America Abandons a Key Tenet of the Common Law: The Deletion of the Intent Requirement In Creating Criminal Laws in America:
America has for some time now been abandoning the Common Law, or an important piece of it anyway, to the detriment of society and the rights of mankind. America, both federally, state-wide, and locally has done this through it's abandoment of the requirement of mens rea in legislating crimes. As William Blackstone wrote in 1765, in his highly influential "Commentaries of the Laws of England," an exposition of the English Common Law, which was adopted by the states of America,
"To make a complete crime cognizable by human laws, there must be both a will and an act. For though ... a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vicious will, without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such a vicious will."
In other words, every crime, in order to be considered a crime and thus a just law, must have 3 key required parts in order for it to be considered a just and valid law; it must first describe the act to be forbidden, followed by an exact punishment for the committing of the act, which is to be apportioned to the type of crime committed; but even more important than these 2 requirements, is the requirement of intent, or mens rea in legal terms. Thus, in order for an individual to be convicted of a crime, there must first be an act, or actus reas, as well as an intent to commit the crime, or mens rea.
Elder H. Verland Andersen, a General Authority of the LDS Church and a professor at BYU, who taught business law for many years, and who was a UT legislator for the state legislature, put it more succintly in his marvelous book, "The Moral Basis of A Free Society." He wrote in chapter 6,
"One of the natural laws discussed in Chapter III decrees that government must punish the intentional violation of duties in order to protect human rights. This function is performed under the criminal laws and we shall use the term “criminal law” to mean every law, ordinance, regulation or court decree which commands or forbids human conduct and provides a punishment for disobedience. It is the provision for a penalty which distinguishes a criminal law from laws of other types.
According to the foregoing analysis, we may formally define a criminal law as:
A decree or enactment by the state which commands or forbids certain conduct and provides an adequate penalty for disobedience.
The only penalties which have been found to be adequate are: (1) Death or bodily injury; (2) Imprisonment or some other denial of liberty; (3) A fine or some other deprivation of property or property rights.
According to this statement, there are two essential elements to every crime: (1) A vicious will, and (2) An act committed to accomplish it. Let us now define a crime according to the natural laws developed in Chapter III and then compare it with Blackstone’s Common Law definition.
The first two natural laws stated that government must, (1) Punish the intentional violation of duties; (2) Punish nothing except the intentional violation of duties. If these laws are obeyed, government can inflict punishment for a crime only where there is both an intent to violate a duty and an act to accomplish it. But if an “intent to violate a duty” means the same as “a vicious will,” then the definition of a crime according to our natural laws is the same as that at common law. In any event a wrongful intent is required in both cases."
This is the Common Law of England, adopted in America by the states and by the federal government where the federal government is constitutionally allowed to legislate crimes accoridng to its enumerated powers. However, as of late, it has been substantially abandoned by America, both in the states and federally, to be replaced by crimes that ban certain acts with a punishment attached by lacking the requirement of intent. The requirement of intent in criminal law is a sacred protection of the rights of the accused, one whcih has been thrown out carelessly by the American government. Every one of us in America, given the abaondment of the requirement of intent in criminal law, commits some sort of crime at least once in our life, if not more, and mostly unknowingly. The abandonment of the requirement of intent in criminal law has lead to the overcriminalization of law in America, creating criminals of every American citizen and resident. But the problem is, according to Natural Law and the Common Law, which in this case are one, we are not criminals unless we had an intent to commit the act that is banned and considered a crime, or in some cases, an intent to fail to commit and act or fulfill a duty. Thus, our government has created criminals of us all, or rather, given the American system of representation in the creation of legislation, we have made ourselves criminals, and most of us don't even know it!
Indeed, Elder H. Verlan Andersen said as much in chapter 6 of "The Moral Basis of a Free Society. He wrote,
"But over the years this fundamental requirement of a criminal intent has been dispensed with in some areas so that today under statutory laws it is no longer required in many instances. Current textbooks and dictionaries define a crime somewhat as follows:
An act committed or omitted in violation of a public law forbidding it. (Bouvier’s Law Dictionary, 1934 Ed.)
According to the theory expressed here, the state is free to forbid and punish any conduct it chooses. It is not limited to punishing those acts which are motivated by an evil intent.
Since the relaxation of the requirement of a criminal intent, the number of laws which provide for punishing good and innocent behavior have grown until today they are far more numerous than those which punish evil or harmful conduct."
Last month, I wrote the following that I would like to include in this note:
I would like all my friends to read this quote by Ayn Rand, and then read the following quote from my business law book.
