Also known as: mala per se · malum in se
Written by attorneys — see sources below.
An act or offense that is inherently immoral or wrongful by its very nature, independent of any statutory prohibition. The classification turns on whether the conduct itself carries moral blameworthiness rather than on legislative fiat alone.
Cole chained the store's only emergency exit to deter theft despite knowing the action violated local fire codes. When faulty wiring ignited a blaze, janitor Samantha could not escape and died of smoke inhalation. Because the underlying misdemeanor was inherently wrongful, the death during its commission supported manslaughter liability without separate proof of foreseeability.
Fraternity president Mark ordered underage pledges to consume repeated shots of liquor under threat of expulsion, violating anti-hazing and alcohol laws. Pledge Jonah collapsed and died of alcohol poisoning. Because the predicate offenses were inherently wrongful, the death during their commission supported involuntary manslaughter without separate proof of foreseeability.
Investment associate Leah shoved a colleague who confronted her about unauthorized securities sales sessions. The shove caused the colleague to fall through a glass partition and bleed to death. The battery qualified as malum per se, so the resulting death during its commission supported manslaughter liability.
Defendant Marrero was a Federal corrections officer employed at a facility in Danbury, Connecticut. In 1977 he was arrested inside a Manhattan social club while carrying a loaded .38 caliber automatic pistol. At the time of arrest he asserted his Federal corrections officer status and maintained that he was authorized to carry the weapon without a permit. Marrero claimed that his belief rested on interpretations supplied by fellow officers and teachers together with the wording of the peace officer statutes themselves. The case had already moved through several procedural stages before trial. Marrero's pretrial motion to dismiss the indictment was granted at 94 Misc 2d 367. The Appellate Division reversed that order and reinstated the indictment by a divided vote at 71 AD2d 346. Marrero's subsequent appeal from the Appellate Division order lapsed and was dismissed. At trial Marrero sought to present evidence that his personal misunderstanding of the statutory definition of a peace officer excused his conduct. The trial court rejected the proffered defense, refused to charge the jury on the issue, and the jury returned a verdict convicting him of criminal possession of a weapon in the third degree. The Appellate Division affirmed the conviction.
View caseSupervisor Riley ordered workers to burn debris knowing the act was inherently wrongful and dangerous. Thick smoke crossed the road, causing a driver to swerve and kill cyclist Jordan. Because the underlying conduct was malum per se, the death during its commission supported manslaughter liability.
In 1981, Curtis Campbell was driving with his wife Inez in Cache County, Utah, when he attempted to pass six vans on a two-lane highway. This caused an oncoming driver, Todd Ospital, to swerve onto the shoulder, lose control, and collide with a vehicle driven by Robert G. Slawson and his wife, killing Ospital and permanently disabling Slawson. Campbell's insurer, State Farm Mutual Automobile Insurance Company, declined settlement offers of the $50,000 policy limit from Slawson and Ospital's estate despite early investigations indicating Campbell's fault and advice from its own adjuster. A jury in the underlying tort actions found Campbell 100 percent at fault and returned a judgment of $185,849 against him. State Farm refused to pay the $135,849 excess over policy limits or post a supersedeas bond. The Campbells then entered an agreement with Slawson and Ospital's estate under which the claimants would not seek satisfaction of the judgment in exchange for the Campbells pursuing a bad-faith action against State Farm, being represented by the claimants' attorneys, and assigning 90 percent of any recovery to them. The Campbells sued State Farm for bad faith, fraud, and intentional infliction of emotional distress. The trial court bifurcated the case into two phases before separate juries. In phase one the jury found State Farm's refusal to settle unreasonable. In phase two the jury heard evidence that State Farm's decision was part of a nationwide Performance, Planning and Review policy implemented since 1979 to cap payouts and meet corporate profit goals, including testimony from former Utah employees and experts about practices in multiple states over twenty years. The jury awarded $2.6 million in compensatory damages and $145 million in punitive damages. The trial court reduced the compensatory award to $1 million and the punitive award to $25 million. Both sides appealed. The Utah Supreme Court reinstated the $145 million punitive damages award after applying the three guideposts from BMW of North America, Inc. v. Gore and relying on the nationwide evidence, State Farm's wealth, and the statistical likelihood of punishment in only one of 50,000 cases. The United States Supreme Court granted certiorari.
Engineer Nina flew a drone indoors in a crowded space knowing the act was inherently wrongful. The drone struck a light fixture that fell and killed attendee Carlos. Because the underlying conduct was malum per se, the death during its commission supported manslaughter liability.
