Violent Offense Exception

Violent Offense Exception

Everything covered so far in this chapter assumes that a defendant who proves entrapment is acquitted. The Code qualifies that promise in its own wording, because the acquittal rule of § 2.13(2) begins with the phrase "Except as provided in Subsection (3) of this Section."¹ Subsection (3) then removes one category of case from the defense entirely. The defense is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.² The text sets two conditions that must both be met, and the second turns on who the injured or threatened person is.

The first step looks at how the legislature defined the offense, so what counts is what the statute makes an element, and the way the encounter happened to unfold does not settle it. An assault or battery charge has injury or the threat of it built into its definition, while a charge of selling drugs does not, even if a particular sale turns ugly. The fourth step borrows its vocabulary from § 2.13(1), which says that the person who perpetrates an entrapment is a public law enforcement official or a person acting in cooperation with one.³ An informant working with the police therefore counts as an entrapper, and an informant who is the one injured or threatened does not trigger the bar. If either of the first two steps fails, or if the person endangered is the entrapper, Subsection (3) never engages and the ordinary rules of § 2.13(1) and (2) govern.

The reason for the exception comes from the structure of the defense itself. Entrapment exists to stop the government from manufacturing crime, and its remedy is acquittal of the person the government drew in.⁴ That remedy fits the typical setting in which police create opportunities for offenses such as drug sales, prostitution, and gambling, where the only parties on the other side of the transaction are participants.⁵ A crime that consists of injuring or threatening another person is different, because a third party who had no part in the inducement bears the harm. Acquitting the defendant would leave that person's injury unanswered and would let the government's conduct excuse harm to someone who never took part in the arrangement. When the person endangered is the entrapper, that concern disappears, because the party who set the trap is the one exposed to the danger and no outsider is left unprotected. The same intuition appears in discussions of how far undercover work may go: "It would be unthinkable, for example, to permit government agents to instigate robberies and beatings merely to gather evidence to convict other members of a gang of hoodlums."⁶

In the examples below, saying that the exception applies means that the defense is barred, and saying that it does not apply means that the ordinary entrapment analysis goes forward.

Those two scenarios share the same offense element and the same inducer. The only change is the identity of the person endangered, and that single fact decides whether the defense survives. The exception also stays dormant in the far more common case where the offense has no injury element at all.

The Code is not alone in treating violence differently. Some courts refuse to allow the entrapment defense where the crime involves violence, and other statutes also bar it where the conduct causes or threatens bodily injury to an innocent person.⁹ Within the Code, there is no reported litigation under Subsection (3).¹⁰ An answer on this point therefore has to rest on the text, applying the steps above to the offense charged and the identity of the person endangered. Students lose points in two directions. They bar the defense whenever a fact pattern sounds violent, and they overlook that the exception turns on the victim, so that the same offense can fall inside or outside it depending on whether the person endangered was the entrapper.