Ignorance of Wrongdoing and Mens Rea
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IGNORANCE OF WRONGDOING AND MENS REA DOUGLAS HUSAK* Suppose we believe that ignorance of wrongdoing should often absolve wrongdoers from blame, criminal liability and punishment.1 If so, how should this normative belief be reflected in the structure of criminal law? One of many possible solutions is to include ignorance of wrongdoing (when it is exculpatory) within the scope of mens rea. In other words, we might adopt the following thesis: defendants who are unaware their conduct is wrongful do not commit the mens rea of the offense that (otherwise) proscribes their conduct. In this paper I explore what can be said for and against this thesis. I expect most theorists will resist it, and I readily admit that it is likely to have implications that should give us pause. But I believe this thesis also has considerable advantages that are easy to overlook. The particular advantage I will emphasize in what follows draws from dissatisfaction with the most recent Supreme Court decision on the insanity defense. Reasonable minds will differ about whether the advantages of this thesis outweigh its disadvantages. Overall, however, I tentatively conclude that it has a great deal of merit and should be adopted. I start my exploration with positive law, admittedly a curious place to begin to motivate my thesis. After all, this thesis seems clearly contrary to settled doctrine as specified in every penal code of which I am aware. As every student of criminal law has been taught, sec. 2.02(9) of the Model Penal Code (as well as the state codes based upon it) explicitly indicates “Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense unless the definition of the offense or the Code so provides.”2 Since mens rea as defined by the Code is an element of nearly all offenses,3 especially those that are serious, the above statute appears to explicitly contradict the thesis I propose to support. If my reasoning is sound and my thesis is adopted, this provision would have to be amended or even repealed in future drafts of the Code. *Distinguished Professor of Philosophy, Rutgers University. 1 For present purposes, I simply presuppose this belief in order to examine some of its probable implications for criminal theory generally and mens rea in particular. I can hardly defend it here; I have argued for this belief elsewhere. Most recently, see Douglas Husak: “Ignorance of Law: How to Conceptualize and Maybe Resolve the Issue,” in Larry Alexander and Kimberly Kessler Ferzan, eds.: The Palgrave Handbook of Applied Ethics and the Criminal Law (Palgrave McMillan, 2019), p.315. 2 MPC, sec. 2.02(9). 3 MPC, sec. 2.02(1). 1 How, then, might the above statute possibly be construed to offer any degree of support for my thesis? I offer two distinct answers. In the first place, we should recognize that settled law is not nearly as hostile to my thesis as I have suggested. This ambivalence becomes apparent by focusing on the final clause of this provision, which adds “…unless the definition of the offense or the Code so provides.”4 Pursuant to this clause, ignorance of law is an element of the offense when particular statutes or the Code so specify. How widespread are the exceptions governed by this “unless” clause? Perhaps surprisingly, quite a few statutes do include language that (explicitly or implicitly) makes knowledge that conduct is unlawful a statutory element. As far as I can discern, no clear principle explains why or when statutes should or should not include this language. In any event, positive law does recognize ignorance of law as a mens rea “defense” in a remarkable number of cases.5 If the proposition that ignorance of wrongdoing is immaterial to mens rea were so straightforward and obvious, commentators should wonder why so many penal statutes explicitly or implicitly provide otherwise. A slightly facetious but more accurate statement of positive law would be “ignorance of law is not material to mens rea unless it is.” The sheer number of exceptions to the generalization in sec. 2.02(9) is only the first and most direct piece of evidence for my thesis. Notwithstanding the raw quantity of offenses that fall within its “unless” clause, philosophers of criminal law should also demand a rationale for this statute. Why is awareness of the law typically outside the scope of mens rea? Why does 2.02(9) state the rule to which exceptions are governed by an “unless” clause instead of the other way around? Frankly, I do not know. Curiously, the Commentaries are nearly silent on this fundamental question. They describe the Code’s treatment of