According to case law, "an infamous crime against nature" is sodomy (Yoshino, 2002). We can see here, again, a modern shift from common law with the inclusion of sodomy as a possible element of felony assault. Over the course of time, Idaho lawmakers clearly saw a need to include such a "crime" within their definitions.
While it is obvious that Idaho case law has changed over time with society with such inclusions as abortion, the death or injury of a fetus, and sodomy, it is equally clear more alterations are needed. The addition of the element of "ability" in the definition of assault (IC 18-901) may need clarification. While the addition is needed to create distinction between assault and threats, the term alone is subjective. This creates ambiguity within the definition, creating the possibility of incorrect application of the law.
Another alteration may need to be a further defining of the term "infamous crime against nature" to reflect a more modern term (IC 18-907). As it is stated, this phrase could be used in a number of ways the original writers of the law did not intend. If in fact the term is intended to mean sodomy, the phrasing should be rewritten...
By clarifying subjective verbiage and altering terminology, Idaho has used the base elements of common law to form the laws for assault and battery. While these changes have certainly helped to clarify issues, there are several areas that still require addition alterations to avoid any possible ambiguity within the law.
References
American Heritage Dictionary. (2003). Common law. American Heritage Dictionary of the
English Language. New York: Houghton Mifflin Company.
Idaho Statutes, chapter 18, 18-901-18-910.
Jacobs, J.B. & Potter, K. (2001). Hate crimes:
Criminal law &
identity politics. Oxford: Oxford University Press.
Kirland v. State, 43 Ind. 146, 154, 1873.
McClain, E. (1897). A treatise on the criminal law as now administered in the United States. Wilmette, IL: Callaghan and Co.
McKinney, W.M. & Rich, B.A. (1914). Ruling case law: Decisions and annotations.
San Francisco, CA: Bancroft-Whitney.
People v Carlson, 160 Mich. 426, 429; 125 NW 3612, 1910.
State v. Magill, 19 N.D. 131; N.W. 330, 2266, 1892.
State v. McAfee, 107 N.C. 812,…
