Determining Whether Mens Rea is a Required Element

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.”[21] Statutes using strict liability are not constitutionally prohibited.[22] 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.”[23]

Criminal intent is typically an element of statutorily created crimes in Michigan.[24] 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.[25] For crimes with no common-law equivalent, courts first look to the language of the statute to assess the intent of the Legislature.[26] 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.”[27] If the text of the statute is unclear, courts will also examine the legislative history of a statute to determine intent.[28]

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.