Strict liability schemes seriously threaten constitutional protections against wrongful conviction

By Larry Neely . . .

The case of Zach Anderson has certainly been in the news in recent weeks. In fact, RSOL has joined the crusade for Zach. My opinion is that we are placing far too much emphasis on Zach’s individual case and too little attention on the underlying cause, which places thousands of young people in the same situation. The culprit is “strict liability offense” schemes, which are disfavored and possibly unconstitutional according to the US. Supreme Court. Before I explain “strict liability” crimes, I will say that I am disheartened that Zach is no longer permitted to reside with his family due to restrictions imposed by Indiana authorities. This illuminates the importance for attorneys contemplating pleas for sexually related offenses to determine whether or not the person’s proposed residence comports with the law or the policies of the supervising authorities.

Zach was convicted of Criminal Sexual Conduct in the fourth degree, contrary to § 750.520(e) (Michigan Penal Code), a misdemeanor punishable by up to two years’ imprisonment. The statute reads in part: “A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if any of the following circumstances exist: (a) That other person is at least 13 years of age but less than 16 years of age, and the actor is 5 or more years older than that other person…” 

The problem facing the defense attorney handling Zach’s case is that Michigan’s Criminal Sexual Conduct statute is a “strict liability” offense, which is nearly impossible to defend. This is because no particular state of mind is required in order to convict Zach of the charges. Of course, Zach’s attorney could have rolled the dice and gone to trial hoping for “jury nullification.” Jury nullification occurs when a jury refuses to convict despite the evidence that the person engaged in criminal conduct. Such nullifications are rare. If the gamble failed, Zach more than likely would have been sentenced to a longer period of incarceration, and, depending on the number of counts he was facing, they could have stacked several two-year prison terms consecutively.

What is wrong with “strict liability offense” schemes? They are disfavored and the U.S Supreme Court has frequently recognized that criminal liability is normally based upon the concurrence of two factors: “an evil-meaning mind and an evil-doing hand.” See United States v. Bailey, 444 U.S. 394, 402 (1980) (quoting Morissette v. United States, 342 U.S. 246, 251 (1952)). “[T]he failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law.” See Liparota v. United States, 471 U.S. 419, 426 (1985). In United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978) the Court observed that “far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.” Id at 438. 

Michigan’s law was originally enacted in 1974. Much has changed in the world since then, particularly in terms of how relationships develop. Many people these days do use the Internet to arrange dates and begin relationships. In fact, marriages often result from relationships begun on line. Unfortunately, the law has not evolved to recognize society’s dramatic change. My personal preference would be that all felony-level sex offenses be amended to require that the prosecution prove knowledge of age. This is a very lofty goal and unlikely to happen without some successful litigation challenging the constitutionality of strict liability offenses. The next best outcome would be for these offense schemes to be amended to include some “affirmative defenses” such as a relationship formed based on the other person’s misrepresentation regarding age. If such a defense had been available to Zach’s attorney, my bet is that he would have rolled the dice and proceeded to trial.

RSOL’s Scarlet Legal Action Project has identified the issue of strict liability offense schemes as an important priority and will be working with other legal professionals seeking change.

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9 Thoughts to “Strict liability schemes seriously threaten constitutional protections against wrongful conviction”

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  1. Jay

    In contrast to the strict liability clause comes to comparison of the limited offense afforded to respondents and suspects accused of such crimes. In most states the grand jury or charging authority tends to take the high end on probable cause and use the very same for a barging chip to the defense down the road lending to the likelihood of a plea and conviction of some sort. Secondly the evolution of sex crimes in america has caused legislative bodies to slickly reword statutes and codes to dually cause the propensity of a conviction as well. For example : statutory rape being reworded into child molestation , which will likely cause a jury of peers to cringe. It is well and populary understood that statutory rape is a Romeo and Juliet condition in which a couple assumes a relationship near the cusp of nearly legal consent with one party falling just short of permissive consent. A jury given the jist of such a charge profoundly would vote or fleet away from complete ignorance of the law. The trickery and the limit the courts have impose from legislative inent to jury instructions, has severely tainted true justice in all tiers of the court justice system. We have sailed away from we the people to wean the will and the way to they the napolenic and all powerful. The scroll and script of the constitution is nothing but a platter for bruised and used bricklebread soon to crumble and erode emphatically in time.

    1. Jay

      Mistake of age is nothing but a laughable jab set to the ringside in a court of law. The given laws are nothing less than a submersible vessel meant to surface for political plights and ploys bemoaning an author as an automatic benefactor name etched infinitely. The people have been conditioned to give nothing less than a curse to the accused and convicted. Victimization is never a solution to rehabilitation and condemnation is never a cause to correct the wrongs of this world. Justice should be fair and impartial as it is rightful and reasoned.

