Vol. 6, No. 4, Pg. 29. Adopting the Model Penal Code Approach to Mental State.

• Author: By F. Patrick Hubbard

South Carolina Lawyer

1995.

Vol. 6, No. 4, Pg. 29.

Adopting the Model Penal Code Approach to Mental State

29Adopting the Model Penal Code Approach to Mental StateBy F. Patrick HubbardTwo recent decisions of the South Carolina Supreme Court have made a fundamental and valuable contribution to the criminal law of this state by adopting the Model Penal Code approach to the mental state element of crimes. State v. Jefferies Op. No. 24111 (S.C. Sup. Ct. filed July 5, 1994) (Davis Adv. Sh. No. 16 at 14); State v. Ferguson, 302 S.C. 269, 395 S.E.2d 182 (1990). This approach is set forth in Model Penal Code §§ 2.02-2.04 (Official Draft 1962). Because of its analytical advantages, the Model Penal Code system is the predominant approach in the United States. See Robinson, A Brief History of Distinctions in Criminal Culpability, 31 Hastings L. Rev. 815, 816 (1980).

Jefferies notes that "[flew areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime." Op. No. 24111 at 17. One reason for this difficulty is that "[a]t common law, crimes generally were classified as requiring either general intent or specific intent. This venerable distinction, however, has been the source of a good deal of confusion."

Because of these problems, "the commentators and Model Penal Code have rejected the traditional dichotomy in favor of the hierarchical approach." Jefferies at 17. Under this approach, the required mens rea for a particular crime can be classified into a hierarchy of culpable states of mind in descending order of culpability, as purpose, knowledge, recklessness and negligence." Both cases also note that "the legislature, if it so chooses, may make an act or omission a crime regardless of fault . . . . These crimes are referred to commonly as 'strict liability' offenses." Ferguson at 271272, 395 S.E.2d at 183. Thus, under this scheme, there are five categories of mental state: (1) purpose; (2) knowledge; (3) recklessness; (4) negligence; and (5) strict liability, which means that no mental requirement of any sort is required.

Unfortunately, Jefferies and Ferguson only go part of the way toward the full Model Penal Code system. Two additional aspects of that system have not yet been explicitly adopted in South Carolina.

First, the Model Penal Code has "default" rules for determining the applicable mental state for a statute where the legislature has not explicitly stated the mental state. §§ 2.02, 2.05, Model Penal Code (Official...