Concept
Debating Strict Liability
Strict liability
Debating Strict Liability
The mechanics of § 2.05 make the most sense as the settlement of an old argument. Strict criminal liability means conviction without proof that the defendant was at fault as to some element of the offense. It has drawn sustained objection because it condemns people who have done nothing that a criminal sanction can fairly answer. The Code's drafters called § 2.05 a frontal attack on absolute liability, yet they did not abolish it. Their method was to let a strict conviction stand while reducing the offense to a violation, which is not a crime and may be punished only by a fine or another civil penalty.1 That design follows from a view about what a conviction means: crime does and should mean condemnation, and no court should pass that judgment unless it can declare the defendant's act culpable.2 The arguments for and against strict liability are therefore the reasons the line was drawn where it was.
Statutory rape serves as the running illustration, because it is the area where strict liability is most entrenched and most contested. In Garnett v. State the Maryland court read the second-degree rape provision as defining a strict liability offense that made no allowance for a mistake-of-age defense, even while acknowledging that commentators disapprove of treating statutory rape that way.3 A 2003 survey counted twenty-nine states and the District of Columbia applying strict liability to statutory rape. Eighteen states took a hybrid approach that allows a reasonable belief about age as a defense in the ordinary case but applies strict liability when the victim is very young, and only two states rejected strict liability entirely.4 Those figures show that the Code's position answers a live disagreement that the states have resolved in different ways. The next subsection sets out the objections to strict liability, and the one after it takes up the enforcement arguments in its favor and the Code's replies.
The Case Against
The objections to strict criminal liability start from the two reasons a legal system gives for punishing anyone. Punishment is defended either as a way of preventing future offenses, by deterring, incapacitating, or reforming the offender, or as the deserved response to a person who is morally to blame. Each objection attacks one of those justifications. The first holds that strict liability is inefficacious: conduct carried out without awareness of the facts that make it criminal does not mark the actor as someone who must be punished to discourage similar conduct, and it does not single the actor out as dangerous or in need of reform.5 A person who does not know the fact cannot adjust to a threat attached to it, so the threat buys no prevention. The second holds that strict liability is unjust, because the actor takes on the stigma of a criminal conviction without being morally blameworthy.6 Once the mental state is absent, the criminal sanction therefore has nothing to rest on under either a preventive or a retributive theory of punishment.7
The two objections converge on the defendant who took every reasonable precaution. A statute that criminalizes selling alcohol to a minor still requires proof that the seller knew the product was alcohol, since a mistake that the drink was water would usually excuse, so the strictness sits on one element, the customer's age.8 In an illustration of that setting, a bartender named Gregori cards every new customer, and Herbert, who is 17 but looks 24, presents a driver's license and a union card that each show an age of 24. Gregori acts reasonably in serving Herbert, yet under strict liability that reasonableness is irrelevant and Gregori is guilty.9 Convicted once, Gregori takes extra care with the next customer, Isaiah, and demands a license, a university identification, a birth certificate, and a notarized letter from Isaiah's parents attesting that he is of age. If Isaiah is underage, Gregori is liable anyway, and the result is the same even if every document was genuine and everyone, the parents included, was mistaken about the birth date.10 Because no added care could have changed the outcome, the threat of conviction cannot induce the care it is meant to induce, which is the inefficacy objection at its sharpest. Because Gregori did nothing a person could fairly blame, the conviction carries stigma without fault, which is the injustice objection. Students lose this point when they assume strict liability removes every mental-state requirement, because the usual offense is strict as to one element only.