mens rea as “elegant” and “innovative,” both of which are clearly true. What the Commentaries do not describe, however, is the normative basis for taking this novel step. At any rate, awareness of the material facts is clearly within the ambit of mens rea as it is construed by commentators as well as the Code. Moral philosophers are likely to puzzled by this feature of orthodox law when they first confront it. To moral philosophers not steeped in criminal theory, mistake of fact functions as an excuse for wrongdoing. Indeed, mistake of fact probably serves as the paradigm case of an excuse. Thus an individual who lacks what the Code defines as mens rea seemingly engages in wrongful conduct, but is not blameworthy for doing so. The Code, however, famously declines to follow this position. Instead, an individual who lacks what the Code defines as mens rea does not engage in conduct the Code identifies as wrongful in the first place. For example, an individual who takes a coat, mistakenly believing it to be his own, does not possess a legal excuse for theft. His basis of exculpation is more basic.6 4 Id. 5 It is because they fail to satisfy a material element of penal statutes that I have called the absence of mens rea as a “defense” rather than as a (true) defense. See Paul H. Robinson: “Criminal Law Defenses: A Systematic Analysis,” 82 Columbia Law Review 199 (1982). 6 I describe and challenge the sense in which this basis of exculpation is more basic in Douglas Husak: “The Serial View of Criminal Law Defenses,” 3 Criminal Law Forum 369 (1992). 2 He needs no excuse, because he has not engaged in theft at all. Thus criminal theorists propose a very different way than moral philosophers of conceptualizing the exculpatory significance of mistake of fact. Moral philosophers who believe that our individual possesses an excuse for mistakenly taking someone else’s coat are almost certainly committed to a contentious view about how to identify the content of wrongful conduct. Excuses, after all, are generally regarded as extraneous to the content of wrongs. Thus theft is not defined as “taking someone else’s property unless the taker is mistaken or otherwise excused.” The content of the wrong is unqualified; theft is defined as taking someone else’s property simpliciter. If I can safely generalize from this example, the content of moral wrongs is (usually) strict; it does not include mens rea. To be sure, culpable states such as mens rea are requirements of fault, but they are not requirements of wrongdoing. Of course, the absence of excuses, too, are requirements of fault. So the fundamental question is why penal offenses include some features that are requirements of fault (viz., mens rea) and treat them as elements of offenses, but exclude other features that are requirements of fault (viz., the absence of excuses) and recognize their exculpatory force as wholly extrinsic to the content of offenses rather than as elements of offenses. Expressed somewhat differently, the basic question is why the Code departs from the approach I have said to be presupposed by most moral philosophers. For my purposes, it is instructive to divide this question into at least two parts, the components of which are not always contrasted. First, why make mens rea an element of offenses? Second, if mens rea is made an element of offenses, why define it to extend only to mistakes of fact and not to other exculpatory claims, most notably to mistakes of law? Consider the second of these questions. If mens rea is to be construed as an element of offenses, why should ignorance of fact but not ignorance of law generally fall within its parameters? The difficulty of providing a satisfactory answer to this question can be illustrated by recalling Sandy Kadish’s famous hypothetical involving Mr. Fact and Mr. Law, two persons who hunt on April 30, even though the hunting season does not begin until May 1. If Mr. Fact believes the date to be May 1, his mistake of fact might well provide a mens rea “defense.” If, by contrast, Mr. Law believes the hunting season begins April 30, his mistake of law does not provide a mens rea defense---nor, indeed, a defense of any kind. Why should mens rea be construed to allow this radically different treatment of Mr. Fact and Mr. Law? In my experience, when this example is first presented to students, nearly everyone agrees that Mr. Fact and Mr. Law should be treated symmetrically. I concur with this sentiment and think that criminal theorists should do so as well. If the substantive criminal law should treat mistake of fact and mistake of law symmetrically, reformers are likely to be left with only two options.