Strict Liability

The legal positivism of the nineteenth century has been at least mitigated by two twentieth-century phenomena: (1) judicial activism; (2) a legal realism about the ways in which legislation is passed. The deference that courts gave legislatures has been substantially reduced in favor of protection of autonomy and privacy. Moreover, the nineteenth-century judicial assumption that an absence of a mens rea word in a statute was intentional has been replaced by a recognition that legislatures are far too busy to sustain such a presumption, and that the long-lived requirement of mens rea should be followed unless the legislature clearly and explicitly rejects it. Such a view, moreover, simply places with the legislature the power—and responsibility—of speaking clearly when imposing criminal sanctions.

The Model Penal Code. The Model Penal Code expressly rejects the general notion of strict criminal liability. In § 2.05, which specifically aims at strict liability, the Code precludes any liability for a "criminal offense" without a showing of mens rea with regard to each element of the crime, although it allows such liability if there is no possibility of incarceration at all. Just as importantly, the Code requires legislatures to articulate the precise mens rea required with regard to every element of every crime, and provides a series of rules of statutory interpretation to cover cases where the legislature fails to do so. Thus, the legal positivism of the nineteenth century, which was generated by statutes that did not include a mens rea word, is avoided. Finally, the Code rejects all of the "greater evil" theories outlined above. Section 2.04 expressly provides that a defendant who, believing that he commits a crime, makes a mistake as to an element is to be punished as though the facts were as he believed them to be. Thus, in the hypothetical above, John is guilty of petty theft—the crime he thought he was committing—rather than grand theft. In addition to repudiating the general doctrine of strict liability with regard to elements of a crime, the Code virtually abolishes the felony murder doctrine, and ameliorates the "ignorance of the law is no excuse" doctrine as well.

Statutory rape and other sex offenses. Perhaps because sexual mores have changed, or merely because of the recognition that articulated sexual mores did not reflect practice, a sizable number of state courts, and some state legislatures, following the lead of the Model Penal Code, have recently rejected the earlier views as to statutory rape, and have allowed a defendant's reasonable mistake as to the age of his consenting partner to be a defense in most cases.

Drug offenses. Another sea change has occurred with regard to illegal drugs. As noted above, the Supreme Court in the 1920s appeared to allow the imposition of strict criminal liability in cases involving illegal drugs. Thus, Joan, who reasonably thought she was transporting salt, could be convicted of transporting heroin, and imprisoned for years. Today, however, every state except Washington requires the prosecution to prove that the defendant knew he was involved with drugs, and even Washington allows the defendant to prove "unwitting possession" as a defense to the charge. Some courts appear to require the prosecution to prove that the defendant knew the exact amount of drugs involved, at least where the amount has a statutorily enhancing effect upon the penalty (State v. Headley, 6 Ohio St. 3d 475, 453 N.E. 2d 716 (1983); Comm v. Myers, 554 PA. 569, 722 A.2d 645 (1998)).

Supreme Court animosity. Prior to the mid 1980s, the Supreme Court's position on strict criminal liability was, at best, ambiguous. Although there was no direct holding either way, language in some of the leading cases seemed fully to endorse strict criminal liability (for example, Balint v. United States (Supr.)), while others spoke in glowing terms of the requirement of mens rea as an immovable part of American criminal and constitutional law (T.G. Morrisette v. United States, 342 U.S. 246(1952)). Inside the same opinion one could find language supporting and opposing strict criminal liability. That lack of clarity seems, however, to have dissipated. While it is always dangerous to attempt to read the tea leaves of decisions from any court, it is nevertheless reasonable to note that the Court seems to have moved substantially against strict liability. In a series of opinions beginning in the 1980s, the Court interpreted statutes dealing with regulated activities (such as federal food stamps, gun registration, tax laws and banking transactions) and sexual activities (transportation of pornographic films involving minors) so as to require mens rea as to all elements of the offense, and to require knowledge of the laws involved. Although in two of these cases the Court, in footnotes, left open the possibility of imposing strict criminal liability with regard to some actors, the general impact of these opinions is to fully embrace, at least as a matter of interpreting federal statutes, the requirement of mens rea with regard to all elements of an offense. Perhaps a paradigm example is United States vs. X-Citement Video (115 S.Ct, 464 (1994)), in which the Court interpreted a statute that made illegal the "knowing . . . transportation" . . . of a film involving the use of minors in sexually explicit conduct. All agreed that the government must show that the defendant knew he was transporting (1) a film and (2) a film showing sexual conduct; the issue was whether the government had to prove that the defendant knew that the film involved a minor. Given that the case involved both minors and sex—two categories in which strict liability had first been generated—it would not have been surprising if the Court had held that no level of mens rea had to be demonstrated. Instead, the Court read the mens rea word ("knowing") to "run through the entire statute," and proclaimed that any other reading would risk the criminalization of too many innocent persons. Indeed, in each of the cases referred to, the Court has emphasized, as a reason for imposing a mens rea requirement, the possibility of convicting the morally innocent (see Singer and Husak). Combined with recent decisions treating as an element of a crime anything that affects punishment, the Court's full endorsement of mens rea seems inexorable. While these decisions are not binding on state courts, they may nevertheless influence both those courts, and federal courts applying constitutional doctrine.