someone explain this *better* than Themis?

A 14-year-old girl suffered from pelvic pain, but did not want to go to a gynecologist. Her 19-year-old boyfriend, who reasonably believed that the girl was 16 years old, told her that having sexual intercourse with him would cure the problem. The boyfriend knew that his statement was false. Relying on his statement, the girl gave her consent, and the two had sexual intercourse. Later, the girl learned that intercourse could not and did not cure her problem, and notified the police.

Rape is defined by statute as “sexual intercourse with a person against that person’s will or with a person under the age of 14 years old.” Rape is a second-degree felony unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, (ii) the victim is under the age of 14, or (iii) the victim is 14 or 15 years old and the actor is at least four years older, in which cases the offense is a first-degree felony.

The boyfriend was convicted of first-degree rape of the girl. The boyfriend has appealed the conviction, contending that he is not guilty of the crime of rape.

Should the appellate court overturn the conviction?

Correct Answer: Yes, because the intercourse was not against the girl’s will and she was 14 years old.
Yes, because the boyfriend was at least four years older than the girl was.
No, because the boyfriend obtained the girl’s consent through fraudulent means.
You Selected: No, because lack of knowledge as to the age of the victim is not a defense.

Answer choice A is correct. Since the girl was 14 years old, sexual intercourse with her is rape only if it is against her will. Fraudulent conduct does not negate consent in most situations. Here, the boyfriend induced the girl to consent to sexual intercourse through false promises but that, standing alone, does not negate consent. The boyfriend did not conceal the actual nature of the act. Consequently, the fraud was in the inducement, not in the factum. For that reason, answer choice C is incorrect. Answer choice B is incorrect because the statute provides for increasing the crime from second-degree rape to first-degree rape if the victim is 14 or 15 years old and the perpetrator is at least four years older, but does not define consensual sex between such persons as rape. Answer choice D is incorrect because, although a defendant cannot defeat a rape charge by pleading lack of knowledge as to the true age of the person with whom the defendant had sex, consensual sex with a 14-year-old, the girl’s true age, is not rape under the wording of the statute.

The part that is tripping me up is, " Rape is a second-degree felony unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, (ii) the victim is under the age of 14, or (iii) the victim is 14 or 15 years old and the actor is at least four years older, in which cases the offense is a first-degree felony.

The fact pattern said she was 14 and he 19...a 5 year difference. I know law students aren't so good at math...but...I am feeling REAL stupid right now.

[Necho2]

Can someone explain this *better* than Themis?

A 14-year-old girl suffered from pelvic pain, but did not want to go to a gynecologist. Her 19-year-old boyfriend, who reasonably believed that the girl was 16 years old, told her that having sexual intercourse with him would cure the problem. The boyfriend knew that his statement was false. Relying on his statement, the girl gave her consent, and the two had sexual intercourse. Later, the girl learned that intercourse could not and did not cure her problem, and notified the police.

Rape is defined by statute as “sexual intercourse with a person against that person’s will or with a person under the age of 14 years old.” Rape is a second-degree felony unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, (ii) the victim is under the age of 14, or (iii) the victim is 14 or 15 years old and the actor is at least four years older, in which cases the offense is a first-degree felony.

The boyfriend was convicted of first-degree rape of the girl. The boyfriend has appealed the conviction, contending that he is not guilty of the crime of rape.

Should the appellate court overturn the conviction?

Correct Answer: Yes, because the intercourse was not against the girl’s will and she was 14 years old.
Yes, because the boyfriend was at least four years older than the girl was.
No, because the boyfriend obtained the girl’s consent through fraudulent means.
You Selected: No, because lack of knowledge as to the age of the victim is not a defense.

