LAW 535-001 – Criminal Law

Strict Liability


Strict liability offenses do not require mens rea.

Analysis if statute does not specify if mens rea required

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.