1. Leigh Silvester
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    Leigh Silvester Member

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    a legal question

    Discussion in 'Research' started by Leigh Silvester, Dec 14, 2013.

    The situation: You wake up at home in your bed to find a strange person next to you.

    There is no suggestion of any form of assault, intimidation, burglary or breaking and entering.
    Additionally there is no suggestion that they intend any harm to person or property.

    There is just a strange person there.

    What laws have they broken?

    Tort laws of trespass of land and trespass of property might apply, but perhaps you would want something more severe.
    Unlawful entry might also apply.

    Any others spring to mind?
     
  2. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Breaking and entering might apply, depending on how they got in. At common law any touching in that situation, that is unwanted, could be an assault.
     
  3. Lewdog
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    Lewdog Come ova here and give me kisses! Supporter Contributor

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    Peeping Tom?
    Attempted burglary?
    Attempted rape?
    Do they leave when you tell them to? Did they have to break anything to get in?
     
  4. Fitzroy Zeph
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    Fitzroy Zeph Contributing Member Contributor

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    My wife accuses me of similar indiscretions every morning.
     
  5. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    In what jurisdiction? Laws vary by country, province/state, even city in some cases.
     
  6. Robert_S
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    Robert_S Contributing Member

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    Trespassing at a minimum. Still, if you locked your house, I mean locked it all around, there is no way they could get in without breaking and entering, unless they got in through osmosis.
     
  7. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    I would say that there is no suggestion of those things beyond that suggested by the described scenario. If they're in my house, they broke-and-entered. If they touched me, then this is both assault and battery; if they were just in bed without touching me, it's assault.

    If you mean that this is a science-fictionish or magic scenario where they appeared in the bed without breaking and entering, I think that the law would nevertheless be likely to assume the breaking-and-entering; it's certainly not going to accept that they were transported there.
     
  8. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    as noted above, what happens next is pertinent to what misdemeanors/felonies the intruder may be charged with...

    and it also depends on where this takes place and the existing laws in that venue...
     
  9. chicagoliz
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    chicagoliz Contributing Member Contributor

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    You're asking what laws have been broken and then go on to mention torts. Torts are civil wrongs. The "something more severe" you're asking about is presumably criminal law. The specific requirements vary by jurisdiction, but certainly burglary and trespass come to mind.

    Criminal laws are enforced by the state, through the police, prosecutors, and criminal courts. The penalties could involve incarceration, fines, or some sort of community service. Civil actions are brought by individuals who have been wronged. The defendant in those cases can't go to jail (unless there is a separate criminal case brought by the state), but rather has to pay money to the plaintiff if he is found responsible for the wrong committed.
     
  10. Renee J
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    Renee J Contributing Member

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    I might be wrong. But I thought if you had to turn a doorknob, it is considered breaking and entering. If the door is ajar, it is not. It didn't matter if the door is locked or not.
     
  11. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    Yep; that's what I got on a quick search. Even if you just have to push the un-latched door to make it open further, it's breaking and entering.
     
  12. Pheonix
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    Pheonix A Singer of Space Operas and The Fourth Mod of RP Staff Contributor

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    I had been researching Breaking and Entering laws for a story not too long ago... They vary a lot by state. I believe that some states consider any form of breaking and entering Burglary and its counted as a felony. In other states it depends on what was done after the trespassing that determines the seriousness, misdemeanor or felony.
     
  13. chicagoliz
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    chicagoliz Contributing Member Contributor

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    At common law, burglary had to be committed during the nighttime. There are a lot of other particular elements that apply to various crimes. The best bet, when dealing with a crime, or specifically a criminal prosecution in a story, is to look into the actual statutes and case law in the particular jurisdiction where your story takes place. Not only are they different in different states, but they can change over time. I haven't studied criminal law since I took the bar exam almost twenty years ago, so there are a lot of changes that have happened and specifics I don't recall. This is another example of where it is so important to do actual research.

    There are even seminars and conferences that exist for writers of crime fiction, where real prosecutors and police offer information about what happens. It's not an area to treat lightly. If the criminal prosecution is important to the story, it is vital to have a good handle on what might actually happen -- way more than just from a cursory web search or query to a writing board.
     
  14. Leigh Silvester
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    Leigh Silvester Member

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    Thanks for the responses so far.

    I should have mentioned that the jurisdiction is England & Wales.
    Absolutely no suggestions or threats of violence, burglary or breaking and entering. How the individual came to be there becomes significant later. There is no damage to the property and no evidence that any entrances were used.

    The torts of the various trespasses, as I understand them, usually hinge on particular acts, IE whether there was a deprivation of rights of control, access, freedom of movement plus various physical assaults etc. The trespass of land is certainly applicable, but not one that police would get involved with.

    Would be simpler if it was in US, then 'Home Invasion' would be an easy charge.

    In English law, for burglary to be proved there must be an element of intent. This is not present in this scenario.
    In a case where some guy entered a house to smoke cannabis with his friends, a legal opinion held that:
    "If there is no evidence he intended to steal, cause GBH or criminal damage though then they will not maintain a charge of burglary."

    I am struggling, as I thought I would (which is good for the story), to find a charge under criminal law (rather than tort) which could apply in this scenario.

    Please someone, prove me wrong.
     
  15. osu45d
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    osu45d Member

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    trespassing would be the main one, if they have ill intent it would be burglery "illegal entry of a building with intent to commit a crime, especially theft."
     

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