Negligent Knowledge of the Law

-- By ZebulunJohnson - 19 Feb 2016 This paper assumes at least a novice understanding of the Model Penal Code’s philosophy and workings.

Introduction

Better that ten guilty persons escape than that on innocent suffer.

Ignorantia juris non excusat.

Why does the Model Penal Code (MPC) regard a mistake of fact as exculpatory but not a mistake of law? The primary answers to this question tend to focus on either the discouragement of willful ignorance or the difficulty of proving knowledge. However, as Blackstone’s formulation suggests, the criminal law system should be based on theories of justice. This is why the criminal legal system requires culpability: it is an attempt to ensure that criminal liability falls only on those at fault for their conduct. By basing the maxim that ignorance of the law is non-exculpatory (as well as non-mitigatory) on policy reasons, these rationales presume the blameworthiness of legal ignorance without examining issues of justice or fairness.

In this essay, I hope to show that the theories of fairness embodied in the MPC are inconsistent with a general non-exculpability of legal mistake. An approach more consistent with the MPC’s current theories is a defense of legal mistake if the defendant acted reasonably and with no intent to harm.

Intent: The Difference between Ignorance of Fact and Law

§2.04 of the MPC only exculpates from unintended harm. This principle, the lack of an intent to cause harm, is the rationale behind reducing culpability due to ignorance of fact, as it negates the mens rea of causing the harm. As an example, if Sally and Harry both have identical laptops, and Sally takes Harry’s laptop by mistake, she is not culpable for theft because she had no intent to cause harm to Harry through her actions.

By extending this rationale to ignorance of law, we gain a consistent rationale for holding a large subset of ignorance of law as non-exculpatory: a mistake of law with an intent to harm is non-exculpatory because it does not negate the mens rea. Thus, if Sally purposefully takes Harry’s laptop, but believes that the law does not criminalize her behavior, she is culpable for theft because she intended to cause harm to Harry through the theft.

However, this raises the question of whether ignorance of the law that negates the mens rea requirement is exculpatory. At a minimum, the MPC allows ignorance to be exculpatory when the legislature allows it to be. Thus, in the tax code of several states, we see the term “willful” appear. In these contexts, “willfulness” adds a requirement of legal knowledge to culpability. The rationale behind willfulness is that the legislature does not wish to punish “good faith efforts” to comply with the law.

Why then, does the criminal system punish good faith efforts to comply with the law in other contexts?

Good Faith and Reasonableness

The most immediate concern with making good faith exculpatory is its subjectivity. Once again, imagine that Sally purposefully takes Harry’s laptop, believes that the law does not criminalize her behavior, and believes that it is her legal duty to take Harry’s laptop. Clearly, this does not exculpate Sally’s behavior. In this case, subjective good faith effort does not negate the mens rea, and the criminal justice system should punish Sally.

This conclusion is based on an appeal to reasonableness. The MPC already carves out a limited defense of legal ignorance based on reasonable belief in cases of inaccessibility of the enactment or reliance on official interpretation of the law. Sally’s good faith effort to follow her legal duty fails because no reasonable person would believe in a duty to steal. To state it another way, the MPC carves out limited exceptions to the non-exculpatory nature of legal ignorance based on a non-negligent belief.

Reasonable Legal Mistake and Lack of Intent to Cause Harm as a Legal Defense

By using terms such as “good faith” and “reasonable belief,” the MPC accepts the idea that sometimes people are not blameworthy for their ignorance. Yet few rationales based on justice are offered as to why reasonable ignorance of the law is punished in some instances but not all. If legal ignorance itself is blameworthy, and the tax code is exempted due to its complexity, then the assumption is that the rest of the legal system is simple enough that it is blameworthy to not know it. If reliance upon official interpretation or inaccessibility is based on an idea of fair warning, then the assumption is that citizens have ways to easily access not only statutes, but also judicial interpretations of statutes. An analysis as to whether these are true is outside the scope of this essay, but I feel fairly certain in assuming neither of them hold together under scrutiny.

To address this inconsistency in the MPC, I propose the following: take the rationale behind the defense of ignorance of fact (intent to cause damage) and qualify it with a reasonableness standard. Thus, ignorance of law defenses where the defendant did not mean to cause damage and his legal ignorance was reasonable should be exculpatory. This should prove an inclusive framework for determining culpability in terms of justice for ignorance of law.