putting the “strict” back in “strict liability”

Thank you Parking Enforcement Officer P515 for the ticket you left on my car last Saturday, in front of my house, on the morning of the day that my registration expired!  I can picture it now: a quiet weekend morning in a tree-lined neighborhood, the early fall air is still and cool, birds are chirping, the sun is just cresting the mountains to the east and warming your face, Parking Enforcement Officer P515, as you walk from car to car dealing out tickets to the slightly lazy registered-car-owners of Salt Lake City!  Your proud efforts give me occasion to wax lawyerly about Strict Liability, and for that I thank you!  Carry on!

Anyway, my ticket says that the owner and driver of the car is “strictly liable” for any parking infractions.  In that context, strict liability can probably be translated as “don’t try to argue that you didn’t park the car or that you loaned the car to a friend for the week; we don’t care,” but strict liablity has another more general meaning in the world of criminal law.  It means something like “it doesn’t matter what you were thinking when you did it.”

You see, most crimes must have both an “actus reus” and a “mens rea.”   An actus reus is basically a criminal act, and a mens rea is basically a criminal state of mind.  For instance, in Utah, “[e]very person who unlawfully and intentionally deprives a human being of a member of his body, or disables or renders it useless, or who cuts out or disables the tongue, puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.Utah Code 76-5-105.

So, for the crime of Mayhem, the actus reus is the dismembering or the tongue-cutting or the nose-slitting or whatever, and the mens rea is “unlawfully and intentionally.”  That is, if you’re running with scissors and you slip and slit your brother’s nose wide open, you did not commit Mayhem, because you didn’t have the “mens rea” for it; i.e., you didn’t have the required criminal state of mind because you didn’t do it “intentionally.”

Some crimes have a lower degree of mens rea.  For instance, to commit the crime of Furnishing Alcohol to a Minor in Utah, you commit a class A misdemeanor if you knew the kid was underage when you gave them the beer, and a class B misdemeanor if you negligently failed to determine that the kid was underage when you gave them the beer.  The state of mind required for the crime is either “knowingly” (Class A), or “negligently” (Class B).  (Just as an aside, “negligently” isn’t exactly a state of mind, but it’s sort of similar.  To be negligent is to act below the standard of what a reasonable person would have done.  If you were being charged with giving beer to a minor, you might say, “I’d never seen the kid before in my life! Yeah, he had really skinny arms, a wispy mustache and a skateboard, but I thought he was just a hipster! I didn’t “know” he was under 21!”  The judge might agree that you didn’t “know” he was under 21, but she might respond “Everyone knows that hipsters ride long-boards and this kid had a short-board.  Therefore you were negligent in not figuring out that he was underage.”)

For most crimes, negligence is a low enough standard, but for some special crimes, the justice system goes even lower: to strict liability.  That is, it does away with the mens rea completely and just says “if you did the act of the crime, you’re guilty of the crime.”  This low level of proof is mostly just reserved for the most minor crimes and offenses.  For instance, in Utah, much of the traffic code doesn’t require a mens rea.  (See the Code).  Basically, it’s too hard for the DA to prove that every person speeding on the highway is being “criminally negligent,” especially since every person on the highway is speeding, so we don’t make them prove it.  Similarly, they don’t have to prove that I negligently forgot to renew my registration.  The fact that I own the car and that it wasn’t registered–albeit for about 10 hours on a Saturday morning–is enough.

PS: No hard feelings Parking Enforcement Officer P515 (which isn’t your real number anyway); I know you’re just doing your job.