  2. Martin

    Very eloquently put Jay. Since my conviction for CP in 2010, it has become painfully obvious that we have lost our way as a nation. Through subterfuge, deceit and avarice our courts have been inundated with attorneys, judges and politicians with their own agendas. The law has been manipulated to attain specific goals on both sides of the law. Ripping apart any underlying true meaning of our laws to the least reasonable interpretation. It makes me very sad to watch the country I was raised in destroyed by those in power. We are approaching the level of dictatorship or at the very least a socialist republic or police state. Our government performs the very iniquitous behaviors that as a nation have criticized other countries for performing. I am ashamed for having downloaded the six deleted photos discovered on my hard drive. Throwing me away for the remainder of my life with no hope of ever using my college degrees or years of experience is unforgivable. So many of us deserve another chance at making our lives mean something again. My children, family and friends all are in disbelief at how this can possibly be true in America. How can a civilized society continue their holy than thou attitude and witch hunt with no forgiveness in their hearts. Second chances are for everyone unless you are a registered sex offender. I never touched anyone or even wanted to. It was a weak period during a particularly troubling time of my life. How is destroying the remainder of my life and filling my children with shame a fair and just punishment for downloading and deleting 6 photos. I digress…

    1. Ed

      Martin, Phil-Our names are LEGION. Most of us have never molested ANYONE, ever, yet are portrayed as monsters-on-the-loose by the registries. We are ALL falsely portrayed as “sexual predators” when most of us fall into that ‘category one’ grouping. That’s the one which is characterized as ‘no contact’. When these laws, most often sponsored by pandering politicians in trouble with their electorates, come up for a vote…there is NO DEBATE at all! Individual legislators in evangelical counties and districts know it is political suicide to even go on record as calling for it in a session. And to vote “NO” on any such outrageous proposal to increase penalties or further criminalize perfectly natural and healthy sexual behaviors in our young people gives ammunition to one’s political opponents. Watch the black and white 60’s movie “Inherit the Wind” and you’ll see a perfect mirror to our present reality…

    2. Corey

      I really do feel for you Martin! And at least half of the registrars in my state for sure! (Missouri) cause I know how crooked they are from experience! It’s a modern day witch hunt! I personally have a child endangerment! For a crime that never happened! Now after four years for a crime I didn’t commit, I’m facing four more for being in a state park! But all my paperwork says, (No loitering at a school or park with playground equipment! Who knew that loitering in this instance, means presence of within 500 feet of any real property with a pool or playground equipment! And they forced registering on me under duress when I got released! My plea was no class, or registration! But while I was in, John Walsh law to Missouri means that any crime against children is a sex crime! So we put people on the list for not having a seatbelt on your child! Or whipping them! Or neglect! I have no clue what I can do! I just found this site, and feel comforted knowing I’m not alone! But there’s no recourse for me as usual! My ex said she lied in the first place and they don’t care!

  3. Phi

    I personally don’t even like the term “statutory rape” as no one is being “raped” and the use of the word “rape” makes the offense sound violent. Can we stop calling it “statutory RAPE” and just re-name it “sexual misconduct”? As to say that the convicted (accused) simply misconducted themselves with a person under legal age, especially when the under age person CONSENTS.
    And the use of the word “victim” is enough to make me want to vomit. The system never allows anyone to speak to/contact their alleged “victims” yet there are many cases where the “victim” ended up marrying the convicted person after the convicted person’s sentence and probation was over.
    Probation officers LOVE to say “How do you think the victim feels” whenever we complain about how we aren’t allowed to do anything while on tax payer wasted probation. My answer: “Well Mr/Miss probation officer, I’m not a mind-reader nor am I going to assume how someone feels without hearing it from their own mouths”. (I of course am referring to those consenting relationships). I sowed my wild oats with an older woman when I was 15. I neither felt victimized or traumatized. I wanted to go another round with her. So had she ever been caught, I’d have pissed off the prosecutor by not complying with the whole “victim” scheme.

  4. Delilah

    Sex offenses are so broad and poorly written you can never actually know if someone is a violent person, a “predator”, or just someone who messed up and made a bad choice in the moment regardless of age, and so on.

    Sex offender laws need to be rewritten from,the statutes definitions to the registry being either abolished (which is my preference) or reformed

  5. Tj

    My husband is on the registry. When he was 19 he got drunk at a party and afterwards he went to his friends to stay the night. His buddy was passed out on the bed and my husband passed out on the floor . He awoke to his friends sister naked on top of him …she was 14 at the time. She had removed his pants and was fondling his genitals…….. My husband told her to get off of him and to put her clothes back on. The girl got angry over being rejected so she told her grandmother a few days later that they had sex. Charges were filed (we didnt know they had filed anything against him until a couple years later he got pulled over for not ysing his turn signal and was arrested the cop said he had a warrant for raping a girl) and the lawyer we hired told us he had to take a plea bargain because nobody ever wins if they choose a jury trial despite the fact the girl told the court nothing happened she had lied out of anger. Her parents even asked that the charges be dropped We went to court for 2 1/2 years , we spent $30,000 and now we have a “task force” come every few months to search our house……they say they are allowed to do that with no notice or warrant or probable cause because he is on the registry. I’ve even been pulled over 2 miles from home and made to come back so they can search my house…….

    1. sandy

      TJ, they can do it because he is on probation–under community supervision–not because he is on the registry. That doesn’t make it any less intrusive in your life, but in most cases, probation ends before the requirement to register does.