Answer choice A is correct. Since the girl was 14 years old, sexual intercourse with her is rape only if it is against her will. Fraudulent conduct does not negate consent in most situations. Here, the boyfriend induced the girl to consent to sexual intercourse through false promises but that, standing alone, does not negate consent. The boyfriend did not conceal the actual nature of the act. Consequently, the fraud was in the inducement, not in the factum. For that reason, answer choice C is incorrect. Answer choice B is incorrect because the statute provides for increasing the crime from second-degree rape to first-degree rape if the victim is 14 or 15 years old and the perpetrator is at least four years older, but does not define consensual sex between such persons as rape. Answer choice D is incorrect because, although a defendant cannot defeat a rape charge by pleading lack of knowledge as to the true age of the person with whom the defendant had sex, consensual sex with a 14-year-old, the girl’s true age, is not rape under the wording of the statute.

The part that is tripping me up is, " Rape is a second-degree felony unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, (ii) the victim is under the age of 14, or (iii) the victim is 14 or 15 years old and the actor is at least four years older, in which cases the offense is a first-degree felony.

The fact pattern said she was 14 and he 19...a 5 year difference. I know law students aren't so good at math...but...I am feeling REAL stupid right now.

So if it is rape- it's 1st degree rape, you're absolutely right based on that math! But it isn't rape because "against her will" in the statute doesn't include fraudulent conduct, like what the 19 year old did here. So it isn't rape at all, but if it had been rape, it would have automatically been 1st degree like you thought.

[cavalier1138]

So I'm reviewing torts, and kind of got confused (rather post here than wait 3 days for Themis to answer).

The outline and final review outline says Pure Several Liability is the majority rule & Pure Comparative Negligence.
But Lisa Tucker said the default rule is joint & several liability... and to apply it unless told otherwise. Is this true even if its not the majority rule?

Yes, the UBE default is joint and several liability, even though most states don't use it. Kind of like the MBE default for crim law is common law, even though I can't think of a single state that uses the pure common law definitions in their criminal code.

I assume if you take a state-specific bar, that state's rules apply.

[cavalier1138]

So if it is rape- it's 1st degree rape, you're absolutely right based on that math! But it isn't rape because "against her will" in the statute doesn't include fraudulent conduct, like what the 19 year old did here. So it isn't rape at all, but if it had been rape, it would have automatically been 1st degree like you thought.

On a related tangent: Is anyone else disturbed that almost every rape question on the MBE seems to be geared towards determining that there was no rape?

[DrHankMardukas]

So if it is rape- it's 1st degree rape, you're absolutely right based on that math! But it isn't rape because "against her will" in the statute doesn't include fraudulent conduct, like what the 19 year old did here. So it isn't rape at all, but if it had been rape, it would have automatically been 1st degree like you thought.

On a related tangent: Is anyone else disturbed that almost every rape question on the MBE seems to be geared towards determining that there was no rape?

Willing to reconsider my career in corporate transactional and move into crim defense if getting clients off is as easy as the MBE questions suggest

[HairySmokeball]

Can someone explain this *better* than Themis?

A 14-year-old girl suffered from pelvic pain, but did not want to go to a gynecologist. Her 19-year-old boyfriend, who reasonably believed that the girl was 16 years old, told her that having sexual intercourse with him would cure the problem. The boyfriend knew that his statement was false. Relying on his statement, the girl gave her consent, and the two had sexual intercourse. Later, the girl learned that intercourse could not and did not cure her problem, and notified the police.

Rape is defined by statute as “sexual intercourse with a person against that person’s will or with a person under the age of 14 years old.” Rape is a second-degree felony unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, (ii) the victim is under the age of 14, or (iii) the victim is 14 or 15 years old and the actor is at least four years older, in which cases the offense is a first-degree felony.

The boyfriend was convicted of first-degree rape of the girl. The boyfriend has appealed the conviction, contending that he is not guilty of the crime of rape.

Should the appellate court overturn the conviction?

Correct Answer: Yes, because the intercourse was not against the girl’s will and she was 14 years old.
Yes, because the boyfriend was at least four years older than the girl was.
No, because the boyfriend obtained the girl’s consent through fraudulent means.
You Selected: No, because lack of knowledge as to the age of the victim is not a defense.

