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17. Could the defendant properly be convicted of aggravated robbery of the elderly?
The evidence at a criminal trial showed that the defendant robbed a 66-year-old man outside a senior citizens' center. The defendant testified truthfully that the robbery had occurred on a dark night, that she had had no idea how old the victim was and had not cared how old the victim was, and that she had intended to rob whomever she encountered.
A state statute provides: «Aggravated robbery of the elderly consists of robbery committed against a victim who is 65 years of age or older.» Another state statute provides that when a criminal statute does not designate a necessary mental state, the mental state required is recklessness. A third state statute provides that a person acts recklessly if the person «consciously disregards a substantial and unjustified risk that the material element exists or will result from the person's conduct.»
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A is incorrect. This is the incorrect standard to apply to determine whether the requisite intent existed. Even if the defendant did not actually know the victim's age, or could not have reasonably known, the evidence suggests that she consciously disregarded a substantial and unjustified risk that the victim could have been elderly.
B is incorrect. As stated above, the totality of the evidence suggests that the defendant consciously disregarded a substantial and unjustified risk that the victim was 65 years-old or more, especially given that the crime occurred outside a senior citizens' center.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. While a jury could properly convict the defendant, it could do so only after finding that she acted with the requisite mens rea or scienter. Because the scienter standard for a conviction under the statute is recklessness as to the victim's age, it is not sufficient that the victim was, in fact, at least 65 years-old, or that the statute was intended to protect the elderly.