Respondents Glen Theatre, Inc. and Kitty Kat Lounge, Inc. operate establishments in South Bend, Indiana, that provide adult entertainment including live performances by nude or seminude dancers viewed through glass panels or on stage. Darlene Miller worked at the Kitty Kat Lounge on commission and sought to dance totally nude to increase her earnings. Gayle Ann Marie Sutro performed at Glen Theatre after a professional career in dancing and modeling. In 1985 the city enacted an ordinance banning public nudity, defined as the showing of genitals, pubic area, buttocks, or female nipples with less than full opaque covering, which required dancers to wear pasties and G-strings. Respondents filed suit in the United States District Court for the Northern District of Indiana alleging that the ordinance violated the First Amendment by prohibiting totally nude dancing. The District Court originally granted respondents' prayer for an injunction, finding that the statute was facially overbroad. On remand after the Seventh Circuit's initial reversal, the District Court concluded that the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States. It rendered judgment in favor of the defendants. The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment. The Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals on the question whether nude dancing is expressive conduct protected by the First Amendment.
Supervisor Leo ordered concrete saws to run after hours knowing the act was inherently wrongful and dangerous. The sudden noise startled resident Nora, who fell down stairs and died. Because the underlying conduct was malum per se, the death during its commission supported manslaughter liability.
On March 7, 1980, a teacher at Piscataway High School in Middlesex County, New Jersey, discovered two girls, including fourteen-year-old freshman T. L. O., smoking in a school lavatory in violation of school rules. The teacher escorted the girls to the principal’s office, where they met with Assistant Vice Principal Theodore Choplick. When questioned, T. L. O. denied smoking in the lavatory. Choplick then took T. L. O. into his private office and demanded to inspect her purse. Upon opening the purse, Choplick found a pack of cigarettes and a package of cigarette rolling papers. Suspecting drug involvement, he conducted a thorough search of the purse, uncovering a small amount of marijuana, a pipe, empty plastic bags, a substantial quantity of one-dollar bills, an index card listing students who owed T. L. O. money, and two letters implicating her in marijuana dealing. Choplick turned this evidence over to the police, and T. L. O. was charged with delinquency based on possession of marijuana with intent to distribute. T. L. O. moved to suppress the evidence from her purse, arguing that the search violated the Fourth Amendment. The Juvenile Court denied the motion to suppress. The Appellate Division affirmed the denial of the suppression motion but remanded on other grounds. The New Jersey Supreme Court reversed, holding the search unreasonable and ordering suppression of the evidence. The State of New Jersey petitioned for certiorari, which the United States Supreme Court granted. The Court initially focused on the exclusionary rule but later ordered reargument on the Fourth Amendment standard applicable to school searches.
When the underlying misdemeanor is malum per se, many courts impose manslaughter liability for a resulting death without requiring separate proof that the death was foreseeable. The inherent wrongfulness of the act supplies the necessary culpability. In contrast, when the misdemeanor is merely malum prohibitum, the prosecution must show that the death was a natural or foreseeable consequence of the unlawful conduct.
Supporting sources
…to note that for many years even those in favor of the rules against solicitation by attorneys agreed that solicitation was not "malum in se." H. Drinker, Legal Ethics 211 n. 3 (1953). Dr. Johnson, a venerable commentator on mores of all sorts, expressed well the prevailing view of the profession when he stated: "I should not…
…of "gross and open indecency" in Winters v. New York , 333 U. S. 507, 515 (1948). Public nudity was considered an act malum in se . Le Roy v. Sidley , 1 Sid. 168, 82 Eng. Rep. 1036 (K. B. 1664). Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among…
…But this rule, in its application to the law of crimes, is subject to certain important exceptions. Where the act done is malum in se, or where the law which has been infringed was settled and plain, the maxim, in its rigor, will be applied; but where the law is not settled, or is obscure, and where the guilty intention,…
…the offender, or rather the offence is attached primarily to the thing; and this, whether the offence be malum prohibitum, or malum in se
…e.g. , a policeman or one of the felons) and the identity of the person causing the death. (4) "The felony must be malum in se ." (5) "The act must be a common-law felony." (6) "The period during which the felony is in the process of commission must be narrowly construed." (7) "The…
Malum per se refers to conduct that is inherently immoral or evil in itself, such as murder or rape. Malum prohibitum refers to conduct that is wrongful only because a statute or ordinance forbids it, such as a regulatory fire-code violation. The distinction determines whether foreseeability of harm must be proven to support manslaughter liability under the misdemeanor-manslaughter rule.
No. Regulatory offenses such as fire-code or noise-ordinance violations are treated as malum prohibitum because they lack inherent moral wrongfulness. They become the basis for manslaughter only when the resulting death is shown to be a foreseeable consequence of the violation.
Supporting sources
Yes. The classification focuses on the nature of the underlying conduct, not on the defendant's mental state regarding the resulting death. Forcing underage pledges to drink excessively or chaining an emergency exit in violation of fire codes can be malum per se or malum prohibitum regardless of whether the actor intended anyone's death.
Supporting sources