Mens Rea

An IllAdvised view of Strict Liability and other Mens Rea violations

So, Russ challenged me to state 12 laws that I would eliminate. Now, a dedicated reader of these posts would have already found thousands, but let me be very specific. I will eliminate not 12 laws, but 12 thousand laws. I would eliminate all laws on every level which do not require mens rea.

The wikipedia, in its discussion of mens rea, says, “The standard common law test of criminal liability is expressed in the Latin phrase actus reus non facit reum nisi mens sit rea, i.e. "the act is not culpable unless the mind is guilty".As a general rule, someone who acted without mental fault is not liable in criminal law.Exceptions are known as strict liability crimes.Moreover, when a person intends a harm, but as a result of bad aim or other cause the intent is transferred from an intended victim to an unintended victim, the case is considered to be a matter of transferred intent.”

To put it another way, as I discussed in my post ‘Ignorance of the Law’, I believe that the only things that should be crimes are those that one knew, or should have known, were crimes.

Let us take an example from a particuarly bad part of law. The LII states, in discussing ‘strict liability’ (a crime without mens rea): “for example, being in possession of drugs will typically result in criminal liability, regardless of whether the defendant knows that he is in possession of the drugs).”

Think about that for a minute. So if someone else puts something in your car, or you are borrowing his car, and you fail to search the car before you start driving, you can end up being accused of, and convicted of, breaking a possession law despite having no idea you possessed anything!

One of the most egregious modern examples, at least the ones that made the press, was a man snowmobiling, caught in a blizzard, got lost (see ‘caught in a blizzard’ above), left his snowmobile behind, finally made his way to shelter… and was accused *and convicted* of driving his snowmobile in a wilderness area.

This should never, ever, be. And this would eliminate thousands of potential crimes. Not precisely by eliminating the law itself, but by eliminating the law *as applied* to these people.

This is a huge subject, and would have profound implications on our society. But I hope I have fulfilled  Russ’s requirement.

If he is not content then I have another article waiting…

(Oh, and by the way, this is another area where a proper understanding of the jury would have prevented any such conviction. One cannot believe that a jury, properly instructed, would have found him guilty.)

https://www.law.cornell.edu/wex/strict_liability

https://fee.org/articles/does-criminal-intent-matter-anymore/