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The Model Penal Code provides that "unless the kind of culpability sufficient to establish a material element of an offense has been prescribed by law, it is established if a person acted purposely, knowingly or recklessly with respect thereto. This accepts as the basic norm what usually is regarded as the common law position. More importantly, it represents the most convenient norm for drafting purposes. When purpose or knowledge is required, it is conventional to be explicit. And since negligence is an exceptional basis of liability, it should be excluded as a basis unless explicitly prescribed..."

What about Recklessness? Anyone know?

And the italicized part of the paragraph is horribly, horribly, written. Taken by itself, it doesn't tell you ANYTHING. And there is no immediate segue to explain the "how" of "it is established if..."

under the MPC if the statutes is silent p,k,or r will work. the pros. only needs to prove that the def. acted recklessly with regard to the pertinent elements.

nick637 wrote:under the MPC if the statutes is silent p,k,or r will work. the pros. only needs to prove that the def. acted recklessly with regard to the pertinent elements.

Right. Compare:
"anyone who knowingly causes the genes of a pig to be mixed with the genes of a cow shall be guilty of a genetic tampering"

with

"anyone who causes the genes of a pig to be mixed with the genes of a cow shall be guilty of a genetic tampering"

The first establishes that knowing is the required mens rea for the element of mixing, the latter is silent so under the MPC reckless or greater will fulfill the mens rea requirement for that element/

I've got a buzz so this might not be as clear as it seems in my head.... it's easy (coming from me, that means something), think of reckless as the default. It is your baseline. You know why neg is out, so the lowest possible is recklessness. Unless the statute has knowingly or purposely language, it is reckless. I imagined a three rung ladder that required effort to climb... culpability *needs* more/extra get to the higher rung.

Ahhh, totally unclear, but it might make some sense.

Interesting. Thanks for the input, my Learned Brothers.

And if your crim professor has said anything at all about how your home Jx differs from the MPC, be sure to note those distinctions throughout your outline.

do any states actually follow this part of the MPC? seems like strict liability is still accepted everywhere

Strict liability depends on the offense.

My impression (from class, at least) is that strict liability is generally accepted in a couple narrow areas: when the protection of children is involved (e.g., statutory rape laws), and in product regulation (e.g., pharmaceutical labeling laws). Beyond that, if you're in a MPC jurisdiction, you won't find much strict liability when it isn't specified in the statute.

Borhas wrote:do any states actually follow this part of the MPC? seems like strict liability is still accepted everywhere

If by follow you mean adopt, yea...it's part of, if I recall correctly, 30+ states. Strict liability?
(a) Compels a minor by threat or force to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance;

clintonius wrote:...protection of children is involved (e.g., statutory rape laws), and in product regulation (e.g., pharmaceutical labeling laws).

I like the malum in se and malum prohibitum distinction with strict liability.

It's followed in areas that are about public safety. For instance, carrying a loaded gun around. Most states don't care if you know it's loaded or not. You aren't allowed to carry a loaded gun around as a matter of public safety. Period. Knowledge, intent, whatever, doesn't matter.

inchoate_con wrote:

clintonius wrote:...protection of children is involved (e.g., statutory rape laws), and in product regulation (e.g., pharmaceutical labeling laws).

I like the malum in se and malum prohibitum distinction with strict liability.

Can you elaborate? I'm not sure I follow w/r/t strict liability.

kalvano wrote:Strict liability depends on the offense.

well obviously

what I'm saying is that some criminal statutes don't include ANY mens rea requirement and that's not interpreted to mean reckless+ it's interpreted to mean strict liability aka no mens rea req (though really there's always some nominal mens rea req according to SCOTUS).

example: statutory rape

would an MPC state like NY have reckless+ requirement for statutory rape and every other criminal statute without mens rea spelled out, or would statutory rape just be the special exception (along with other random regulations?

Can you elaborate? I'm not sure I follow w/r/t strict liability.

bad in itself/bad because it's prohibited

the text book throws those words around but the legislatures seem to think even strict liability prohibited acts are bad in themselves... they just don't want those acts to have the requirement so they are easier to prosecute.