"The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding cit
izens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt." ~Ayn Rand, "Atlas Shrugged."
"In recent years, an increasing number of laws and regulations have imposed criminal sanctions for strict liability crimes-that is, offenses that do not require a wrongful mental state [mens rea, as opposed to just actus reas] to establish criminal liability. The federal criminal code now lists more than four thousand [4000!!] criminal offenses, many of which do not require a specific mental state. There are also at least ten thousand [10,000!!] federal rules that can be enforced through criminal sanctions, and many of these rules do not require intent. Strict liability crimes are particularly common in environmental laws, laws aimed at combatting illegal drugs, and other laws affecting pubic health, safety, and welfare. Under federal law, for example, tenants can be evicted from public housing if one of their relatives or guests used illegal drugs-regardless of whether the tenant knew or should have known about the drug activity.
Many states have also enacted laws that punish behavior as criminal without the need to show criminal intent. Under Arizona law, for instance, a hunter who shoots an elk outside the area specified by the permit has committed a crime, regardless of the hunter's intent or knowledge of the law.
Although proponents of such laws argue that they are necessary to protect the public and the environment, critics say laws that criminalize conduct without any required intent have led to overcriminalization, or the use of criminal law as the main tool to solve social problems, such as illegal drug use. These critics argue that the removal of the requirement of intent, or malice, from criminal offenses increases the likelihood of people committing crimes unknowingly-and perhaps even innocently. When an honest mistake can lead to a criminal conviction, the idea that crimes are a wrong against society is undermined."
~"Modern Principles of Business Law," Roger LeRoy Miller, pg. 140-41.
Here here, Mr. Miller! Even in the United States, the government(s) has grown so much and sought so much power (often unconstitutionally) that, so as to rule over the innocent and place burdens upon their backs, to enslave them, in the absence of not enough criminals, even when the government's intentions may be good or pure, so as to protect the general welfare or environment, it has created many, if not most of the criminals that now exist, have records, and flood our prisons, just as Ayn Rand stated in "Atlas Shrugged." And we still like to call ourselves a free nation? The government has created these many criminals, not because they are truly criminals according to Natural Law, having violated a law of society that is just, having its basis in Natural Law, such as murder, theft, burglary, etc., but only because of positive law-laws that are created by petty tyrants (good intentioned ones, even, but petty tyrants nonetheless) to impose their will and opinions on others, whether those others like it or not, to exercise unlawful and unrighteous dominion over those they are elected to serve. And many times, especially in republics and democratic nations, those petty tyrants are merely the puppets of even greater tyrants, the majority, ourselves, who feel they have some justified right to invade the just and sacred rights of the minority because they have the power to do so and because they want to impose their private opinions on everyone. But, mind you, all tyrants will receive their due in the end! And one way our government has created these criminals who would otherwise be perfectly law abiding citizens, even if we personally don't agree with their choices, is through strict liability crimes, making so many of them that it is virtually impossible to not exist and live life without violating a crime somewhere down the line in one's life. So, we must end the practice of enacting strict liability crimes, doing away with all them, both on the federal, state, county, and local level, and return the element of "mens rea," or intent, to all our criminal laws!
Take for example 76-9-702.3 of the Utah Code, concerning public urination.
"(1) A person is guilty of public urination if the person urinates or defecates:
(a) in a public place, other than a public rest room; and
(b) under circumstances which the person should know will likely cause affront or alarm to another.
(2) Public urination is a class C misdemeanor."
This statute lacks the requirement of intent; instead, it prohibits an act without the requirement of intent. What if, for example a person had bladder control problems accidentaly urinates in public, under circumstances which this person knows will likely cause affront or alarm? This is not unreasonable. Elderly people have this problem, as do some adults as well. Sometimes people can't control their bladders or bowels, even in public, and as such, they urinate/defecate. Or sometimes if indidivuals haven't had the chance to go to the restroom for a while, and their bladder is so full that it cannot hold another ounce of urine, the bladder flows freely and the individuals pees his pants without any control of it. I am embarrased to admit it, but this had happened to me before. Or what about a person who is medically forced to use a cathedar and is out and about in public, carrying their urine bag on their wheel chair or elsewhere? Under these circumanstances of uncontrollable urination, according to the statute, even these unfortunate people could be convicted of a class C misdeameanor, punished for committing an act that they had no intention of committing! Thus, in order for this law to be considered just and valid, it must include the requirement of intent, being worded as follows:
"(1) A person is guilty of public urination if the person, having full control over his bodily functions, INTENTIONALLY urinates or defecates:
(a) in a public place, other than a public rest room; and
(b) under circumstances which the person should know will likely cause affront or alarm to another.
