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In German law, there is a legal construct called "Tatbestandsannex" or "objektive Bedingung der Strafbarkeit". These are necessary conditions for criminal liability for which no corresponding mens rea is necessary. An example would be § 231 I StGB ("participation in a brawl"), which requires that the brawl resulted in grievous bodily harm or a death for it to be punishable. However, the participants need not have mens rea with regard to the grievous bodily harm/death.

Are there crimes in US law (federal or any state) where the objective element contains conditions which don't have to be covered by mens rea? Is there a technical term for this?

  • I couldn't find any more suitable tag and can't create new ones. Please feel free to add/edit tags. – G. Bach Apr 7 '16 at 16:15
  • I added a mens-rea tag and modified the title...if that changed your question in the wrong way, just let me know so we can undo it – Pat W. Apr 7 '16 at 16:38
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If I'm reading your question properly, you're referring to strict liability. This tends to apply element-by-element and means you needn't prove mens rea with respect to that particular element.

Since penal codes vary from state to state, it can be difficult to find consistent examples of strict liability crimes. That said, parking tickets are often held out as being strict liability offenses. Another---and this does vary widely by state---is statutory rape.

One reason strict liability crimes are rare stems from United States v. Freed, 401 U.S. 601 (1971), where an important issue was whether the object was so dangerous to public safety as to put everyone on notice via strict liability.

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    Ah, that's why I didn't find it - German law has a separate term for strict liability in civil law called "Gefährdungshaftung", and the German wikipedia entry for that would've led to strict liability. I'm surprised to hear it appears in law governing sexual offenses; is strict liability widespread in that area of US law? – G. Bach Apr 7 '16 at 16:42
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    Statutory rape has gained traction (somewhere around 20 states if memory serves)... – Pat W. Apr 7 '16 at 17:02
  • Almost every state has some form of statutory rape. Frequently statutory rape has two tiers. One, which applies to adolescents, has reasonable mistake of age as a defense. A second one, which applies to pre-pubescent children, is a strict liability offense with respect to knowledge of age of consent. The idea is that if you have sex with a twelve year old, you could not reasonable believe that the child is of the legal age of consent (often 16 or 17 years or 18 years old), even if you could reasonably believe that they were 13 instead of 12. Some states have only the first tier and some both. – ohwilleke Dec 5 '16 at 8:31
  • What's worse, suppose a twelve year old pointed a gun at an adult and thus raped the adult. Under strict liability, the adult would still be guilty of "statutory rape" even the s/he was the victim. Apparently, reasonable fear of life or bodily harm is not necessarily a defense. – Libra Jun 20 '18 at 22:10
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For a perspective on a different jurisdiction, NSW, Australia, see http://www.findlaw.com.au/articles/4487/criminal-law-mens-rea-and-the-guilty-mind.aspx

Mens rea is a common law doctrine inherited from English law and applies to common law crimes. In NSW, most common law crimes are now dealt with by statute, most notably the Crimes Act 1900 although many other statutes also detail criminal offences. The state of the law here is:

In R v Wampfler, the justices in the New South Wales Court of Criminal Appeal, used the judgment from the High Court in He Kaw Teh v The Queen as a basis, stated that for the purpose of considering criminal intent, statutory offences fall into the following categories:

  • the obligation is on the prosecution to prove mens rea, which is the original obligation

  • offences in which mens rea is presumed to be present, unless, and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal, then it is the responsibility of the prosecution of negativing such a belief beyond reasonable doubt

  • the guilt of a person is established by the objective ingredients of the offence, and mens rea has no part in the committing of the offence.

So, in addition to the categories where mens rea is required to be proved by the prosecution and the category of strict liability, there is a third category where the actions allow the assumption of mens rea and the defence is obliged to overcome that assumption. Which crime falls into which category depends on the wording of the statute and precedents.

Some examples:

  • murder is a crime where mens rea needs to be proved by the prosecution,

  • drink driving is a crime where mens rea can be presumed by the prosecution but may be rebutted by the defence,

  • breach of work health and safety law is a strict liability offence - mens rea is irrelevant.

  • Interesting - I had only been marginally aware that an assumption of mens rea exists for some actus rei in German law (according to some rulings, drunk driving §316 StGB is one); the technical term appears to be "praesumptio doli". Can you give any examples of crimes that fall in the second and third category in NSW? – G. Bach Apr 8 '16 at 7:48
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    Drink driving falls into the second. Work Health and Safety breaches for persons controlling a business or undertaking fall into the third. – Dale M Apr 8 '16 at 8:07

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