Mistake of Fact or Mistake of Criminal Law? Explaining and Defending the Distinction

Criminal Law and Philosophy, Vol. 3, 2009

Boston Univ. School of Law Working Paper No. 08-32

36 Pages Posted: 20 Nov 2008  

Kenneth W. Simons

University of California, Irvine School of Law; Boston University - School of Law

Date Written: November 17, 2008

Abstract

This article makes six points. First, under any plausible normative perspective, the distinction between mistake (and ignorance) of criminal law and mistake of fact must at least sometimes be drawn. Second, the fundamental distinction is between a mistake about the state's authoritative statement of what is prohibited ("M Law"), and a mistake about whether that prohibitory norm is instantiated in a particular case ("M Fact"). Third, when an actor makes a mistake about an evaluative criterion whose content the fact-finder has discretion to elaborate, it is impossible both to allow this discretion and to faithfully realize a jurisdiction's policy of treating M Fact and M Law differently. Fourth, the claim that every unreasonable M Fact is really a M Law elides important differences between the two kinds of mistake. Fifth, various borderline objections, such as the famous Mr. Fact/Mr. Law example, do not undermine the fundamental distinction, although in rare instances, they do constitute genuine counterexamples that do not effectuate the principles and policies that the distinction ordinarily serves; and even here, they are exceptions that prove (the rationale for) the rule. Sixth, specification or evolution of a criminal law norm, such as the criterion for nonconsent in rape law, can convert a legally relevant M Fact into a legally irrelevant M Law. This phenomenon does not undermine the fundamental distinction between these types of mistake; to the contrary, it reveals the significance of that distinction.

Keywords: Mistake of law, Mistake of fact, Crime, Punishment

JEL Classification: K14

Suggested Citation

Simons, Kenneth W., Mistake of Fact or Mistake of Criminal Law? Explaining and Defending the Distinction (November 17, 2008). Criminal Law and Philosophy, Vol. 3, 2009; Boston Univ. School of Law Working Paper No. 08-32. Available at SSRN: https://ssrn.com/abstract=1303049

Kenneth W. Simons (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Room 3800H
Irvine, CA 92697-1000
United States

Boston University - School of Law

765 Commonwealth Avenue
Boston, MA 02215
United States

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