Malum in Se versus Malum Prohibitum - Some strict liability crimes are considered malum in se (inherently wrong), while others are deemed malum prohibitum (wrong only because they are prohibited by law).

What is an example that distinguishes the two?

And what does this have to do with strict liability?

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Overview - In some states, the strict liability crime of bigamy used to require proof of an intention to marry, but did not require any mens rea as to the defendant's awareness (or lack thereof) that he or she was still married to a previous spouse.

Some strict liability crimes are considered malum in se (inherently wrong), while others are deemed malum prohibitum (wrong only because they are prohibited by law).

Distinguishing Malum in Se from Malum Prohibitum - Although the distinction is somewhat slippery, these concepts are helpful in distinguishing between traditional and modern forms of strict liability.

Most of the core common law crimes ( murder and manslaughter, arson, rape, theft, etc.) are considered to be malum in se, because in most cases it should be obvious to the ordinary person that his conduct is wrong. (Of course, in law school you usually cover the cases on the margin, where it is less clear whether the conduct should be treated as wrong.)

By contrast, crimes that are malum prohibitum usually involve conduct that is not considered self-evidently wrong, but is made illegal for public welfare or regulatory purposes.

Question Is exceeding the speed limit by five miles an hour an example of an offense that is malum in se or malum prohibitum?

Answer and Analysis - Malum prohibitum. Speeding by a modest amount is not inherently wrong, but is prohibited for reasons of public safety.

What is the Relevance of Malum in Se versus Malum Prohibitum? What does all of this have to do with strict liability?

Traditional common law types of strict liability involved malum in se offenses, while most modern forms of strict liability are public welfare offenses that are malum prohibitum.

We will see the consequences of this distinction as we proceed through the remainder of our posts on strict liability, particularly when we review the Supreme Court's treatment of strict liability statutes.

Our tutorial on this topic includes flow charts and other visuals that may help you learn and memorize these rules in a time-effective manner.

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.