Model Penal Code Robbery

The common-law elements covered so far treat robbery as larceny plus two aggravators, a taking from the person or immediate presence of the victim and a taking by force or intimidation, with a separate timing rule asking whether the force was used to obtain possession or to retain it immediately afterward. The Model Penal Code is built on a different frame. It starts with a theft and then asks whether the actor, in the course of committing a theft, did one of three things that supply the violence. Because the Code defines the offense through the theft and the violence alone, its text contains no separate requirement that the property come from the victim's body or immediate presence. The question that gets its own element at common law is absorbed into the broader inquiry about what injury, threat, or coercion accompanied the theft.

The Code's three routes to the violence requirement are alternatives, so proof of any one of them completes the element:

The actor inflicts serious bodily injury on another.
The actor threatens another with, or purposely puts the other in fear of, immediate serious bodily injury.
The actor commits or threatens immediately to commit any felony of the first or second degree.

The routes differ in what they measure. The first looks to harm actually done, so it requires a real injury, and a threat alone will not satisfy it. The second looks to danger created, and it is met by an immediate threat or by purposely putting the victim in fear, even if no one is touched. The third looks to coercion by a threatened serious felony, which can reach a threat the second route would miss because the harm threatened is something other than bodily injury. Each route carries its own limits, and the structure of the list explains why the Code needs all three: a thief can overcome a victim's will by hurting the victim, by creating an immediate danger of serious harm, or by holding a serious crime over the victim's head.

Because the Model Penal Code is a template for legislatures, a jurisdiction may adopt it in whole, adopt only parts of it, or write its robbery statute some other way. A footnote in a Supreme Court survey of assisted-suicide laws shows the gap that can result, since it sets the Code's version of that offense beside a differently worded state enactment.¹ On an exam, the governing law named in the problem decides which formulation applies: a stem that invokes the Code calls for the lead-in and the three routes, and a stem set in a common-law jurisdiction calls for presence, force or intimidation, and timing. The subsections below begin with the lead-in phrase, then take each route in turn, and finish with the grading rule.

In the Course of a Theft

The Model Penal Code opens its robbery provision with a lead-in that fixes what the offense is built on: a person is guilty of robbery if, "in the course of committing a theft," the person goes on to inflict, threaten, or coerce in one of the three ways the Code lists.² Theft is the foundation, and the violence is added to it. The common law builds on larceny in a similar way, but it describes robbery as larceny plus two aggravating circumstances, a taking from the person or presence of another and a taking accomplished by force or by putting the victim in fear of injury.³ The Code's lead-in has no counterpart to the presence aggravator and says nothing about a taking, and the point-by-point comparison comes in a later section of this chapter. For now the lead-in poses two threshold questions: whether any theft is in the picture, and whether the violence happened while that theft was under way.

Using theft as the foundation makes more sense once you see what the Code means by the word. The Code collapses larceny, embezzlement, and false pretenses into a single offense of theft, committed by unlawfully taking or exercising unlawful control over property, and it drops any separate requirement of a taking or carrying away.⁴ A robbery provision tied to that offense inherits its breadth, so a prosecutor does not have to fit the property side of the case into a common-law category before reaching the violence. The same link carries the mental state. Because the Code differentiates robbery from theft only by requiring the use or threat of force, robbery and theft share the same requirement of criminal intent, and most state statutes likewise treat robbery as a specific-intent offense.⁵ The intent question is therefore answered on the theft side. The Code asks nothing more of the actor's intent about the property than theft itself asks, and its theft offense is framed around depriving the owner of economic value rather than around the common-law demand for an intent to deprive permanently.⁶

The Code then says when an act counts as being in the course of committing a theft: an act does so if it occurs in an attempt to commit theft or in flight after the attempt or commission.⁷ That definition opens three windows in which the violence can fall, namely during an unsuccessful or interrupted attempt, during the theft itself, and during flight after either. The reason is functional. The danger robbery addresses arises whenever violence accompanies a theft effort, and the victim faces the same peril whether the thief is still reaching for the property, is leaving with it, or has failed to get it and is running. The definition also removes a technical defense. If robbery required a completed theft, a defendant whose grab failed could argue that no theft had occurred and so no robbery had occurred, and the argument would turn on when a taking is complete instead of on the harm done to the victim. Naming attempts and flight in the text takes that argument away.