(2) Public urination is a class C misdemeanor."
Or take as another example, manslaughter, which is defined as a crime, and only a crime, but a felony under 76-5-205 of the Utah Code:
"(1) Criminal homicide constitutes manslaughter if the actor:
(a) recklessly causes the death of another;
(b) commits a homicide which would be murder, but the offense is reduced pursuant to Subsection 76-5-203(4); or
(c) commits murder, but special mitigation is established under Section 76-5-205.5.
(2) Manslaughter is a felony of the second degree.
(3) (a) In addition to the penalty provided under this section or any other section, a person who is convicted of violating this section shall have the person's driver license revoked under Section 53-3-220 if the death of another person results from driving a motor vehicle."
The very definition of manslaughter is the wrongful death of an individual caused by rekclessness without an intention to kill that person. Recklessness is not the same as intent. Recklessness means behaving in a way in which one fails to uphold his duty of proper behavior towards another, but it does not mean intent. There is a reason why there is a criminal alw for murder and one for manslaughter; murder includes the requirement of intent, while manslaugter is merely the criminalization of negligence, even gross negligence, which cannot happen because as already proven, a crime is an intentional act that is prohibted by society in which the rights of another human being are invaded or violated, to which is affixed a punishment worthy of the crime. Thus, negligence can never be made a crime, but remains only a civil action, a tort, capable of liability for restitution for having unintentionally deprived another of something that rightfully belongs to him/her, but never punishment. There is a significant difference between restitution or a civil rememdy and punishment, in that restitution is a form of equitable civil remedy, applicableto only between individuals, whereas punishment is a form of restitution applicable toward all of society. For that is what a crime is, its an offense against society, in addition to an offense against the actual victim, whereas a tort is an offense against an individual vitcim only. The very definition of manslaughter is death by negligence, an accidental death, wrongful all the same, but still unintentional. Yet in legislating manslaughter, we have made an unintentioanl act, wrongful all the same, yet unintentioanl, a crime, abandoning the Common Law tenet or principle of mens rea in legislating criminal acts! How shameful! The same precedent we have established to be applicable to others is now available to be applicable to us as well! Think about yourself in the same situation; would you want to be considered a criminal for an unintentional act, such as the death of another, when you know it was an accident, even if you were negligent? No! Nobody in their right mind would want to be sent to jail because of something they did as an accident, even if the end result is as horrible as a death! They would want to make restitution, to be sure and beg forgiveness from the victim and victim's family for their negligence, but they would not want to be punished by being deprived of their liberty and property for something that was an accident! Thus, we have the Golden Rule to be our guide. We must do unto others as we would have them do unto us. If we would not want to be punished for an unintentional act, then we must not punish others for an unintentional act. Manslaughter is not a crime; rather it is a tort only, precisely because it lacks the requirement of intent. No law can establish a crime unless it includes the requirement of intent!
To be a just and valid criminal law, the statute must prohibit an act, done intentionally, or in other words, with malice, that violates the rights of another human being, and must affix an exact punishment equal to the crime. This and this alone is the only just and valid definition of a crime. All other other acts are torts. Now can there be intentional torts, meaning the committers of intentional acts may be found liable for damages? Yes, it is true, there are such things as intentional torts, and all intentional torts may also be legislated a crimes as well, because they are the intentional harm of another's rights, and specifically note that the requirement of intent is included. Thus, all crimes may be intentional torts and all intentional torts may be made a crime. However negligence, a tort without intent, may never be made a crime!
I'm sorry this topic might seem a little crass, but it's even more crass and unbeleivable that our legislators have forgotton the Common Law in its writing of criminal laws! Granted, one would hope that the judges or juries who might hear such a case as the ones described above would have the common sense to apply the Common Law principle of the requirement of intent within criminal laws, but as is plainly evident in America today, represented by this statute and other's lacking the requirement of intent required in criminal law alone, common sense has long since been abandoned by America. And besides, even if the judge or jury had common sense to apply the requirement of intent in such a case, why would we want to leave it to chance in case they didn't have such common sense when we can fix the problem permanently by requiring every criminal law to have the requirement of intent included in it, thus avoiding leaving it to chance? If America is losing it's common sense in so many ways, as is plainly evident today in America's laws and in society's actions, then why leave it to chance to have a judge or jury (especially a jury!) apply common sense in a criminal case that should involve intent when we can rule out chance by requiring intent in the statute itself? Such is illogical!
