GEORGIA LAW REVIEW - StephanKinsella.com

19791 HUMAN RIGHTS 1431
the general place of mens rea as a predicate of criminal liability,
because one of the forms of excuse is to negative the culpable mental
state (mens rea) associated with a particular actus reus. The moral
theory of the criminal law here proposed clarifies both the place of
mens rea and the excuses, and suggests how morally to analyze
proposals to recognize novel excuses, like that of socioeconomic deprivation.
Eventally, this discussion shall turn to the analysis of defenses
by way of justification.
In general, the first principle of just punishment-equal liberty,
capacity, and opportunity-justifies the general mens rea requirement
as a predicate of criminal liability. As we earlier observed,
forms of mental state (intent, knowledge, and an individualized
standard of negligence)IB6 would be required as necessary moral conditions
of just punishment because the presence of these mental
states (mens rea) insures that the person may fairly be said to have
the capacity and opportunity to conform conduct to law. Accordingly,
forms of strict liability are disfavored in the criminal law:
residual pockets of strict liability are ~ontracting;'~~ and arguably,
those that remain should be regarded as constitutionally suspect.168
Similar considerations justify the place of the excuses as defenses
to criminal liability-for example, the insanity defense and duress.
If persons lack normal capacities to conform conduct to law as the
product of mental disease or defect, they are not justly the subject
of criminal penalties whose propriety rests, inter alia, on respect for
the presence of capacities of autonomous choice and de1iberati0n.l~~
Persons under extreme duress are justly afforded a defense on the
ground that their action is not free (as the principle of equal liberty
requires) and, concurrently, on the ground that conformity to law
here rpquires an extreme sacrifice of basic interests (for example, a
Ian See note 111 supra.
IR7 See e.g., People v. Hernandez, 61 Cal. 2d 529, 393 P.2d 673, 39 Cal. Rptr. 361 (1974)
(good faith belief that consenting party was not underage held to constitute defense to statutory
rape charge); Director of Public Prosecutions v. Morgan [I9751 2 W.L.R. 913 (House of
Lords allows that belief in consent of rape victim, even though unreasonable, is defense to
rape charge). On felony murder, see G. FLETCHER, RETHINKING CRIMINAL LAW 274-321 (1978).
IRB See D. RICHARDS, THE MORAL CRITICISM OF LAW 203-09 (1977). A vexing contemporary
problem is the use of strict liability standards as a way of developing corporate responsibility
which, otherwise, will be avoided by techniques of bureaucratic impersonality. See, e.g,,
United States v. Park, 421 U.S. 658 (1975). Arguably, the use of strict liability on the terms
specified in cases like Park is, in effect, a standard of negligence sub silentio, applied in order
to ease the prosecution's burden of proof in cases where negligence, in the circumstances,
seems patent.
lap See D. RICHARDS, THE MORAL CRITICISM OF LAW 209-16 (1977).