Unit 13: Strict Liability


  • Dressler 139-144

  • Staples (CP)

  • Garnett (CP)



  • strict liability

  • public welfare offense


A strict liability offense omits a mens rea requirement for one or more of the elements of the offense.

Most jurisdictions favor including a mens rea requirement for all material elements, and there is a presumption against strict liability offenses for common law crimes. In order to overcome this presumption, courts consider several factors. First, the prosecution must show some legislative intent (express or implied) that the statute is a strict liability offense. Second, the standard imposed by the statute must be reasonable and expected (e.g. if the statute criminalizes behavior that is not immoral, the standard is not reasonable or expected). Third, the penalty imposed by the statute should be relatively small. Finally, the conviction should not damage the reputation of the offender.

Public welfare offenses are frequently strict liability offenses. These statutory offenses are not rooted in the common law, and the penalty is usually a fine. Examples include pure food laws; motor vehicle and traffic regulations; sanitary, building, and factory laws; hunting regulations; and minor violations of liquor laws.

Few offenses outside of public welfare offenses are strict liability offenses. Felony murder (for which a defendant is strictly liable as to the result of death) and statutory rape (for which a defendant is strictly liable as to the victim’s age) are two exceptions.

Rationale for Strict Liability

Retributivists favor a mens rea requirement because it assures that only those who are morally blameworthy will be punished.

Utilitarian principles can justify strict liability for public welfare offenses. Since the penalties for public welfare offenses are slight, the cost borne by defendants is outweighed by society’s need for regulation. Utilitarians argue strict liability offenses deter dangerous conduct and make those who participate in dangerous conduct more careful. Utilitarians also rationalize strict liability for public welfare offenses by arguing that a mens rea requirement for minor infractions would bog down the judicial system.

Alternatives to Strict Liability

There are three suggested alternatives to strict liability. The first is to impose a mens rea requirement of recklessness, but to set higher penalties. Although fewer people would be prosecuted, this alternative might be just as effective as a deterrent because of the higher penalties.  Another alternative to strict liability is a mens rea requirement akin to civil negligence in which the prosecution must prove the defendant’s criminal negligence. A third option would shift the burden of proof to the defendant to prove he had “a lack of mens rea.”—for a prima facie case in a strict liability offense, the prosecution would not need to prove mens rea, but the defendant would have an affirmative defense if he could prove that he was not negligent.

The Model Penal Code

MPC 2.02(1) eliminates strict liability for criminal offenses. The only exception is in MPC 2.05, which provides that “violations,” but not crimes, can be strict liability offenses. Violations are offenses that cannot result in any punishment besides fines.

The MPC takes a nuanced approach to strict liability for statutory rape.  MPC 213.1(1)(d) defines statutory rape as a male who has sexual intercourse with a female less than ten years old. Section 213.6(1) specifies that the male is strictly liable as to the victim’s age; an honest or reasonable belief that the child was over the age of ten is no defense. However, when criminality depends on the child being over the age of ten, but less than eighteen, “it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age.” Section 213.3(1) defines the offense of corruption of minors as a person who has deviate sexual intercourse with a child less than sixteen years old when the actor is at least four years older than the victim.  Corruption of minors is not a strict liability offense.

Questions for Review:

Q1. A statute reads in relevant part: “whoever attempts to board an aircraft while having on or about his person a concealed deadly or dangerous weapon, shall be fined not more than $1,000 or imprisoned not more than one year, or both.” Tom attempts to board a plane, but he is stopped when going through security. Authorities discover a butcher knife wrapped in clothing in his suitcase and a switchblade in a box that he placed on the conveyer belt along with his keys and wallet. At trial, the prosecution does not prove an intent to conceal, and Tom is convicted and sentenced to a year in prison. On appeal, he argues that the offense should require a proof of mens rea. If you were the court of appeals, how would you rule? See U.S. v. Flum, 518 F.2d 39 (8th Cir. 1975).

Q2. In Ireland and other European countries, a reasonable and honest mistake in regard to the victim’s age is considered an affirmative defense to statutory rape. Do you think statutory rape should be a strict liability offense in regard to the victim’s age?

Q3. If an offense in the MPC does not list a mens rea requirement, is it a strict liability offense?