Criminal Law

If a statute does not specify whether mens rea is required or if it is a strict liability offense, the presumption is against strict liability.

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.
  • This presumption can be rebutted by establishing all of:
    1. Clear legislative intent supporting strict liability
    2. Petty penalty
    3. Conviction does not "gravely besmirch"
• 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 it is a public welfare law and has a petty penalty, it is presumed to be a strict liability offense.
    • If it is not a public welfare law or has non-petty penalties, mens rea is presumed to be required.
  • 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.