This definition departs from the common-law frame in a way the first twin shows. Because common-law robbery rests on larceny, a thief whose grab fails and who takes nothing has not completed the offense, while the Code reaches the failed attempt directly. New Jersey's robbery statute uses the same lead-in and extends it to immediate flight after an attempted or completed theft, and in State v. Mejia the New Jersey Supreme Court observed that by defining the course of a theft that way the Legislature broadened the common-law definition of robbery.⁸

The lead-in also sets a limit, and it explains the second twin. Violence qualifies only if it occurs in the course of a theft, so an act of violence with no theft attempted, committed, or fled from falls outside the provision however serious it is. Tying the violence to a theft is what makes robbery a property crime aggravated by force, and without that tie robbery would swallow every violent encounter that the assault offenses already cover. The flight clause has an edge as well. It reaches flight after the attempt or commission, so violence that comes after the flight is over, such as a quarrel days later, is no longer part of the course of the theft, and New Jersey's use of the word "immediate" makes that edge explicit.⁹ Students go wrong in two directions here. Some demand a completed theft, which overlooks the attempt and flight language, and others treat violence with no theft behind it as robbery, which overlooks the lead-in itself.

Inflicting Serious Bodily Injury

The first of the Model Penal Code's three routes to robbery measures a result. Once the lead-in is satisfied, meaning the conduct occurred in the course of committing a theft, the actor is guilty of robbery if the actor "inflicts serious bodily injury upon another."¹¹ That short phrase contains two separate requirements. The verb requires that an injury actually be inflicted, and the adjective requires that the injury be serious. Each requirement narrows the route for its own reason, and a comparison with broader statutes shows how much work each one does.

Begin with the verb. To inflict an injury is to cause it, so this route is closed to a prosecutor who can prove only that the actor threatened harm, brandished a weapon, or swung and missed. The Code gives threats their own route, taken up in the next subsection, which leaves this one to measure harm that has actually been done. That division explains why the first route is the simplest to prove when it applies. A threat has to be proved through what the actor said or did and how immediate the danger was, but an injury that has already occurred requires no such inquiry, because the harm to the person is a completed fact. A thief who beats the victim and breaks the victim's jaw has done the very thing the robbery label exists to punish, and nothing about the victim's state of mind needs to be shown.

Now the adjective. The injury must be serious, which reserves this route for the grave end of violence and leaves minor contact to lesser offenses. The mechanism is easiest to see by imagining the line drawn lower. If any bodily injury or any touching sufficed, nearly every pickpocketing or purse-snatching that involved a brush against the victim would become robbery, and the difference between theft and robbery would turn on incidental contact instead of on harm that justifies the heavier label. Requiring serious injury keeps robbery tied to violence that is grave in itself, so that a bruise, a scrape, or a jostle remains a matter for the lesser offenses. Whether a given injury is serious is a question of degree, and a broken jaw is a clear example.

A legislature can draw this line elsewhere, and the contrast sharpens the Code's choice. New Jersey's robbery statute uses the same in-the-course-of-a-theft lead-in, but its first alternative is satisfied by inflicting bodily injury or by using force upon another, with no requirement that the injury be serious.¹² In State v. Mejia the New Jersey Supreme Court explained that the force required, although less than an assault demands, can satisfy that alternative, and that the language about using force reaches situations with neither a threat nor an injury, such as the blindside muggings typical of purse-snatchings.¹³ The shove from the hypothetical, which falls short of the Code's first route, would therefore ordinarily fall within a statute written that way. The Code ties this route to a result severe enough that the harm itself justifies the label, while the broader statute ties it to the use of force and so sweeps in the sudden grab.

On an exam governed by the Code, test the first route with two questions about the injury itself. The first is whether an injury was actually inflicted, because words, a displayed weapon, or an attempted blow that misses will not satisfy it, and students lose this prong when they treat a threat as though it inflicted an injury. The second is whether the injury is serious, because bruises, scrapes, and a shove that leaves no lasting harm fall short. A problem set in a state whose statute reaches any bodily injury or any force changes the second question, so check the named jurisdiction before applying the Code's stricter wording.

