Mistake - The Traditional Approach, The Elements Approach, Problems With Mistakes Of Law, The Analytic Solution

harm culpable conduct risks

The criminal law exists to prevent various kinds of harm, and those who violate its prohibitions are usually culpable because conduct that risks or causes harm is generally culpable conduct. For various reasons, however, a wedge can be driven between culpability and the causing or risking of harm. One can cause or risk harm without being culpable, and one can be culpable without causing or risking harm.

Mistakes illustrate the gap between culpability and harm. One can cause harm because one mistakenly believes her conduct is harmless. Conversely, she can mistakenly believe her conduct is harmful and thereby act culpably but not harmfully. Put succinctly, mistakes can exculpate one who causes or risks harm and can inculpate one who acts harmlessly or even beneficially. This entry will deal exclusively with exculpatory mistakes. Inculpatory mistakes are usually dealt with under the topic of Attempted Crimes, specifically under the doctrines of Factual Impossibility and Legal Impossibility.

LARRY ALEXANDER

Additional Topics

Mistake - The Traditional Approach

Traditionally, exculpatory mistakes have been treated in Anglo-American law as follows. If one engages in the prohibited conduct by mistake (as to what conduct one is engaging in), or causes the harm the law seeks to avoid by mistake (as to the riskiness of one's conduct), then, unless the crime requires the specific intent to engage in the particular conduct or cause the harm—in whi…

Mistake - The Elements Approach

Due to the influence of the Model Penal Code (MPC), the traditional approach to exculpatory mistakes has been largely replaced by the "elements approach": a mistake exculpates if and only if it negates the mens rea (criminal mental state) that the legislature has required for the particular element of the crime. For example, if the legislature requires knowledge of X in its definitio…

Mistake - Problems With Mistakes Of Law

However, a problem surfaces at this point. Under the Model Penal Code and the approaches of most commentators, mistakes as to the meaning or existence of the criminal statute under which one is punished do not exculpate, whereas other mistakes of both law and fact may. But how is the line between these types of mistakes to be drawn? A legal positivist will regard law and its meaning as a species o…

Mistake - The Analytic Solution

Despite these problems in distinguishing mistakes of law that can exculpate from the mistakes of law that do not, the modern approach possesses the key to their solution. For the modern approach says that: (1) mistakes exculpate when they negate the mens rea required by the legislature; and (2) the legislature will be presumed not to require knowledge of the existence or meaning of the criminal la…

Mistake - Bibliography

American Law Institute. Model Penal Code: Proposed Official Draft. Philadelphia: ALI, 1962. Note. "Element Analysis in Defining Criminal Liability." Stanford Law Review 35, no. 4 (1983): 681–762. …

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