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Rethinking the Presumption of Mens Rea

Eric Alan Johnson

University of Illinois College of Law

April 12, 2012

Wake Forest Law Review, Vol. 47, No. 4, 2012
Illinois Public Law Research Paper No. 11-25

This paper answers a question that has divided courts and scholars, namely: To which elements of a criminal offense does the traditional presumption of mens rea apply? Scholars long ago settled on the view that the presumption applies to every objective element — every proscribed result, for example, and every attendant circumstance. Courts, on the other hand, usually have held that the presumption applies only to elements that “make the conduct criminal” and not to elements that make the conduct a more serious offense. In this paper, I will argue that both views are problematic and that the right answer to the question of the presumption’s scope lies somewhere in between. The right answer, as Justice Stevens once suggested, is that the presumption of mens rea applies to every element except those designed exclusively to measure the degree of harm inflicted by the actor’s conduct. The reason why this is the right answer is that elements designed to measure instead the risk posed by the defendant’s conduct ordinarily cannot perform their function — cannot tell us anything about the wrongfulness of the actor’s conduct — without being assigned a mental state.

Number of Pages in PDF File: 29

Keywords: criminal law, mens rea, strict liability, statutory interpretation, general intent

JEL Classification: K14

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Date posted: April 12, 2012 ; Last revised: June 15, 2012

Suggested Citation

Johnson, Eric Alan, Rethinking the Presumption of Mens Rea (April 12, 2012). Wake Forest Law Review, Vol. 47, No. 4, 2012; Illinois Public Law Research Paper No. 11-25. Available at SSRN: http://ssrn.com/abstract=2038958

Contact Information

Eric Alan Johnson (Contact Author)
University of Illinois College of Law ( email )
504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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