Rationale for Strict Liability

Strict liability is among the most debated topics in criminal law because it challenges the long-standing principle that blameworthiness depends on a guilty mind. While proponents argue that strict liability serves regulatory efficiency and protects public welfare, critics contend that it undermines fairness and the retributive ideal that punishment should track culpability.

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.

Statutory Rape

Statutory rape laws criminalize intercourse with a minor regardless of the actor’s reasonable mistake about age. Courts justify this on the grounds of protecting minors and discouraging sexual exploitation. However, these laws raise sharp fairness concerns because they punish even actors who reasonably believed the partner was of age.

You will read Garnett v. State, a Maryland case that highlights the harsh implications of strict liability. Garnett, a 20-year-old man with an intellectual disability, engaged in consensual sexual intercourse with a 13-year-old girl who misrepresented her age. Maryland’s statutory rape law imposed strict liability: the defendant’s belief about the victim’s age—reasonable or not—was irrelevant. The court upheld the conviction, reasoning that the legislature intended to create an absolute prohibition to protect minors from sexual exploitation. The decision underscores the rationale commonly offered for strict liability in morality-based offenses: the need to shield vulnerable populations, even at the cost of punishing actors who may lack culpability.

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.