CHAPTER 6

Strict Liability

OVERVIEW

Notwithstanding the law’s general insistence that the state prove the defendant had a mens rea, in a very few instances courts interpret statutes that have no mens rea words as allowing criminal liability to be imposed even though the defendant had no mens rea (even tortious negligence) with regard to one or more material elements of the offense. (See Chapter 4 for a discussion of “elements analysis.”) A common example is a statute that makes it a crime to sell alcohol to a minor. Most courts would require that the government prove that the defendant knew he was selling liquor; a mistake of fact that the item sold was water would usually exonerate.[1] If there is strict liability in such a statute, it is with respect to the material element of the customer’s age.

Suppose that Gregori, a bartender, makes it a practice to “card” every new customer. In walks Herbert. Gregori asks for identification as to age, and Herbert produces a driver’s license and a union card, each of which shows him to be 24. Since such documents can be easily forged, reliance on them might not be deemed reasonable by a court or a jury. But assume that Herbert, though 17, looks 24, and that Gregori has acted reasonably. Under a strict liability approach Gregori’s reasonableness is irrelevant; Gregori is guilty of serving a minor. Now suppose that Gregori, having been stung (not to mention convicted) once, takes “supercare” the next time. When Isaiah comes in, Gregori asks for his driver’s license, his university or union ID, his birth certificate, and a notarized letter from his parents, whose signature Gregori has obtained in advance, all attesting to Isaiah being over the legal drinking age. If Gregori serves him, and Isaiah is underage, TOO BAD. Gregori is still liable. Wait—it gets worse. Suppose that in the Isaiah example, the documents were not forged, and that EVERY ONE (including Isaiah’s parents) was wrong about his birth date. Even then, Gregori is liable. When the courts say NO mens rea—not even tort negligence—is required, they mean it.

One further distinction must be drawn. There are many other areas of the criminal law, felony murder (discussed in Chapter 8) and mistake of law (discussed in Chapter 5) among them, where the common law has, for decades if not centuries, imposed liability without regard to mens rea as to one or more elements of the crime. Yet they are not generally referred to as strict liability “crimes.” Perhaps they are better thought of as strict liability “doctrines,” because they apply to virtually all underlying crimes, rather than to a specific statutory offense. For example, the “ignorance of law” doctrine applies to virtually ANY crime, and imposes liability without regard to the defendant’s moral culpability. Similarly, the felony murder doctrine, as discussed in detail in chapter 8, imposes added liability for a death that occurs during virtually “any” felony.[2]