NARSOL fighting strict liability case in Ninth Circuit

By Larry and Sandy . . . NARSOL is joining the fight against strict liability offense schemes.

An important case from Arizona, May v. Ryan, is pending before the Ninth Circuit Court of Appeals. The case has the rare distinction of having already been successful in a lower court for the plaintiff, May, who was convicted in Arizona state court of the strict liability offense of sexual battery. A federal judge set aside his conviction in a habeas corpus proceeding and declared the Arizona statute unconstitutional because the statute does not require proof of what is called mens rea, meaning intent to commit a crime. In addition to lacking mens rea, the statue impermissibly shifts the burden to the accused to disprove criminal intent.

The appeals court reasoned:

The State deprived May of his constitutional right to due process of law and proof of guilt beyond a reasonable doubt. By crafting its . . . law as it did, Arizona spared itself from proving sexual intent and instead burdened May with disproving it.

Arizona disagrees and has appealed the district court’s finding that the statute is unconstitutional. Since the issue of strict liability is so significant to our cause, NARSOL’s Board of Directors unanimously voted to expend funds to prepare an amicus brief in support of May. We are working closely with a law professor and anticipate that other criminal defense attorney organizations will join our brief.

We are excited to be an integral part of this exciting litigation. Strict liability offenses are an affront to the constitutional dictate that one is innocent until he is proven guilty.

For those who wish to contribute to this effort, you may do so by donating to NARSOL’s Legal Fund.



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Sandy Rozek

Sandy is communications director for NARSOL, editor-in-chief of the Digest, and a writer for the Digest and the NARSOL website. Additionally, she participates in updating and managing the website and assisting with a variety of organizational tasks.

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    • #19363 Reply

      Correct me if I am wrong, but couldnt this have far reaching implications for people that either were convicted or took pleas to online stings such as solicitation and CP cases? From what I have gathered, its seems it would and should because just about all these cases the state never had to prove intent (sexual or in the case of distribution via peer to peer networks that auto share files without knowingly consenting to sharing)

      In november of 2016 the feds updated their federal sentencing guildlines for cp. Now in order to prove intent to distribute 2 factors have to be present. First an actual agreement between 1 party and a second party must have occurred. Secondly, the exchange must have actually occurred. So what this means is peer to peer networks that auto share files without ones knowledge can no longer be used for distribution convictions at the federal level. The guildelines are under sections 2g2.1,2g2.2, and 2g3.1 as clarifying admendments, which makes them automatically retroactive. I am hoping that between the federal updates and the may v ryan case these guidelines for cp distribution as well as other crimes like solicitation online will trickle down to state level and make the state prove intent.

      • #19824 Reply
        Jeremy from Indiana

        I wonder if what you mention in your post might affect me and my overall registration status.

        I was convicted in a federal (military) court of receipt and distribution. The distribution charge rests solely on the peer to peer sharing.

        Indiana does not have a “receipt” offense, so they consider it the same as possession, but one of the charges I was charged with was possession in which I was found not guilty. That point might be moot though because the reason I was found not guilty is because it was found to be “mutiplicious” with receipt.

        In 2010, when I was convicted and sentenced, possession was not a registerable offense in Indiana. This is why I think the prosecutor was so dead set on getting me for distribution. I turned down a deal for this specific reason.

        In 2009, the Indiana Supreme Court declared SORA punitive in the decision of Wallace v. Indiana.

        So, if my distribution charge is invalid now leaving only the receipt charge, and receipt/possession was not a registerable offense at the time of my conviction, then I should be able to be removed from the registry, right?

        I might have to check with an attorney on this one.

    • #19374 Reply

      What impact might this have against charges of “Failure to Register” which due to being an administrative not a criminal felony is also strict liability?

    • #19435 Reply

      This is a very interesting issue I have not seen before. I’ll have to go some digging into this.

      I got in trouble for having consensual sex with an adult. I was a probation officer and she was on probation with my department. I was not her probation officer when we had our relationship. There was no quid pro quo, coercion, threats or anything, which she admitted. But here I am! God I love this country. *sarcasm*

      The problem I have is that there was no proof required that I had coerced or threatened her. It was just assumed that such a relationship is not natural and that for it to occur, the offender surely must have been trying to take advantage of victimize the person on probation.

      I wonder if this ties into the mens rea issues. Yes, I committed the act. BUT….was there any intent to try to harm, take advantage of or victimize someone.

    • #50887 Reply
      John Quinn

      What’s the current status of this case?

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