Strict Liability

• Jurisdiction: Maryland

X. Strict liability

Strict liability is liability with neither subjective fault nor objective fault. For strict liability offenses, the prosecution is not required to prove a mental state on the part of the defendant. In Garnett, 332 Md. at 587, the Court of Appeals held that when a defendant is charged with a strict liability offense, the defendant's "knowledge, belief, or other state of mind" is irrelevant. Strict liability criminal offenses are statutory because, at common law, there were no strict liability offenses. At common law, all crimes had a mental state of at least gross negligence or recklessness. LaFave, supra § 5.5, at 288-89.

A. Types of strict liability offenses

There are two major categories of strict liability offenses. One category is low level police power strict liability regulatory offenses, e.g., speeding.

One category is strict liability sex offenses. Depending on the offense, in Maryland, the age of consent is either age 14 or age 16. Persons below the age of consent cannot give consent, and if the defendant has sex with such a person, the defendant's conduct is criminal on a strict liability basis. E.g., Md. Code Ann., Crim. Law §§ 3-304(a)(3), 3-307(a)(3)-(5), and 3-308(b)(2)-(3).

It does not matter what steps the defendant took to ascertain the age of the person with whom the defendant had sexual intercourse, a sex act, or sexual contact. If that person is below the age of consent, the conduct is criminal, even if factually consensual because, as a matter of law, a person below the age of consent is incapable of giving consent. In Walker v. State, 363 Md. 253, 254 (2001), the Court of Appeals held that a reasonable mistake of age is not a defense to strict liability sexual offenses.

Sexual conduct with a person who is mentally or physically incapable of giving consent is not a strict liability offense, but it is close to a strict liability offense. The defendant is liable if the defendant has actual knowledge, or should have known, of the mental or physical incapacity. Garnett, 332 Md. at 584; Walker, 363 Md. at 260.

B. Determining whether a statute creates a strict liability offense

If a criminal offense is created by statute, and the statutory language includes no mental state, there is an issue as to whether the legislature intended to impose strict criminal liability without fault. Frequently, courts will "read in" a mental state. For example, there is no mens rea in the statute prohibiting driving with a suspended license. Nonetheless, in McCallum, 321 Md. at 457, 461, the Court of Appeals interpreted the statute to require actual knowledge. When...