It's my understanding that unless the statute specifically does away with a mens rea requirement, the courts will generally find that they presumed one when writing the statute, and are reluctant to find otherwise.

Borhas wrote:

Can you elaborate? I'm not sure I follow w/r/t strict liability.

bad in itself/bad because it's prohibited

the text book throws those words around but the legislatures seem to think even strict liability prohibited acts are bad in themselves... they just don't want those acts to have the requirement so they are easier to prosecute.

I might misunderstand, but I don't think that's exactly the case. Take statutory rape, for example. If you're under the impression that you are having sex with another consenting adult of legal age, and you're wrong, your act (having sex) wasn't bad in and of itself, but you're still going to get the full brunt of the law. Like I said, I might misunderstand, so clarification is always welcome.

kalvano wrote:It's my understanding that unless the statute specifically does away with a mens rea requirement, the courts will generally find that they presumed one when writing the statute, and are reluctant to find otherwise.

Generally true, and I think it's always supposed to apply in MPC jurisdictions (and under the MPC, if something is statutorily defined as strict liability, it can only be a "violation," not a "crime"). In practice it tends to apply to any crime that has required a mens rea element since time immemorial -- larceny, etc. Newer public safety laws, like the abovementioned pharmaceutical labeling laws or drug sale licensing laws, are often deemed not to be bound by mens rea requirements. And there are statutory rape, gun possession, and other laws which courts tend to treat as strict liability when the statute is silent on mens rea.

Malum in se and malum prohibitum aren't a basis for strict liability, really.

They are broad classifications of crimes as either crimes that are bad in and of themselves, such as rape or murder, or crimes that society deems wrong, such as speeding or wearing an offensive t-shirt.

Murder is going to be classed as wrong in almost every civilized society. You can't just walk up and shoot someone in the head for no reason.

However, while seeing bewbies on TV might be a no-no in America, in Germany, no one cares.

I might misunderstand, but I don't think that's exactly the case. Take statutory rape, for example. If you're under the impression that you are having sex with another consenting adult of legal age, and you're wrong, your act (having sex) wasn't bad in and of itself, but you're still going to get the full brunt of the law. Like I said, I might misunderstand, so clarification is always welcome.

well... I don't know how the idea really came about... it sounds stupid to me because the idea of a crime not being bad in itself is fucking retarded. It's also inconsistently applied (surprise!)

I know SCOTUS has held that strict liability still requires some mens rea in cases where the law is really complicated... like if you fail to file your tax return sometimes you won't be liable if you mistakenly believed that you don't qualify under a particular section of the law (example: I know that it was the law, but I didn't know wages are income...saying I didn't know it was illegal wouldn't be an excusable mistake though)... however I'm not sure if that sort of mistake of law applies to statutory rape cases... not saying it doesn't, but strict liability seems to require reasonable diligence beyond merely assuming someone was of age (or even just asking).

either way, strict liability is dumb... sometimes it seems to criminalize even reasonable conduct, other times (like Wesley Snipes tax mistake) it is excused because of a lack of knowing that what was known fell under whatever element's required in the offense, to the point that even negligent conduct could be excused.

I really wish someone could clear this up here, cause it's confusing me

Borhas wrote:I know SCOTUS has held that strict liability still requires some mens rea in cases where the law is really complicated... like if you fail to file your tax return sometimes you won't be liable if you mistakenly believed that you don't qualify under a particular section of the law (example: I know that it was the law, but I didn't know wages are income...saying I didn't know it was illegal wouldn't be an excusable mistake though)... however I'm not sure if that sort of mistake of law applies to statutory rape cases... not saying it doesn't, but strict liability seems to require reasonable diligence beyond merely assuming someone was of age (or even just asking).

Ok, I think this is where you're confused: strict liability by definition does not require mens rea. You're also getting into mistake of law, which comes into play w/ tax stuff (and also some handgun stuff, at least in my case book) and occasionally merges with strict liability, but is itself a separate issue. I'm not sure what you mean about strict liability requiring diligence. The idea of strict liability is that, regardless of how diligent you were, if you factually committed the violation, you're guilty, regardless of how careful you were.

