Type 1 Summary of Yaffe
In 2016 Congress attempted to pass a criminal justice reform bill which did not get voted on for many reasons, one of which was a provision that would reform mens rea requirements. The provision had two parts. The first was a default mens rea provision which stated that “statutes silent on mens rea, that were not explicitly identified as strict liability by the legislature, would be taken to require for guilt proof of knowledge with respect to each material element” (Yaffe 394–395). The second was a knowledge of illegality provision which stated that “a fairly narrowly identified class of crimes would be taken to require for guilt proof of knowledge of the illegality of one’s conduct” (Yaffe 395). Yaffe focuses on the default mens rea provision, ultimately arguing that the default mens rea provision deserves bipartisan support.
Both the supporters of the default mens rea provision and those who oppose it can use the numerical argument to justify their position. Some acquitals would turn into convictions and some convictions would become acquittals. Some of these changes are good and others bad, depending on who you ask. Because of this, the numerical argument can only move forwards if there is a focus on the “relaive value and disvalue of hits and misses” (401). Yaffe describes the mens rea principle as “the claim that a conviction is unjustified when the offender lacks mens rea” (Yaffe 401). Yaffe defines the hit rate as the percentage of verdicts that conform to the mens rea principle, according to which conviction is only justified if the defendent has mens rea. Yaffe defines the miss rate as the percentage of verdicts that violate the principle by acquiting somoen culpable or convicting someone who isn’t culpable (Yaffe 401). Yaffe concludes that the only thing that can progress the numerical argument is the support of undebatable claims like the relative value and disvalue of hits and misses
Yaffe then identifies a class of crimes where strict liability is appropriate, specifically focusing on how the structure of these crimes favors strict liability. There are three requirements of this category of crimes. First, the crime must be harmful. Second, the false acquittal must cause harm. Third, the harm caused and the harmful false acquittal must be closely related so that the harmful false acquittal makes the crime more harmful (Yaffe 406). In this category of crime, “criminal behavior is more wrongful in virtue of the fact that the offender escaptes conviction for it” because of the harms of absence of condemnation of that behavior. Yaffe gives the example sex crimes against children under 10 years old to demonstrate the additional harm caused. Predators often convince their victim that there is nothing wrong with this behavior and when the state allows a predator to be acquitted because a required guilty state could not be proven, it confirms the message that the predators tried to convey to the victims. In fact it magnifies the predator’s lie, that this behavior is not wrong, thus contributing to the harm. Overall, Yaffe argues that the default mens rea provision should be enacted, but that there needs to be an exception for the category of crimes where a mens rea requirement increases the amount of false acquittals, which magnify the harm itself. Another kind of crimes that should be excluded from the default mens rea provision would be those that greatly increase the burden of proof in order to convict on the prosecutor as this would lead to an increase in fall acquittals of those who have mens rea that is impossible to prove. These two kinds of cases are a very small portion of crimes, so excluding these categories, the default mens rea provision should be enacted.
Circling back to the inital proposed piece of legislation, Yaffe addresses the shortcomings in both proponents and opponents arguments which rely heavily on the numerical arguments. Yaffe takes issue with those who think that corporate criminals shouldn’t have mens rea requirements because a corporation cannot have a guilty state, for example. He believes that this argumentative angle is problematic because the only way to justify the conviction of corporations is to prove mens rea of the corporation. If those who oppose the provision want corporate convictions to be justidied, then you have to prove mens rea. Additionally, the profitability characteristic of corporate crimes makes the category of white collar crimes a good candidate for strict liabilty because the company is profiting literally at the expense of all of those effected by dumping chemicals etc. In conclusion, the default mens rea provision should be enacted not because it makes things better but because the question of whether it makes things better is only relevant in a narrow class of crimes.
Yaffe, Gideon. “Mens Rea by the Numbers.” Criminal Law and Philosophy, vol. 12, 14 July 2017, pp. 393–409.