Statutory rape is the setting in which these objections are pressed hardest. In Garnett v. State the Maryland court read a second-degree rape provision, which reaches a person at least four years older than a victim under 14, as a strict liability offense that allows no mistake-of-age defense.11 The defendant was 20, had an IQ of 52, read at a third-grade level, and interacted socially at about the level of an 11- or 12-year-old; the girl was 13.12 Critics of that rule point out that such prosecutions often proceed even when the defendant's judgment about age was warranted by the girl's appearance, her sexual sophistication, her verbal misrepresentations, or the defendant's careful efforts to learn her true age.13 They add that voluntary intercourse with a sexually mature teenager lacks the psychic abnormality, exploitation, or physical danger that accompanies such conduct with children, which weakens any claim that the defendant is a socially dangerous person who must be incapacitated.14 The usual reply to the injustice objection here is the moral-wrong theory, under which a defendant without mens rea as to age still deserves punishment for violating moral teachings against sex outside marriage.15 The Garnett court acknowledged that theory, and it also acknowledged that it was uncertain how far this defendant's intellectual and social limitations impaired his ability to comprehend the imperatives of sexual morality at all.16 The theory therefore answers the injustice objection only for a defendant capable of the moral understanding it assumes.
The statute is the same in both scenarios, and what changes is the fault that the defendant's own conduct reveals. The objections therefore carry weight in proportion to how little blame a conviction would rest on. That proportion also explains why a negligence standard is the Code's answer to the careless defendant: a properly calibrated negligence standard induces caution without sweeping in the truly faultless, who are the persons upon whom the law can have no effect.17
A third group of objections asks whether criminal punishment is needed to reach the legislature's goals at all. Extensive government civil regulation and strict liability in tort already produce the same deterrent effect, because an actor facing a civil penalty or a damages judgment has the same financial reason to take care whether or not a criminal conviction follows.18 The efficiency that strict liability promises, disposing of minor offenses without an inquiry into mens rea, is likewise attained by decriminalizing those offenses and hearing them in a regulatory or administrative forum.19 Both objections share one structure: they accept the goal, whether deterrence or quick disposition, and deny that the criminal label is needed to reach it. The price of keeping the label is the stigma described above, which civil and administrative alternatives do not impose. The argument that enforcement in some areas cannot work without strict liability answers this objection, and the Code's reply to that argument comes in the next subsection.
Two further objections concern the standing of the criminal law itself. Most strict-liability offenses carry small penalties, and that leaves the public to sort real crime from some lesser form of crime, so that a conviction no longer reliably signals serious wrongdoing.20 Strict liability also dilutes the moral force that the criminal law has historically carried, because the stigma of a guilty verdict is what separates a criminal penalty from every other sanction, and that stigma means less once it can be earned without blameworthiness.21 The point is put at its strongest in the claim that blameworthiness is the predicate of all criminal liability, so that removing it sets the criminal law adrift.22 A final objection is practical: some strict-liability laws result from careless drafting, as when a legislature leaves out mental-state words without deciding whether fault should matter, so the strictness records an oversight rather than a judgment about who deserves blame.23
Drafting alone does not answer the fairness objection. Strict liability comes in forms that the objection reaches in different degrees. An offense is pure strict liability when liability depends on awareness of none of its objective elements, impure when it depends on awareness of some of them, and substantive when the offense can be committed by a morally blameless person.24 Pure strict liability offenses are unusual, since most conduct terms imply some awareness of what one is doing, and the controversial cases are usually impure offenses that also look substantive.25 As a general matter the Code rejects the formal version by conditioning liability on some level of awareness of every act, circumstance, and result that defines the offense.26 A further objection asks whether that formal requirement also prevents substantive strict liability, and the forest-fire example suggests that it may not. A legislature could decline to punish anyone who causes a forest fire, with or without fault, and instead prohibit knowingly carrying a match in or near a forest, with a five-year penalty if the carrying causes a fire. The statute then has a mental-state requirement in form, yet a person can handle a match with perfect care, be at no fault, and still contribute to a fire, so in substance the law resembles one that simply punishes causing a fire.27 The objection is therefore to punishing the blameless however the statute is worded.