Borhas wrote:would an MPC state like NY have reckless+ requirement for statutory rape and every other criminal statute without mens rea spelled out, or would statutory rape just be the special exception (along with other random regulations?

My recollection from Crim Law is that the NY code specifies the culpability required for offenses where it is not explicitly defined is the "minimum level that the offense necessarily involves" -- so offenses like statutory rape are strict liability without specifying a culpability requirement.

clintonius wrote:

Borhas wrote:I know SCOTUS has held that strict liability still requires some mens rea in cases where the law is really complicated... like if you fail to file your tax return sometimes you won't be liable if you mistakenly believed that you don't qualify under a particular section of the law (example: I know that it was the law, but I didn't know wages are income...saying I didn't know it was illegal wouldn't be an excusable mistake though)... however I'm not sure if that sort of mistake of law applies to statutory rape cases... not saying it doesn't, but strict liability seems to require reasonable diligence beyond merely assuming someone was of age (or even just asking).

Ok, I think this is where you're confused: strict liability by definition does not require mens rea. You're also getting into mistake of law, which comes into play w/ tax stuff (and also some handgun stuff, at least in my case book) and occasionally merges with strict liability, but is itself a separate issue. I'm not sure what you mean about strict liability requiring diligence. The idea of strict liability is that, regardless of how diligent you were, if you factually committed the violation, you're guilty, regardless of how careful you were.

Thanks for clearing up the mistake D and strict liability stuff in the tax case there was still a mens rea requirement now that I look back

But SCOTUS has put some basic limitations on strict liability like the case that overturned a crime statute that required felons to register in LA that actually had a successful mistake of law D (and I think a machine gun case too). I think the impossibility defense is a limit on corporate strict liability as well, and that means that in a case where the CEO is strictly liable for some health code violation or something like that he could still use the impossibility defense to get out of it... because in its essence strict liability just seems to push the threshold of mens rea below negligence and into conduct that is actually reasonable, but not quite diligent enough to escape liability.

Hm, we haven't gotten to anything re: impossibility, but I am familiar w/ the LA case and the machine gun one (was that Staples?). Are you also using the Kadish book?

Oh, apparently the one about the LA registry probably wouldn't hold at this point. At least that's what our prof said. She also gave us some juicy tidbits about Justice Douglas's many scandals. That's definitely worth googling.

Pizon wrote:

Borhas wrote:would an MPC state like NY have reckless+ requirement for statutory rape and every other criminal statute without mens rea spelled out, or would statutory rape just be the special exception (along with other random regulations?

My recollection from Crim Law is that the NY code specifies the culpability required for offenses where it is not explicitly defined is the "minimum level that the offense necessarily involves" -- so offenses like statutory rape are strict liability without specifying a culpability requirement.

oh I see, so as long as it's got a common law history of strict liability then MPC doesn't bring it up to reckless, I think I get it now thanks.

Hm, we haven't gotten to anything re: impossibility, but I am familiar w/ the LA case and the machine gun one (was that Staples?). Are you also using the Kadish book?

nah it's Saltzburg, Diamond, et al but the case I'm referring to is US v. Park (1975) (CEO found criminally liable for health code violation under strict liability, but majority opinion included a part about how impossibility could still be a defense)

kalvano wrote:Malum in se and malum prohibitum aren't a basis for strict liability, really.

They are broad classifications of crimes as either crimes that are bad in and of themselves, such as rape or murder, or crimes that society deems wrong, such as speeding or wearing an offensive t-shirt.

Murder is going to be classed as wrong in almost every civilized society. You can't just walk up and shoot someone in the head for no reason.

However, while seeing bewbies on TV might be a no-no in America, in Germany, no one cares.

Correct, I was not clear. For some unknown reason, the two phrases helped me understand the difference. Classifying a crime as either malum prohibitum or malum in se was how I worked through strict liability and culpability issues. Like your example, I often thought of driving offenses in a linear fashion: 10 mph strict liability, 40 mph liability changes, intent is considered, neg driving, etc.. then start add facts. Anyhow, I certainly don't want to lead someone down the wrong path.