Introduction

Strict Criminal Liability

Introduction

A defendant who took every precaution a careful person would take can still be convicted when the statute asks only whether the forbidden fact existed, such as whether the person involved was under a particular age or whether an item was of a prohibited kind. Liability of that sort is called strict liability: criminal responsibility that does not require proof of a culpable mental state as to a material element of the offense. The Model Penal Code calls the same idea absolute liability in § 2.05, while the commentary and the cases speak of strict liability, so this chapter uses the two terms interchangeably.¹ The idea sits uneasily with what a criminal conviction does. A conviction condemns the person convicted, and condemnation seems to presuppose that the person was blameworthy, yet legislatures sometimes drop the requirement of fault because proving it would make enforcement harder.

The Code takes that tension seriously because its general provisions rest on the principle that the criminal law exists to deter blameworthy, harmful conduct and that faultless conduct should be shielded from punishment.² Against that background, its answer to strict liability is one narrow exception to an otherwise universal culpability requirement. Section 2.05 lifts the culpability requirements of §§ 2.01 and 2.02 in limited circumstances and nowhere else.³ The drafters reached a compromise on the question: such offenses may exist, but they are classified as violations punishable only by fines.⁴ That classification keeps the severity and stigma of a true crime away from a defendant whose fault was never proved.

To see what the exception departs from, the lesson begins with the Code's ordinary rule. Under § 2.02, a person must act in one of four modes of culpability with respect to the material elements of an offense: purposely, knowingly, recklessly, or negligently.⁵ Strict liability is defined by an absence, so an offense can be recognized as strict only by knowing which mental state the Code would otherwise demand for each material element. Once that baseline is fixed, the lesson turns to the situations in which § 2.05 allows absolute liability, then to what it does to the grade and sanction of an offense, and finally to the policy dispute that explains why the provision looks the way it does. The first step is the culpability baseline itself.