The objections have drawn replies, and the inefficacy claim in particular is contested. It has been argued that a strict-liability offense may deter better than an ordinary criminal statute, because a person engaged in an activity known to be governed by strict liability will take more care for that very reason, and because strict liability may keep a large class of persons out of the activity altogether.28 It has also been argued that these offenses often require fault in a restricted sense, since they can be read as legislative judgments that persons who intentionally engage in an activity and occupy a position of control over it are accountable for certain consequences.29 Even so, it is generally agreed that a conviction on a strict basis should be insulated from the moral condemnation that is implicit when imprisonment may be imposed, and that agreement is the foundation of the Code's design.30
The Code applies these objections directly. Its general provisions rest on the principle that the criminal law should reach blameworthy, harmful conduct and shield faultless conduct from punishment.31 The drafters called § 2.05 a frontal attack on absolute liability and treated as too fundamental to compromise the principle that crime means condemnation, which no court should pronounce unless it can declare the defendant's act culpable.32 Where a non-Code statute imposes absolute liability and a conviction rests on it, the offense is therefore a violation, which is not a crime and may be punished only by a fine or other civil penalty.33 That reduction answers the injustice objection by taking the condemnation out of the conviction.
Enforcement Arguments and Replies
The objections to strict criminal liability meet an opposing argument that begins with expediency. In some fields of conduct a prosecution that must prove fault rarely succeeds, because the defendant's state of mind is a fact that only the defendant can speak to directly, and a seller who says he believed the goods were sound is hard to contradict. Where the harm is serious enough, or the number of prosecutions large enough, a legislature may therefore make the absence of fault no defense and spare the prosecution that inquiry.37 The reasoning is old. In the 1846 English decision Regina v. Woodrow, the court conceded that a dealer who failed to examine his stock might suffer without fault, but held that the public inconvenience would be far greater if officers had to prove knowledge in every case, since they would seldom be able to.38
Two American decisions add the regulatory setting. In Morissette v. United States the Court traced the spread of offenses that dispense with intent to the dangers of industrial life, such as unsafe food, drugs, and machinery, and described what those offenses share. They punish neglect where the law requires care, so the injury is the same whatever the violator intended; the accused is usually in a position to prevent the violation with no more care than society may fairly expect; and the penalties are small, so a conviction does little damage to reputation.39 Chief Justice Taft's opinion in United States v. Balint applied similar reasoning to a seller of narcotics: Congress weighed the injustice of penalizing an innocent seller against the danger to buyers, chose to protect buyers, and was influenced by the seller's chance to learn the facts and the difficulty of proving what the seller knew.40 The same opinion rejected the claim that punishing a person ignorant of the facts denies due process, which leaves the choice to the legislature and makes the dispute one of policy.41
The enforcement argument shows its full force in the responsible corporate officer doctrine. In United States v. Dotterweich, the president and general manager of a drug repackaging company was convicted under the Federal Food, Drug, and Cosmetic Act for shipping adulterated and misbranded drugs, and the Court treated the offense as one of strict liability, which removed any need to prove that he knew of the violation. The question became whether he had a "responsible share in the furtherance of the transaction," a phrase the Court left to prosecutors, trial judges, and juries to apply.42 Four dissenting justices objected that guilt was being imputed to him solely because of his position, without personal participation or knowledge.43 In United States v. Park the Court reinstated the conviction of the chief executive of a national food chain whose Baltimore warehouse was open to rodents, holding that the office alone was not enough but that a responsible share in the prohibited acts was, and the sentence was a fine of $50 on each count.44 The modest fine fits the pairing the public welfare rationale assumes: proof that dispenses with knowledge goes together with a sanction that does little harm to the person convicted.
Statutory rape draws on a different defense of strictness, the moral-wrong theory, which does not depend on prosecutorial convenience at all. Under it, a defendant who lacks mens rea as to the complainant's age still deserves punishment, because the defendant has violated moral teachings against sex outside marriage.45 The theory concedes that no fault attaches to the mistake about age and locates the blame in the underlying act, so it answers the injustice objection only for a defendant able to grasp the moral teaching it invokes. In Garnett v. State the court acknowledged the theory while admitting it was uncertain how far a 20-year-old defendant with an IQ of 52 could comprehend imperatives of sexual morality.46 The theory has nothing to say about a mislabeled product or an unlicensed sale, since no one describes those as breaches of sexual morality, so regulatory offenses must rest on the enforcement argument alone.