Threatening Serious Bodily Injury

The second route of the Model Penal Code's robbery provision measures danger instead of harm. Once the lead-in is satisfied, so that the conduct occurred in the course of committing a theft, the actor is guilty of robbery if the actor "threatens another with or purposely puts him in fear of immediate serious bodily injury."¹⁵ Unlike the first route, this one requires no injury at all, and the reason lies in what a threat accomplishes. A victim who hands over a wallet because a gun is pointed at the victim has lost the property to coercion just as surely as one who was beaten into surrender, and the confrontation could have ended in serious injury at any moment. The route treats the two situations alike, so a thief who succeeds through menace alone gains nothing by leaving the weapon unused.

The text offers two ways to satisfy the route, and they differ in what the prosecution must show about the actor. The first is that the actor threatens the victim with immediate serious bodily injury, which a spoken demand, a gesture, or a displayed weapon can communicate. The second is that the actor purposely puts the victim in fear of that injury, which reaches a case where no express threat was made but the actor's conduct was aimed at producing fear. The word "purposely" attaches to this second alternative, and it does real work. Fear lives in the victim's mind, and a nervous victim may be frightened by conduct the actor never meant to intimidate anyone with. Requiring the actor's purpose ties the heavier label to a choice to use fear as the instrument of the theft instead of to the victim's private reaction to an innocent act.

Two qualifiers on the harm itself limit the route, and each has its own reason. The harm must be immediate, meaning at hand when the property is taken. An immediate threat leaves the victim no time to summon help, retreat, or call for the police, which is what makes surrender the only practical choice. A threat of harm weeks away leaves those options open, so the coercion is weaker and the Code leaves such a threat to other offenses. The harm must also be serious bodily injury, the same grave level the first route demands. If a threat to slap or shove sufficed, any theft accompanied by a rude remark could become robbery, and the offense would lose its tie to violence that is grave in itself.

The bodily-injury limit excludes coercion that is effective but aimed at something other than the victim's body.

On an exam governed by the Code, test this route with two questions. The first is whether the actor threatened, or purposely put the victim in fear of, injury to the body, and whether that injury would be serious. The second is whether the danger was immediate. Students lose this prong when they treat a threat of harm to come later as though it were an immediate one, so check the timing of the threatened harm before applying the route.

Threatening a Serious Felony

The third route of the Model Penal Code's robbery provision looks at the grade of the wrongdoing the actor commits or threatens, rather than at the bodily harm it would cause. Once the lead-in is satisfied, so that the conduct occurred in the course of committing a theft, the actor is guilty of robbery if the actor "commits or threatens immediately to commit any felony of the first or second degree."¹⁷ This wording covers a situation the second route can miss. A thief may frame the demand around a serious offense instead of around injury to the victim's body, and a threat framed that way may not fit the second route's text about serious bodily injury. The third route closes the gap by describing the danger through the seriousness of the offense threatened.

The reason for the route is that the risk of a violent confrontation does not depend on the particular words the actor chooses. A victim told that a grave felony is about to be committed has the same practical reason to surrender the property as a victim told of imminent bodily injury, since either announcement signals that the encounter may turn dangerous at once. Without this route, the robbery label could turn on the thief's phrasing. An actor who knew the second route's wording could put the demand in terms of the offense, avoid the heavier charge, and still produce exactly the same coercion. Tying the route to the grade of the felony removes that advantage and keeps attention on the seriousness of what the victim is made to fear.

The text names two ways to satisfy the route: the actor commits a felony of the required grade, or the actor threatens immediately to commit one. The commission alternative follows from the threat alternative. If an announced first- or second-degree felony would coerce the victim, the felony itself, carried out in the course of the theft, is the completed form of the same danger, and the Code does not demand a separate threat on top of it. The word "immediately" appears in the threat alternative, which makes sense because a threat is the only alternative whose danger lies in the future and so needs a time limit. A felony actually being committed in the course of the theft is already underway.

Two limits keep the route from expanding without end, and each has its own reason. The first is the grade. The felony must be of the first or second degree, so a threat of a misdemeanor, or of a felony of a lower degree, falls short. If any offense sufficed, a theft accompanied by a threat to commit some petty wrong would become robbery, and the offense would lose its tie to serious wrongdoing. The second limit is timing. The threat must be of an immediate felony, which leaves the victim no time to summon help and makes surrender the only practical response. A threat of a serious felony at some later time leaves room to seek protection, so the coercion is weaker and the Code leaves that threat to other offenses.

