Strict Liability

Strict liability refers to legal responsibility without fault. If a law holds X responsible for an injury she accidentally caused Y, when X could not reasonably have foreseen she would hurt Y, that law imposes ‘‘strict liability’’ on X. In some areas of law, strict liability is commonplace and widely accepted—for example, in civil lawsuits concerning personal injuries caused by defective products. In the criminal law, however, strict liability is a controversial exception to the rule that liability requires a blameworthy state of mind.

A common version of statutory rape, which criminalizes having sex with a person below the age of consent, provides an example of criminal strict liability: the defendant is guilty even if he reasonably (but mistakenly) believed the individual was older than the age of consent. Other examples include felony murder, in which a defendant is guilty of murder for any death that results from the commission of a felony, and so called ‘‘public welfare offenses,’’ which impose strict liability in the business context and criminalize such things as accidentally selling adulterated meat or mislabeled drugs.

Most United States jurisdictions do have some strict liability crimes. Before the latter half of the nineteenth century, strict liability was largely limited to crimes in which the defendant was at least aware that he was doing something wrong, as in the example of felony murder. The strict liability offenses in which the defendant accidentally causes some harm while believing that he was engaging in innocuous conduct are a product of the last 150 years.

Strict liability has endured generations of academic criticism. Critics charge that strict liability is both unjust to those it punishes and ineffective in combating crime. Because the individual, by definition, could not have been expected to realize he might cause harm, the argument runs, he is not morally blameworthy. Moreover, critics reason, the threat of criminal punishment cannot deter a person who could not realize he was causing harm, and imprisonment to prevent future crimes is unnecessary in such circumstances.

Advocates of strict liability counter that strict liability can promote the greatest level of care and that people who commit strict liability crimes ‘‘assume the risk’’ by their conduct, be it engaging in sexual intercourse outside of marriage (in the case of statutory rape) or entering certain businesses involving closely regulated products (in the case of public welfare offenses). Strict liability defenders also contend that prosecutors can be trusted to use their discretion to pursue only those cases in which the defendant ‘‘really’’ deserves to be punished.

The Supreme Court has refused to declare strict liability unconstitutional in the criminal law, striking strict liability statutes only occasionally. The Court’s decisions do, however, follow a consistent pattern: when the legislature could properly criminalize the intentional conduct included in the crime, adding a strict liability element is constitutional. For example, imposing strict liability for selling alcohol to a minor is constitutional because the legislature could prohibit selling alcohol completely. On the other hand, strict liability is unconstitutional when the conduct could not be criminalized without the strict liability element. For example, the Court struck down a statute that criminalized selling books containing obscene material even when the seller reasonably thought the books had no such contents. This result fits the rule, because a statute that criminalized selling books completely would not be constitutional.

ALAN C. MICHAELS

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