Answer choice A is correct. Since the girl was 14 years old, sexual intercourse with her is rape only if it is against her will. Fraudulent conduct does not negate consent in most situations. Here, the boyfriend induced the girl to consent to sexual intercourse through false promises but that, standing alone, does not negate consent. The boyfriend did not conceal the actual nature of the act. Consequently, the fraud was in the inducement, not in the factum. For that reason, answer choice C is incorrect. Answer choice B is incorrect because the statute provides for increasing the crime from second-degree rape to first-degree rape if the victim is 14 or 15 years old and the perpetrator is at least four years older, but does not define consensual sex between such persons as rape. Answer choice D is incorrect because, although a defendant cannot defeat a rape charge by pleading lack of knowledge as to the true age of the person with whom the defendant had sex, consensual sex with a 14-year-old, the girl’s true age, is not rape under the wording of the statute.

The part that is tripping me up is, " Rape is a second-degree felony unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, (ii) the victim is under the age of 14, or (iii) the victim is 14 or 15 years old and the actor is at least four years older, in which cases the offense is a first-degree felony.

The fact pattern said she was 14 and he 19...a 5 year difference. I know law students aren't so good at math...but...I am feeling REAL stupid right now.

So if it is rape- it's 1st degree rape, you're absolutely right based on that math! But it isn't rape because "against her will" in the statute doesn't include fraudulent conduct, like what the 19 year old did here. So it isn't rape at all, but if it had been rape, it would have automatically been 1st degree like you thought.

I can almost buy that argument but the statue says, "sexual intercourse with a person against that person’s will or with a person under the age of 14 years old." I think it's a terribly written statute/question as the second portion doesn't speak to will AT ALL. I can see why 57% of Themis folks picked the same answer I did. Even more annoying is that nit picky shit like this gets under my skin and it takes me 20 minutes to stop cussing and move on. I am so f*ing over the f*ing test.

[HairySmokeball]

So if it is rape- it's 1st degree rape, you're absolutely right based on that math! But it isn't rape because "against her will" in the statute doesn't include fraudulent conduct, like what the 19 year old did here. So it isn't rape at all, but if it had been rape, it would have automatically been 1st degree like you thought.

On a related tangent: Is anyone else disturbed that almost every rape question on the MBE seems to be geared towards determining that there was no rape?

Willing to reconsider my career in corporate transactional and move into crim defense if getting clients off is as easy as the MBE questions suggest

Well, I think we can argue semantics of these questions/statutes but it will come down to the jury. So, with the facts I presented...I see that as a GUILTY verdict, statute be damned.

[cavalier1138]

I can almost buy that argument but the statue says, "sexual intercourse with a person against that person’s will or with a person under the age of 14 years old." I think it's a terribly written statute/question as the second portion doesn't speak to will AT ALL. I can see why 57% of Themis folks picked the same answer I did. Even more annoying is that nit picky shit like this gets under my skin and it takes me 20 minutes to stop cussing and move on. I am so f*ing over the f*ing test.

It's written like a lot of criminal statutes, honestly. And I much prefer that format to the regular remember-the-outdated-definition version.

Make sure you read each clause carefully in this kind of question. The reason a lot of people got tripped up is because they didn't read the statute carefully.

The first clause of the statute states the definition of rape: it is either intercourse against someone's will or with a person under 14. So stop there. Is this "rape" under the definition of the statute? It doesn't fall under the second definition, so all you look at is whether it's against someone's will. Fraud isn't enough, so it's not rape.

The second clause of the statute is included as a red herring. All that clause is doing is defining when rape is second-degree and when it's first-degree. If the act in question wasn't rape, it can't be classified as either. So if you can't get over the threshold of it being against someone's will (or the victim being under 14), you don't apply the second clause at all.

Edit: Also, in relation to your other post, the point is that these questions of semantics won't come down to the jury. The issue of whether the act fits the statutory definition of the charged crime is a legal determination. So in this fictional jurisdiction, a jury would never hear this rape case, because it would have to be dismissed.