Hypothetical Illustration

During a theft, a defendant tells the victim that unless the victim hands over a bag, the defendant will at once commit a felony of the first or second degree against the victim. The victim complies. The threat was made in the course of a theft, it concerns a felony of the required grade, and it was to be carried out immediately, so the third route is met even though the defendant never spoke of injury.

Change the grade. In the same setting, the defendant threatens to commit a misdemeanor, or a felony of the third degree, unless the victim hands over the bag. The threat is immediate, but the offense threatened is below the required grade, so this route is not met on these facts.

Change the timing instead. The defendant threatens to commit a first-degree felony against the victim next month unless the victim hands over the bag. The offense is of the required grade, but the threat is not of an immediate felony, so this route is not met either.

On an exam governed by the Code, test this route with three questions. The first is whether the conduct occurred in the course of a theft, because the lead-in applies to every route. The second is whether the actor committed or threatened a felony, and whether it was of the first or second degree, which a problem will usually signal by stating the grade or describing a grave offense. The third is whether the threatened felony was immediate. Students lose this prong when they treat any threatened crime as enough, so confirm both the grade and the timing before applying it. The routes can overlap, since a threat of immediate serious bodily injury may also be a threat of a grave felony, and when the facts satisfy the second route the analysis need not go further. The third route does its own work when the threat is framed through the offense instead of through injury to the body.

Grading Under the Model Code

The three routes examined above decide whether conduct is robbery at all. Once that question is answered yes, a second one remains, which is how severely the offense is graded. The Model Penal Code answers in a single short subsection: robbery is a felony of the second degree, but it rises to a felony of the first degree if, in the course of committing the theft, the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury.¹⁹ The rule therefore has a baseline and a set of aggravators. The aggravators share the lead-in that governs the definition, so only conduct occurring in the course of the theft counts toward the higher grade.

The baseline sits at the second degree because of what every robbery already involves. Whichever route supplies the offense, the actor has inflicted serious bodily injury, threatened it or purposely put the victim in fear of it, or committed or threatened a first- or second-degree felony, so even the least violent robbery carries a serious potential for harm. That potential is realistic when weapons are involved. A committee report discussed in the dissenting opinion in District of Columbia v. Heller presented statistics showing handguns used in roughly 60 percent of robberies, a figure that comes from the report and not from any holding of the Court.²⁰ In Terry v. Ohio, when assessing an officer's reasonable fear that suspects were armed, the Court accepted that a daylight robbery would be likely to involve weapons.²¹ A grade that starts at the second degree thus reflects the seriousness of the confrontation the definition already requires, before any further violence is added.

The first-degree provision names three kinds of aggravating conduct, and each must occur in the course of the theft:²²

The word purposely governs both the infliction and the attempted infliction, so an injury the actor did not purposely cause does not raise the grade, although it may still matter to whether the definition's injury route is met. The attempt to kill needs no separate statement of purpose here, because the clause is aimed at an actor who is trying to end a life.

All three triggers rest on one idea: the grade follows the harm the actor purposely pursues. In an ordinary robbery, force or fear is the instrument for getting property, because the actor wants the money and uses coercion to obtain it. An actor who sets out to kill, or to inflict serious injury, has a goal beyond the property, and violence has moved from a means to an end. That added purpose is a wrong separate from the theft, and the Code answers it with the heavier grade.

The attempt language does its own work. If the higher grade required a completed result, the grade would depend on fortune: a shot that misses, a blow the victim dodges, or a wound that surgery repairs would leave one offender at the second degree while an identically motivated offender with better aim reached the first. Reaching attempts keeps attention on what the actor tried to do. The same logic explains the word anyone, which extends beyond the person robbed, so a defendant who fires at a security guard who intervenes during the theft has attempted to kill someone in the course of the theft. The attempt language also separates grading from the definition. The first route to robbery requires that serious injury actually be inflicted, and a swing that misses cannot satisfy it, yet the grading clause reaches the missed swing, so a robbery proved by an immediate threat becomes first degree if the actor, in the course of it, purposely tries to inflict serious injury and fails.²³

Students most often go wrong by treating the definition's threat route as though it were the grading clause's attempt language. A displayed gun and a demand communicate an immediate threat of serious injury, which is what makes the offense robbery, but an actor who only displays the weapon has made a threat, and a threat is not among the listed aggravators. The grading question is lost when a student treats a threat to injure as though it were an attempt to injure. The inquiry is whether the actor moved from menace to conduct aimed at killing or seriously injuring someone.