Strict Liability - Historical Reasons For Development, Sentencing Factors V. Elements, Arguments For Strict Criminal Liability, Criminalizing V. Grading

Although there is some dispute as to whether Anglo-American criminal law has always required the state to prove that the defendant had a culpable mental state for every element of an offense, there is general consensus that, except for the rule that ignorance of the law is no excuse and the felony murder doctrine, such a mental state has been required for criminal liability over the last few centuries. In the middle of the nineteenth century, however, both American and English courts began interpreting newly coined statutes that did not specify a mens rea as to one or more elements as dispensing with this bedrock requirement (Husak; Sayre; Singer). The practice has been criticized by commentators almost unanimously, and there is some reason to believe it is on the wane. Nevertheless, it is still highly controversial.

The paradigmatic case of strict criminal liability is where a totally innocent actor (Joan) possesses, sells, or transports a white powder that she honestly and reasonably believes to be salt but that turns out to be cocaine. If she is held criminally responsible for possessing cocaine, she is said to be held "strictly liable." Most cases of "strict criminal liability" involve instances where the defendant has made a mistake with regard to an attendant circumstance (fact) of the crime.

Strict criminal liability is often confused with vicarious liability, with which it may overlap. Thus, if A, B's employee, knowingly serves liquor to a minor, and B is held liable, B is vicariously liable, but not strictly liable, since someone for whom he is held responsible acted with mens rea. If, however, A did not know his customer was a minor, and is nevertheless held liable, A is strictly liable. And if B is held liable as well, he is now vicariously and strictly liable. Many of the early cases understood to impose strict liability actually involved vicarious liability.