Forget What I Said About Mens Rea

It has long been a principle of criminal law that criminal liability requires mens rea, “guilt mind” or intent to commit a wrongful act. That’s what we teach in Introduction to Law.  The insanity defense is premised on the defendant’s lack of mens rea, his inability to understand the consequences of his actions or that his act was wrong.  It is Criminal Law 101.

Except the United States Congress did not get the memo.  The Wall Street Journal reported recently (As Federal Crime List Grows, Threshold of Guilt Declines) that “Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent.”  The article relates the following tale:

When the police came to Wade Martin’s home in Sitka, Alaska, in 2003, he says he had no idea why. Under an exemption to the Marine Mammal Protection Act, coastal Native Alaskans such as Mr. Martin are allowed to trap and hunt species that others can’t. That included the 10 sea otters he had recently sold for $50 apiece.  Mr. Martin, 50 years old, readily admitted making the sale. “Then, they told me the buyer wasn’t a native,” he recalls.

The law requires that animals sold to non-Native Alaskans be converted into handicrafts. He knew the law, Mr. Martin said, and he had thought the buyer was Native Alaskan.

He pleaded guilty in 2008. The government didn’t have to prove he knew his conduct was illegal, his lawyer told him. They merely had to show he had made the sale.

In other words the law imposed strict liability:  commit the act the statute defines as criminal (the actus reus for those who remember back to our discussion of criminal law four weeks ago) and you are guilty.

This is not a crazy idea in theory.  I was taught “ignorance of the law is no excuse.” The Journal notes “that principle made sense when there were fewer criminal laws, like murder, and most people could be expected to know them.  But according to University of Virginia law professor Anne  Coughlin, when “legislators ‘criminalize everything under the sun, it’s unrealistic to expect citizens to be fully informed about the penal code.'” With reduced intent requirements “suddenly it opens a whole lot of people to being potential violators.”

The problem is the intersection between proliferating federal criminal statutes–“there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s”–and lesser mens req requirements: “more than 40% of nonviolent offenses created or amended during two recent Congresses—the 109th and the 111th, the latter of which ran through last year—had ‘weak’ mens rea requirements at best.”

Perhaps the moral is don’t leave home without the United States Code and the Code of Federal Regulations.