PHILOSOPHY OF LAW
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HAND-OUTS
SPRING 2003

Strict Criminal Liability

Imagine the following: a Brandeis senior admits that he has hurt a Brandeis sophomore, fully aware her harm is precisely the sort of thing that members of the Brandeis community would want him to avoid. The community would differentiate between situations in which the Brandeis senior truthfully acknowledged:

(2) I took actions that I knew would harm her, although that was not my aim."

(3) I was reckless as to whether she would be harmed; that is, I was aware that I was taking high risks that she would be harmed without any corresponding benefits to my activity."

(4) I was not aware that I was risking harm, but a reasonably prudent person in my position would not have acted as I did, i.e., with a negligent disregard for the risk of harm."

(5) "Although I know I caused harm, I neither did it on purpose nor knew it would happen, nor was I aware of a risk that it would happen; moreover, the ordinary reasonable person would not have been aware of the risk either."

The community must decide, in each instance, whether it is a sufficient excuse for a defendant to argue, as to each element of his offense:

(2) "I did act knowingly, but without purpose."

(3) "I did not act recklessly."

(4) "I was not negligent."

(5) Where a legal system deems it insufficient to excuse the defendant on the grounds that he neither acted intentionally, recklessly, or negligently in causing the harm, the defendant is said to be strictly liable.

Imagine that there is a law which makes the sale of adulterated milk illegal. The defendant admits that he sold milk that was in fact adulterated. He admits that he sold the milk, knowingkly and with purpose. But he says he believed (mistakenly) that the milk was wholesome. Even if he says he did not believe the milk was adulterated, he may still be found guilty if the law requires recklessness, so long as it can be shown that the defendant was (at least) subjectively aware of an unreasonable risk that the milk was adulterated.

If the law requires merely that a defendant be negligent, conviction would be easier: if the reasonably prudent milk seller would have been aware of the unreasonable risk that the milk was adulterated, it would make no difference whether or not the defendant himself was subjectively aware of this risk.

Finally, if the law is construed as a strict-liability statute, mistakes (and the usual excuses in terms of mistaken perceptions made by the defendant) would simply be irrelevant. Although the maxim actus non facit neum nisi mens sit rea (a harmful act without a blameworthy mental state is not punishable) dates back to 1641, there have long been "pockets" in the criminal law of strict-liability, in which defendants can find themselves liable for injuries brought on by their actions, even if they were not "at fault" in failing to act reasonably and to exercise care for the well-being of others.

Commonwealth v. Elwell (Massachusetts, 1840)

The court held that a defendant can be convicted of adultery, even though he might reasonably believe he is having sexual relations with an unmarried women.

Commonwealth v. Mash (Massachusetts, 1844)

The court decided that a person can be convicted of bigamy even though he reasonably but mistakenly believed that his first wife was dead.

John, Alice, and Henry Rob a Bank

John, Alice and Henry decide to rob a bank. Henry waits in the getaway car while John and Alice (a latter day Bonnie and Clyde) commit the holdup. During the hold-up John turns on Alice and shoots her. On the felony-murder doctrine can Henry, who (remember) is waiting in the getaway car, be found guilty of murder? (See People v. Cabaltero 31 Cal. App. 2d 52, 1939)

John, Alice, and Henry Strike Again

John, Alice and Henry decide to rob a bank. Henry waits in the getaway car while John and Alice (a latter day Bonnie and Clyde) commit the holdup. After they leave the bank and drive off with Henry, one of the tellers dies of a fright-induced heart attack. Some states, again California, have held that Henry can be convicted for this murder as well. (See People v. Stampe 2 Cal. App. 3d 203, 1969)

Prepared: February 4, 2003 - 5:02:29 PM
Edited and Updated, February 5, 2003