Musings from Brian J. Noggle: Mens Rea and Actus Reus Both Optional Now

Mens Rea and Actus Reus Both Optional Now

The first part of this story is disturbing enough:

Mike Herchenbach was sure he would get a fine. He'd pay a couple hundred dollars, like his roommates, and go on with his life, even though he wasn't at the party that got out of hand at his rental house. After all, his name was on the lease.

But what he didn't expect, and hardly believed, was what Lancaster County Court Judge Gale Pokorny had in mind as his punishment for maintaining a disorderly house last Oct. 2.

Herchenbach remembered his attorney from the University of Nebraska-Lincoln reaching for a work-release form, which would get him out of jail so he could work while serving his sentence.

He didn't need it. It's only a weekend, he remembered saying.

But Pokorny didn't say three days in jail. He said 30.

Thirty days in jail for a disorderly house. That's an interesting application of a law to make an example out of someone for having a wild party.

However, more frightening is the judge's reasoning for the stiff punishment:

In a 2½ page sentencing order, Pokorny went through, reason by reason, "why courts need to take a harder look at this type of case and Mr. Herchenbach."

"Reason #1. People can die at these parties," he wrote.

There you go. Herchenbach didn't mean to kill the victim (that is, he lacks mens rea, the guilty mind or intent to kill), and, come to think of it, no one actually died (no actus reus, guilty act or actual freaking crime).

It used to be that laws and the courts required both intent and action to convict; with the advent of strict liability laws, you didn't even have to intend to break the law to actually go to the slam. Now, thanks to Judge Pokorny, you don't even have to break the law to be punished for it.

No, sir; simply because crimes or tragedies can occur, you can be held accountable. Sleep tight, citizen.

(Link submitted to Outside the Beltway Traffic Jam.)

- posted by Brian J. @ 8:31 PM