Mezzanine Law: The Case of a Mens Rea Presumption
Erik Luna Many of the modern challenges of mens rea, the mental state element of crime, stem from the purported ambiguities of legislation.1 Sometimes the issue involves uncertainty in interpreting a specified mental state—whether, for instance, “willfully” requires an appreciation that one is violating the law, thereby allowing claims of ignorance through a mistake-of-law defense. At other times, a mens rea requirement may raise questions as to its application within a statute, like whether to distribute an explicit mental state across the elements of a crime. But when these interpretive possibilities prove impossible as a matter of language or reason, or when a provision is entirely bereft of any culpable mental state, the issue takes on a distinctly normative character: whether to infer a mental state requirement based on a…