§ 13.03 Model Penal Code

§ 13.03 Model Penal Code

[A] General Rule

Unless the definition of a crime so provides, "[n]either knowledge nor recklessness or negligence as to whether conduct constitutes a crime or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense."⁶⁴ Under limited circumstances, a mistake-of-law defense is recognized.

[B] Exceptions to the General Rule

[1] Reasonable-Reliance Doctrine

A person's belief that her conduct is lawful constitutes a defense if: (1) she relies on an official, but erroneous, statement of the law; (2) the statement of law is found in a statute, judicial decision, administrative order or grant of permission, or an official interpretation by a public official or body responsible for the interpretation, administration, or enforcement of the law; and (3) the reliance is otherwise reasonable.⁶⁵ A person is excused in these circumstances because, according to the Commentary, she has acted in law-abiding fashion, the danger of fraud is slight, and her claim is not unduly difficult to prove or disprove.⁶⁶

Because of the danger of collusion, the Model Penal Code, like the common law, does not recognize an excuse for reliance on the advice of a private attorney. The Commentary concedes, however, that cases can "be imagined in which a client is unfairly taxed with his lawyer's bad advice."⁶⁷

[2] Fair Notice

The Model Penal Code provides that a defendant is not guilty of an offense if she does not believe that her conduct is illegal, and the statute defining the offense: (1) is not known to her; and (2) was "not published or otherwise reasonably made available" to her before she violated the law.⁶⁸

The Model Code antedates Lambert v. California.⁶⁹ The Code defense applies only if the statute was neither published nor otherwise made reasonably available to the actor before she committed the crime. Lambert would apply to situations in which the statute or ordinance was published and available to be read by a citizen, but in which the prohibited conduct itself would not alert an actor to the need to investigate whether there is a relevant published statute. Therefore, Lambert's constitutional rule is broader than this Code provision.

[3] Ignorance or Mistake That Negates Mens Rea

The Model Penal Code requires proof of some culpable state of mind regarding every material element of an offense.⁷⁰ Furthermore, Section 2.04(1) provides that a mistake of law is a defense if it negates a...