The Code's reply to both defenses accepts the premise and rejects the inference. If practical enforcement really does preclude litigating whether the defendant was culpable, the drafters reasoned, the enforcers cannot rightly demand penal sanctions to solve their problem. The drafters put the point this way: "Crime does and should mean condemnation and no court should have to pass that judgment unless it can declare that the defendant's act was culpable."47 A common error is to say that the Code forbids strict liability altogether, when the Code keeps strict liability and changes the label attached to a conviction. Where a non-Code statute imposes absolute liability and the conviction rests on it, the offense is a violation, which is not a crime and may be punished only by a fine, a fine and forfeiture, or another civil penalty, without the legal disabilities of a criminal conviction.48 The enforcement argument bundles two demands, easy proof and the stigma of a criminal conviction. The Code separates them, so easy proof earns only a monetary sanction. That separation also removes an unfair transfer of cost, since the state saves the expense of proving fault while the defendant alone bears the stigma of condemnation without it.
The five responses are collected from one source of commentary.49 Responses 1 and 4 are the most useful on an exam, because they attack the claim that strictness is needed at all, while the Code's reply concedes the claim and then limits what it can buy.
States do not agree on how far these defenses carry for statutory rape. One researcher's 2003 survey found that twenty-nine states and the District of Columbia applied strict liability to the offense, that eighteen states took a hybrid approach, and that only two rejected strict liability entirely; the figures describe that survey and should not be read as a count of current law.50 The hybrid states let a defendant claim a reasonable belief that the complainant was old enough to consent in the ordinary case, but apply strict liability when the complainant is very young.51 The line has a functional logic. The younger the complainant, the less a mistaken belief about age can be reasonable and the graver the wrong, so strictness costs the least fairness where it protects the most. At the other end, critics note that voluntary intercourse with a sexually mature teenager lacks the psychic abnormality, exploitation, or physical danger that accompanies such conduct with children, which weakens the case for treating a good-faith mistake as irrelevant.52
The middle position was already visible in the 1970s. A footnote in Patterson v. New York observed that a number of states had softened their statutory rape laws by recognizing a defense for a defendant who shows a reasonable belief that the partner was of age, where age had formerly been a strict-liability element.53 Placing the burden on the defendant is itself a compromise. The state need not prove awareness of youth beyond a reasonable doubt, yet awareness of youth is treated as material enough that a reasonable mistake can lead to acquittal.54
The statute and the state are identical in both scenarios, and the fact that moves the answer is how young the complainant is, together with how plausible the defendant's belief could be. That variable is what a hybrid statute sorts on, and it explains why the same legislature can be strict in one case and forgiving in the next.
The problem drawn from State v. Moser invites argument on both sides of the debate. An adult male of 42 exchanges many sexually charged messages online with a female who says she is sixteen but is in fact fourteen, and then asks to meet her for intercourse. Assuming the request is a solicitation, he is charged with child solicitation, a felony carrying up to three years in prison, under a statute that reaches solicitation of a person fifteen or younger and states expressly that mistake as to age is no defense.55 The prosecution would argue that the express no-mistake clause makes the legislative purpose of absolute liability plain, which is what the Code asks of a non-Code statute; that a defendant who pursues sexual contact with a stranger on nothing but the stranger's own word about age takes the risk of this very result; and that anonymity online makes proof of what the defendant knew about age the kind of problem the enforcement argument addresses.56 The defense would answer that the defendant believed the female was sixteen, above the age the statute protects, so he lacked awareness of the very fact that makes the request criminal; that the Code ordinarily requires purpose, knowledge, recklessness, or negligence as to each material element; that a conviction resting on absolute liability would be graded only a violation, not a felony carrying prison time; and that the premises of the public welfare rationale, small penalties and little reputational harm, are absent when the sanction is a felony.57 Each side's strongest points draw on the justifications already described, and the problem is left open here so that either position can be argued.