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Liability Without Fault

Liability without fault is a circumstance in which the defendant is held criminally liable for his actions even though criminal intent is absent. In other words, cases of liability without fault require only actus reus, without the mens rea requirement. This runs directly counter to the usual precept of criminal law in the United States, which holds that it is better to acquit a guilty person than convict an innocent one. In cases of liability without fault, it is better to convict an innocent person than acquit a guilty person.

There are several lines of thinking behind this idea. First of all, cases of liability without fault usually are usually only the most minor misdemeanors and infractions, crimes by statute, crimes mala prohibita, in which little real harm is done to society. Generally such crimes carry no social stigma with them and incur little more than fines and, occasionally, a minimal amount of jail time. In addition to this, culpability for such crimes can be very difficult to prove. Did the bartender really mean to sell alcohol to the minor? This question could make its way through appellate courts for a long, long time - forever, in theory. Instead, it's generally held that the relatively light punishment and the general desirability of enforcing these regulations justify the practice of liability without fault. Otherwise, there would really be nothing to prevent teenagers from flooding our bars and making the whole scene generally distasteful.

Nevertheless, there remains an understandable amount of controversy surrounding cases of liability without fault. First of all, and most obviously, there is the outrageous (depending on how you look at it) injustice done to the individual. To be charged and convicted of a crime you not only had no idea you committed, but perhaps even had a deep and personal desire not to commit will leave a sour taste in anyone's mouth. Libertarian arguments that the concept of liability without fault does more harm to society than good are not to be immediately dismissed. Furthermore, it can be argued that convicting a person for a crime he did not mean to commit cheapens the notion of criminal guilt, and could encourage further criminal thoughts in those who otherwise would not have had them.

There are two kinds of liability without fault,

  • strict liability and
  • vicarious liability.

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