And of course, no exposition on criminal law would be complete without an explanation as to the fallacy of victimless crime. Today in America, we have numerous laws that make it a crime for an individual to harm himself, even intentionally, by doing drugs that have been outlawed or that outlaw actions that some deem immoral between two consenting people. Such are not crimes because they do not match the definition of a true crime, which, again, is an intentional act that injures another idnividual and his/her rights. This is a crime, and if the action harms no one else and violates no one elses rights, or if the action is consented to by the other individual, and both consenting individuals are competent to consent to the act, there is no crime, no matter how intentional the act may be. A crime must be 1.) and intentional act, and 2.) this intentional act must injure/harm another human being by violating his/her rights. Anything else, while perhaps a sin in the eyes of God, may not be deemed a crime by human law and have a penalty affixed to it. Many religious individuals in America, no matter their religion, have become over zealous in their preaching of their religion and the truth to the point where they no longer use love and persuasion to turn man from his wickedness and sins, but rather use force to turn him from them. It is important to note that while all true crimes (those acts matching the definition of a true crime as describe above) are sins or abominations before God, not all sins or abominations before God are crimes. Such is the victimless act and the act between two competent, consenting individuals, in which no other person's rights are violated arbitrarily without the consent of the victim. Thus, not only must we rid our criminal codes in the states, our individual towns/cities, and the criminal code of the federal government of all so-called crimes that lack the requirement of consent in the statute, but we must rid our criminal codes of all legislation deemed "criminal law" that punishes an action in which their is not victim and which violates no other person's rights. Now, this does not mean that we as individuals or religious groups condone these acts by deleting them from our criminal code because they are not true crimes. Rather, we as indiviuals can, and have the duty to condemn such immoral acts done by a person to himself/herself or done by two or more competent, consenting individuals, and preach righteousness and morality to the our fellowman through persuasion, as God does. But we cannot use the color of law, under a false pretext of a crime, to ban and punish such behavior so as toforce those individuals not to do those acts out of fear of force and deprivation of their life, liberty and/or property. Such individuals who commit such immoral acts that are truly sins and abominations before God, inasmuch as they harm no one else but themselves or consent to such harm, will be judged by God in the end and will recieve their due.
This is my cry and plea, that we restore to American criminal law the requirement of intent! According to Natural Law, any criminal law lacking the requirement of intent is not a just criminal law, and is in fact void and of no effect. The man accused of committing the crime, unless he had intent to do so, cannot be convicted and punished. It is our duty as citizens of the U.S. to fix this problem , both federally and within our own states, counties and locales (cities, towns, etc.) Our duty is to study the laws of our federal gov. and our state and local gov.'s, and locate those laws that are deemed criminal laws that lack the requirement of intent, and demand that they be rewritten/amended by our legislators so as to include the requirement of intent and demand of our judges and juries to rule as innocent any man accused of a crime that lacks the requirement of intent in the statute that makes it criminal, until our courts realize that this is the Common Law and the Natural Law, and that it shall not be ignored any further. We must also demand of our courts that any law that defines any act as criminal that lacks the requirement of intent be ruled unconstitutional by the courts as well.
This is our duty, to protect the accused, and in so doing, to protect ourselves from injustice! For what man would want to be punished for something he did accidentally and had no intent of doing? What just God would punish his children for something they had no idea was unlawful and thus had no intent to do so? Our God is a just and merciful God, and does not punish those without a knowledge of His laws nor does he punish those who have no intent on breaking His laws, but may do so accidentally from time to time due to human weakness and fallibilty. And if our God would not do so, the Author of Nature and Nature's Law, we puny little men have no authority to do so either! God will only punish those who had a knowledge of His laws and intentionally violated them. Thus, we puny little men in our puny little governments must do only the same and go no further!
Bring back the requirement of intent (mens rea) to our criminal laws in America!
With regards to Utah, an easy way to fix all of Utah's unjust criminal laws lacking the requirement of intent would be to amend the Utah constitution, requiring that all criminal laws shall include the element of intent so as to be considered a crime and not a tort, and any statute making an act criminal yet lacking the requirement of intent is from henceforth void, consituting only a tort, and a victim can bring forth a civil suit in court for damages only, but not for punishment. There is no crime if there is no intent to commit the act; what results when there is no intent on the part of the person who committed the act is not a crime but a tort instead, and the person who committed the act unintentionally may be found liable for negligence in a civil court. This is an easy way to fix all of Utah's unjust criminal laws lacking the requirement of intent. Of course, the Utah Code would have to be rewritten, expunging from the code book all voided criminal laws as a result of this constitutional amendment, but that is easy enough as well.