Alternative Forms of Strict Liability - What is the common law approach to strict liability.

Does it differ from the Model Penal Code approach to strict liability?

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Overview - As we have seen in previous posts, mens rea is considered the central concept of American criminal law.

Strict liability – imposing criminal liability without requiring proof of a culpable mens rea – stands in sharp tension with this principle. Nonetheless, strict liability crimes, while limited in number and scope, are an important part of the common law tradition.

More recently, a modern type of strict liability, distinct from its common law predecessors, has developed in response to the unique kinds of social harms occasioned by modern industrial society.

With this post, we begin our exploration of both the traditional and modern forms of strict liability, as well as the approach taken by the Model Penal Code, which – with some limited exceptions – rejects the concept of strict liability.

One caution: Criminal Law v. Tort Law Strict liability is also a tort law concept, but be careful to keep that kind of strict liability separate in your mind from the criminal law variety. Although there are similarities, there are also important differences, and you will be better off if you treat them as separate concepts that just happen to share a name.

Common Law Approach to Strict Liability - Strict liability is the imposition of criminal liability for an actus reus alone, without requiring proof of a culpable mens rea.

Strict liability crimes can be either partial – requiring proof of mens rea for some elements but not others – or complete – dispensing with mens rea entirely.

Furthermore, strict liability crimes can involve conduct that is either malum in se (“wrong in itself”) or malum prohibitum (“wrong because prohibited”).

Our tutorial on this topic contains flow charts and tables that illustrate these concepts and their distinctions. You may find these helpful in memorizing the rules.

Let’s begin by looking at partial versus complete strict liability.

Complete Strict Liability - Some crimes impose strict liability without requiring proof of any culpable mens rea whatsoever. This is called “complete strict liability.”

Partial Strict Liability - Other crimes require proof of a culpable mens rea for one or more elements, but not all. This is called “partial strict liability.”

Hypothetical - You are ticketed for speeding, i.e., for driving in excess of the speed limit. The offense has one element: exceeding the specified speed limit. To establish liability, the prosecutor needs to show only that you in fact exceeded the limit.

Question What type of strict liability does this represent, complete or partial strict liability?

Answer and Analysis Complete strict liability. Most speeding statutes are treated as strict liability offenses. As long as the prosecutor can prove that you exceeded the speed limit (the sole actus reus of the offense), you are guilty even if you did not know, or have reason to know, that you were doing so. Many traffic offenses are of this type.

Our next post on this topic addresses another hypothetical that distinguishes complete strict liability from partial strict liability.

The Law School Experience - These and related topics are covered in our tutorials on Criminal Law.

To explore some of our free materials, go to The Law School Experience.