[Necho2]

I can almost buy that argument but the statue says, "sexual intercourse with a person against that person’s will or with a person under the age of 14 years old." I think it's a terribly written statute/question as the second portion doesn't speak to will AT ALL. I can see why 57% of Themis folks picked the same answer I did. Even more annoying is that nit picky shit like this gets under my skin and it takes me 20 minutes to stop cussing and move on. I am so f*ing over the f*ing test.

I mean it's "under" and she isn't, she's 14 exactly. Definitely a ticky-tack question, but I think it's accurately the type of question that rewards a combo of very careful reading and knowing a bit of the law that isn't intuititve (fraudulent consent doesn't mean rape). Agreed that these can be really frustrating though!

[Dunnkirk85]

I can almost buy that argument but the statue says, "sexual intercourse with a person against that person’s will or with a person under the age of 14 years old." I think it's a terribly written statute/question as the second portion doesn't speak to will AT ALL. I can see why 57% of Themis folks picked the same answer I did. Even more annoying is that nit picky shit like this gets under my skin and it takes me 20 minutes to stop cussing and move on. I am so f*ing over the f*ing test.

I think this question is entirely straight forward, and is very similar to the questions on the actual bar at least from what is available on the NCBE's website.

The analysis here is did the defendant:

1) have sex with someone against their will ? or 2) was the person under 14?

If the person was under 14, then like typical statutory rape, consent or will would be entirely irrelevant.

Here, there was no lack of consent, and the person was 14. Therefore, the degree classifications are irrelevant.

[barryzee]

On which jurisdictional rules to apply, I found it helpful to go to the source. The NCBE publishes the MBE subject outline, available here:

http://www.ncbex.org/pdfviewer/?file=%2 ... ment%2F226

Joint and several, as per the NCBE. I'm not sure why Themis doesn't pass along the document -- it's pretty useful to take a look at.

[cherryfilter]

On which jurisdictional rules to apply, I found it helpful to go to the source. The NCBE publishes the MBE subject outline, available here:

http://www.ncbex.org/pdfviewer/?file=%2 ... ment%2F226

Joint and several, as per the NCBE. I'm not sure why Themis doesn't pass along the document -- it's pretty useful to take a look at.

This is actually helpful - thanks!

[barryzee]

Does anyone have a definitive answer on what the Themis benchmarks stand in for?

I'm looking at the national benchmarks (in the progress overview section -> MBE PQs section), and they range from about 57% to 67% for the 8 subjects. That strikes me as about a coin flip to pass the bar, but Themis publishes a pass rate well in excess of 50/50. What gives?

It could be that this is what users have received on practice questions, and the early weeks of bad answers drag down the percentages. So benchmarks for the final two weeks would be closer to 70% or something.

Or it could be that the benchmarks are a weighted average on what you should be hitting for a passing grade -- since most struggle with Real Property and excel on Torts, a 57% and 67%, respectively, are the basic floors that you need in those subjects to be in about solid passing range.

I'm asking because if this is the average % correct for Themis students, and Themis is publishing accurate pass rates, it sure seems like their practice questions are testing on a harder curve than the bar (unless early questions are really dragging down the averages).

[Necho2]

I keep feeling like I'm getting crushed on the Themis graded essays. When I feel like I did well, I rarely score above a 65, and when I miss any major point I usually get a 55 or 60. That seems substantially below the average scores that are reported, so while I've heard that the essay graders can be a bit harsh (and if mine is personally, that might skew any comparison), I'm concerned that I'm not tracking particularly well...

[themisjuly19help]

I keep feeling like I'm getting crushed on the Themis graded essays. When I feel like I did well, I rarely score above a 65, and when I miss any major point I usually get a 55 or 60. That seems substantially below the average scores that are reported, so while I've heard that the essay graders can be a bit harsh (and if mine is personally, that might skew any comparison), I'm concerned that I'm not tracking particularly well...

I've had a couple 4s and otherwise 3s across the board . . . feeelin similar