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Missing Mens Rea

Missing Mens Rea[I know what you’re this is another boring technical article filled with big legal words. No, it’s not, read on and quit being a hater.]

To commit a crime, you must “intend” to commit a crime, right? Well, maybe.

Different crimes carry different levels of mental mindsets, and there are five basic ones, 1) purpose/intent, 2) knowledge, 3) recklessness, 4) negligence, and 5) none / strict liability. This means that sometimes you really have to think about committing a crime and have guilty knowledge, but other times, you need not have much guilty knowledge at all (kind of unfair, I know). Unfortunately, the legislative trend seems to be towards crimes that do not require guilty knowledge (number 5, strict liability). These newer crimes do not require much in the way of a mental state, which means that, if you “do it”–you’re guilty–whether you intend to do so or not.

DUI manslaughter is a good example of a crime that mixes a few different mental elements. To prove DUI manslaughter, the state need not prove any intent to “kill” someone, they need only prove that you drove a car under the influence and caused a death. Intent to kill is not required.

Drug possession cases in Florida do not require guilty knowledge, and thus Florida’s possession of a controlled substance offenses have elements of strict liability. For example, Florida’s removal of the knowledge requirement (See Fla. Stat. 893.101) could affect mail delivery personnel. Think about it, a mailman can be found guilty of Delivery of a Controlled Substance for the drugs found in mail packages because our law does not require that the mailman actually “know” that the package contains drugs. Our law only requires 1) “delivery” of the package, and 2) the package contained drugs. Seems kind of wrong, doesn’t it? It is wrong, but it’s “legal” under Florida law (for now, that is, this issue is pending before the Florida Supreme Court, so we’ll see how it goes).

By removing mens rea, our Florida drug laws can lead to absurd results. In the example above, the ignorant postal worker could not be convicted of simple possession of a controlled substance because he was unaware of the presence of the drugs–but he could be found guilty of the more serious delivery of a controlled substance offense, even though he did not know of the presence of drugs! Hopefully, our Florida Supreme Court will sort this out soon.

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