Given the erosion of the concept of mens rea, a number of states have adopted a default mens rea provision in their criminal code. In other words, the state prescribes a default culpability standard in cases where the criminal statute is silent on the intent required to establish a criminal offense.
The Michigan Penal Code does not contain a default mens rea provision. Thus, if the Legislature does not explicitly state the culpability necessary to establish an offense, courts are left to evaluate whether a mens rea requirement should be inferred or if strict liability should be imposed.
The Michigan Supreme Court has stated that although strict-liability crimes are disfavored, the Legislature may, nevertheless, “decide under its police power that certain acts or omissions are to be punished irrespective of the actor’s intent.” Statutes using strict liability are not constitutionally prohibited. Michigan Chief Justice Thomas Cooley articulated the rationale for strict-liability, public welfare offenses: “Many statutes which are in the nature of police regulations … impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.”
Criminal intent is typically an element of statutorily created crimes in Michigan. Where a statute codifies the common law, and that common-law crime required a mens rea, courts will interpret the statute as also requiring intent to be shown. For crimes with no common-law equivalent, courts first look to the language of the statute to assess the intent of the Legislature. Even if a statute fails to expressly state that intent is a predicate for determining guilt, courts operate with the presumption that intent is still necessary. As the Michigan Supreme Court recently held in People v. Kowalski, “When interpreting a criminal statute that does not have an explicit mens rea element, we do not construe the Legislature’s silence as an intention to eliminate the mens rea requirement.” If the text of the statute is unclear, courts will also examine the legislative history of a statute to determine intent.
Numerous decisions from Michigan courts have addressed the issue of culpability and intent. A discussion of the major cases that have recognized a mens rea element and those that have imposed strict liability is found in Appendix A.