Analysis if statute does not specify if mens rea required
To evaluate, always look at, in order: common law, legislative intent, and the penalty.
- If the offense has a basis in common law, criminal intent is presumed to be required.
- If the offense does not have a basis in common law, the legislative intent must be looked at.
- If legislative intent is silent on the issue of mental state, the type and penalty of the law must be looked at.
- If legislative intent says mens rea is required, mens rea is required.
- If legislative intent says that a strict liability offense was intended, the penalty must be examined.
- If it has a serious penalty (felony), the statute may be unconstitutional.
- If it has a petty penalty no criminal intent is required.