I am not a lawyer and I am not giving legal advice. But I have a very dear friend, Jack, who had been harassed and threatened by a specific family member, Penelope. Jack filed police report after police report and nothing seemed to be happening. Finally, he complained to me that the police should know that the family members had a motive. I had to explain to him that motive plays no part in the elements of a crime. I gave Jack a refresher course on the elements of a crime from a police officer’s view
so he could understand why certain things can’t be prosecuted:
1) It must be a crime. It must be codified in law as a crime. Thus, it is not a crime to swear at a person. There is nothing in state (IL) or city or (to my knowledge) national law written that swearing is a crime. It is not a crime to destroy your own property because the law is not written to include this. It is not a crime to send a nasty fax (unless in the “totality of the situation” it changes the issue, which is NOT the purpose of a primary investigator & covers an entirely different set of circumstances). A person walking around your house late at night is NOT committing a crime – unless you have large signs declaring “NO Trespassing!” This is covered in common law, case law - as well as written law. However, if the person tries to pry open your door or window as they are on your property – it goes to the next element of a crime
2) There must be intent to commit a crime. This is where the state’s attorney probably determined no crime was committed when he/she declined to prosecute Penelope. Every family has times when a person says “I’ll kill you!” or “I want to kill you!” The courts would be overloaded with domestic cases if every time a family member stated a threat of bodily harm to another
family member. Here again, it is the primary investigator who often determines whether a crime has occurred. This is also why old-time cops hesitate to make a report for a threat made in the heat of a domestic argument.
When that person in element one (it must be a crime) tries to pry open your door, it shows the intent to commit a crime. This is why lawyers have a field day in our pocketbooks. Was the intent there? If so what kind of intent? Was the person wandering around your house lost? (No intent to trespass.) Was the person drunk? (No intent to damage your property - usually because the idiot picked the wrong house & thought your house was their house. This happens a lot in areas where there’s block upon block of similar houses.) Was your door damaged but then you put on the lights & the person realized they had the wrong house? (Then you have a crime committed - damage to property - but the intent for burglary is still lacking.) You’d never get a prosecutor willing to take it to trial for burglary.
That’s what I believe the state’s attorney was thinking when he declined to prosecute. The prosecutor felt that Penelope was angry and threatened you. This is a crime. However, it’s also a “he said – she said” situation. Then the prosecutor went the
next step – “Did she intend to carry out the threat?” Considering the difference in how much older and smaller she is in comparison to you the prosecutor thought she did not. However, the next element of a crime might apply .
3) There must be an action in furtherance of a crime. This is where a primary investigator makes another inference about that person wandering around your house and then trying to pry open a door – what was the crime the action was meant to do? (The intent is obvious the minute an action was taken.) Was that action to trespass? Was that action in furtherance of damaging your property? Was that action meant to be a burglary?
Many situations end without the ‘action in furtherance of a crime’. This is where you’d have a problem trying to prosecute Penelope. There is no way you, or a prosecutor, could show an ‘action in furtherance’ of a crime. A better solution, depending on the prosecutor, would be to approach this situation as one in which the “totality of the situation” must be considered.
One of the things Jack kept asking about was motive. His family member, Penelope had a motive. But I told Jack to look at all three elements of a crime that I explained above – not one of them included motive. A motive is not necessary to commit a crime. That’s why they could get a conviction on Manson. A person doesn’t NEED a motive or reason. However, giving a motive is helpful when you are in front of a jury. A judge is much less likely to consider motive because it is not necessary for conviction for a crime.