Strict Liability Crimes

In prior posts, I discussed transferred intent and criminal negligence. Intent and criminal negligence, along with malice and willfulness are some of the common states of mind that the prosecution must prove beyond a reasonable doubt to obtain a criminal conviction. With strict liability crimes, the prosecution’s case is easier. Strict liability crimes do not include a mental state as an element of the offense. To obtain a conviction for a strict liability crime, the State need only prove that the defendant committed the prohibited act. Also, certain defenses are unavailable for strict liability offenses. See, e.g., State v. Harris, 171 N.C. App. 127, 131 (2005) (voluntary intoxication is not a defense to a strict liability crime).

Identifying strict liability statutory offenses would be easy if the General Assembly expressly identified crimes as strict liability offenses. However, that does not happen. When a statutory offense is enacted and omits a mental state as an element, the courts must determine whether the legislative intent was to create a strict liability crime. State v. Watterson, __ N.C. App. __, 679 S.E.2d 897, 899 (2009) (“Whether a criminal intent is a necessary element of a statutory offense is a matter of construction to be determined from the language of the statute in view of its manifest purpose and design.”). The North Carolina courts have had several occasions to undertake such an analysis. Among the crimes that our courts have identified as strict liability offenses are:

• G.S. 14-27.2 (first-degree statutory rape). State v. Anthony, 351 N.C. 611, 616 (2000); State v. Rose, 312 N.C. 441, 445 (1984); State v. Ainsworth, 109 N.C. App. 136, 145 (1993) (“Criminal mens rea is not an element of statutory rape.”).
• G.S. 14-27.4 (first-degree statutory sexual offense). See Anthony, 351 N.C. at 616-18.
• G.S. 14-27.7A (statutory rape or sexual offense of a person who is 13, 14, or 15 years old). Anthony, 351 N.C. at 616-18; State v. Browning, 177 N.C. App. 487, 491 (2006) (“Statutory rape under [G.S.] 14-27.7A is a strict liability crime.”); State v. Sines, 158 N.C. App. 79, 84 (2003).
• G.S. 14-269.2 (posses or carry weapons on campus or other educational property). State v. Haskins, 160 N.C. App. 349 (2003).
• G.S. 14-288.8 (possession, etc., of a weapon of mass death and destruction). Watterson, __ N.C. App. __, 679 S.E.2d at 899-903 (the State was not required to prove that the defendant knew the physical characteristics of the shotguns that made them unlawful (barrels of less than eighteen inches)).

Although failure to comply with sex offender registration requirements under G.S. 14-208.11 was at one time interpreted as a strict liability crime, State v. Bryant, 359 N.C. 554, 562 (2005), the statute has been amended, S.L. 2006-247, sec. 8(a), and now requires that the defendant act willfully.

Strict liability crimes often are thought of as minor offenses with relatively light punishment in the area of public health, safety and welfare. However, as the above list indicates, North Carolina’s strict liability crimes include felonies that carry significant punishment. See Watterson, __ N.C. App. __, 679 S.E.2d at 903 (noting that the General Assembly has imposed “fairly harsh” punishments for strict liability offenses). The courts have rejected policy arguments that strict liability should not attach for serious crimes, indicating that such arguments more appropriately are addressed to the General Assembly, the state’s lawmaking body. See Anthony, 351 N.C. at 618; Browning, 177 N.C. App. at 493-94.

The United States Supreme Court has recognized that legislatures may enact strict liability crimes. Lambert v. California, 355 U.S. 225, 228 (1957) (“conduct alone without regard to intent of the doer is often sufficient” for criminal liability; “[t]here is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition”). In North Carolina, constitutional challenges to the imposition of strict liability have failed. Haskins, 160 N.C. App. at 353 (rejecting the defendant’s argument that without a mens rea element, G.S. 14-269.2 violates Equal Protection); Ainsworth, 109 N.C. App. at 145 (rejecting the defendant’s argument that the constitution requires that statutory rape include some mens rea). However, when the strict liability crime involves wholly passive conduct, due process may require that the defendant have notice of the criminality of his or her conduct. Bryant, 359 N.C. 554 (regarding G.S. 14-208.11, which at one point was a strict liability crime).

If a defendant is prosecuted as an aider and abettor to a strict liability crime, a mental state is required. Put another way, “North Carolina case law does not support a theory of vicarious strict liability.” State v. Bowman, 188 N.C. App. 635, 649 (2008) (“[a]lthough statutory rape is a strict liability crime, aiding and abetting statutory rape is not”). Thus, in Bowman, 188 N.C. App. 635, the court of appeals held that the trial court erred by denying the defendant’s request for an instruction that defendant had to know the age of the victims in order to be convicted of aiding and abetting statutory rape. If the defendant is prosecuted for an attempt to commit a strict liability crime, the elements of attempt require intent. Sines, 158 N.C. App. at 85. However, the intent element for an attempted strict liability crime appears to be less stringent than the intent element for aiding and abetting a strict liability crime. In Sines, 158 N.C. App. 79, for example, the court of appeals stated that to be convicted of attempted statutory sexual offense, the defendant must intend to engage in a sexual act. Sines held: attempted statutory sexual offense does not require that the defendant intended to commit a sexual act with an underage person, but only that defendant intended to commit a sexual act with the victim; thus, a defendant’s knowledge of victim’s age or victim’s consent are not defenses to the crime of attempted statutory sexual offense. Id. at 85.