If you don’t have much to do at the moment perhaps you want to read about the proposed mens rea reform.  Perhaps that topic might sound just a bit esoteric if not downright boring, but I venture to say that it may prove to be one of the more important measures discussed among legal scholars and legislators.

Presently, if you haven’t been the “recipient” of a criminal charge, many laws and regulations issued by agencies do not have any “mental state”  or “guilty mind” attached to them.  That means you can be prosecuted even if you did not know you were violating the statute or regulation.  Under a proposed statute applying to laws and regulations carrying criminal penalties, the government, before it could convict someone, must prove that the act was done knowingly by a person.

Without this adjustment American law and especially regulatory agencies would continue to prosecute individuals and businesses without regard to whether they intended or could have intended to violate a law or regulation.  This is very like strict liability law which began to be popular in the 1960s.  Stories abound of the abuses of this approach, which may or may not be unintended in every case.  For example, in 2011, an 11-year old girl in Virginia noticed that a baby woodpecker was about to be eaten by a cat, and rescued it, kept it for two days to be sure it was not injured, and then let it go.  While mother and daughter were purchasing food for the woodpecker, they accidentally encountered a wildlife officer who informed them that the woodpecker was an endangered species.  A few weeks later the mother received a $535 dollar fine.  Note that there was no hearing before this fine, and especially that the girl or her mother did not know it was an endangered species or that it was a violation of law to “transport” such a species somewhere other than its habitat—say, for example, to save it.  Aside from being really stupid for the agency to even bother with a prosecution—and really bureaucratic in the worse sense of that maligned term—the fact that there was no mens rea required to be shown, seems patently unjust.

Now some have complained that adding a mens rea requirement would end up letting many big corporations off the hook in environmental cases.  But a recent law review article dispels that notion.  In examining environmental regulations, the article in the Harvard Environmental Law Review (volume 38, 2014), the author, David Uhlmann, indicated that most of the environmental cases liberals were so concerned about actually already included “aggravating factors,” such as repeat violations, deceitful and misleading conduct, etc.  So a requirement of mens rea would not appreciably change current law in that area, if at all.  The liberals then have nothing to complain about.

Moreover there is I believe a strong argument on justice grounds for requiring a guilty mind.  If a person commits an act, can that person in some sense be said not to have committed the act since they did not know it was a criminal violation and could not have reasonably known that?  Of course physically they committed the act.  But it would appear unjust to punish a person if they did not have an intent.  Criminal acts have traditionally been associated with some evil disposition, not with accidental behavior.  Moreover the punishment under the criminal category as it exists without a mens rea would seem to be completely disproportionate to our notions of what is due as a matter of justice.  In justice and” eye for an eye” is taken to mean the “punishment fits the crime.”  But to fine or even imprison someone who is not aware or would not reasonably be expected to be aware, is disproportionate.

Christians could embrace this kind of reform also, as it most certainly comports with a Biblical idea of justice in the public or civil realm.  My hope is that the reform movement will not be undermined by specious arguments.