Historically, evil intent has been an element of most crimes. Prosecutors had to show a person willfully intended to break a law. Statutes have generally contained words such as “knowingly,” ‘‘willfully” and “deliberately” to signify the element of intent in a crime. But increasingly, statutes and regulations have omitted the need to show intent.
This is particularly true in the area of regulatory law. But Charles Owens of the Michigan branch of the National Federation of Independent Businesses notes the growing complexity of laws and regulations that put small-business owners and individuals at risk for committing crimes they didn’t know existed.
The Mackinac Center, a free-market think tank in Midland, has issued a study on the decline of intent as an element in crimes, and proposed a solution.
When a criminal law does not include intent, the crime is known as a strict liability offense. An example noted by the Mackinac Center is statutory rape. Sex by an adult with a minor is punishable regardless of whether the adult knew the minor was underage. This places a heavy burden on adults engaging in sex with young people to make sure of their partners’ age, and that’s a good thing.
But the Mackinac Center argues that the Legislature ought to specifically designate crimes carrying strict liability. The center proposes adoption of a statute saying that evil intent or guilty mind — “mens rea” is the Latin legal term — should be assumed to be part of every criminal law unless the Legislature specifies otherwise.
It’s a reasonable suggestion and not a particularly partisan one. When it comes to federal law, for instance, both the conservative Heritage Foundation and the liberal Criminal Defense Attorneys Association have joined in a study noting the decline of mens rea as an element in federal crimes.
Few Michiganians would know, for instance, that it is a strict liability crime in Michigan to fail to provide adequate shelter and nutritious food to a ferret. Or that it’s a strict liability crime to transport Christmas trees without a bill of sale — with a Christmas season exception of two trees per person. Or that it’s a strict liability crime to fail to note the license number of a vehicle used to transport poultry in paperwork concerning the sale of the poultry. The Mackinac Center notes these offenses and more.
Environmental regulations have increased dramatically at the state and local levels — and some carry strict criminal liability. The Rapanos case, in which a Midland landowner fell afoul of the U.S. EPA for filling in what he believed were large puddles on his own land, went all the way to the U.S. Supreme Court. The High Court reined in some of the EPA’s authority, but it took years of litigation and a $1 million settlement before the case was concluded.
Big corporations, observes Owens, have a staff of lawyers to keep track of laws and regulations and observe which carry a strict criminal liability.
But small firms often do not — nor do individuals. Strict criminal liability may be necessary in some instances, but it shouldn’t be the norm. Nor should judges have to decide on a case-by-case basis which laws should require intent if the Legislature fails to mention it.
A Michigan statute stating that criminal intent is an element in all criminal laws unless the Legislature deliberately decides otherwise should be adopted.
The Detroit News