Chapter 10: Mens Rea Requirements and Selected Defenses
10.1Mens Rea and Criminal Liability
MCL 8.9, which applies to certain crimes committed on or after January 1, 2016,1 sets out general criminal liability and statutory construction standards for determining the culpable mental state that is required for a criminal offense.
MCL 8.9 applies only to crimes committed on or after January 1, 2016. See MCL 8.9(1).
MCL 8.9(7) provides that MCL 8.9 “does not apply to, and shall not be construed to affect, crimes under[:]”
•the Michigan Vehicle Code, MCL 257.1 et seq.;
•the Public Health Code, MCL 333.1101 et seq.;
•the Identity Theft Protection Act, MCL 445.61 et seq.;
•the Michigan Penal Code, MCL 750.1 et seq.; or
•Chapter 752 of the Michigan Compiled Laws.
B.General Criminal Liability Standards
MCL 8.9(1) provides:
“Except as otherwise provided in [MCL 8.9], a person is not guilty of a criminal offense committed on or after January 1, 2016 unless both of the following apply:
(a) The person’s criminal liability is based on conduct that includes either a voluntary act or an omission to perform an act or duty that the person is capable of performing.
(b) The person has the requisite degree of culpability for each element of the offense as to which a culpable mental state is specified by the language defining the offense.”
MCL 8.9(8)-(9) provide:
“(8) If a statute defining an offense prescribes a culpable mental state but does not specify the element to which it applies, the prescribed culpable mental state applies to each material element of the offense that necessarily requires a culpable mental state.
(9) The mere absence of a specified state of mind for an element of a covered offense shall not be construed to mean that the legislature affirmatively intended not to require the prosecution to prove any state of mind.”
MCL 8.9(2) provides:
“If the statutory language defining a criminal offense does not specify any degree of culpability and plainly imposes strict criminal liability for the conduct described in the statute, then culpability is not required for a person to be guilty of the offense. The fact that a subsection of a statute plainly imposes strict liability for an offense defined in that subsection does not by itself plainly impose strict criminal liability for an offense defined in another subsection of that statute that does not specify a degree of culpability.”
D.Degree of Culpability Satisfying Intent, Knowledge, or Recklessness Requirement
MCL 8.9(5) provides:
“If a statute defining a criminal offense provides that negligence suffices to establish an element of the offense, then intent, knowledge, or recklessness is also sufficient culpability to satisfy that element. If recklessness suffices to establish an element of an offense, then knowledge or intent is also sufficient culpability to satisfy that element. If knowledge suffices to establish an element of an offense, then intent is also sufficient culpability to satisfy that element.”
MCL 8.9(3) provides:
“Except as provided in [MCL 8.9(4)], if statutory language defining an element of a criminal offense that is related to knowledge or intent or as to which mens rea could reasonably be applied neither specifies culpability nor plainly imposes strict liability, the element of the offense is established only if a person acts with intent, knowledge, or recklessness.”
MCL 8.9(4) provides, however, that MCL 8.9(3) “does not relieve the prosecution of the burden of proving the culpable mental state required by any definition incorporated into the offense.”
F.Voluntary Intoxication2
MCL 8.9(6) provides:
“It is not a defense to a crime that the defendant was, at the time the crime occurred, under the influence of or impaired by a voluntarily and knowingly consumed alcoholic liquor, drug, including a controlled substance, other substance or compound, or combination of alcoholic liquor, drug, or other substance or compound. However, it is an affirmative defense to a specific intent crime, for which the defendant has the burden of proof by a preponderance of the evidence, that he or she voluntarily ingested a legally obtained and properly used medication or other substance and did not know and reasonably should not have known that he or she would become intoxicated or impaired.”3
See Section 10.2(E) for additional discussion of intoxication as a defense.
G.Intent and Strict Liability Under the Common Law
“Whether the Legislature intended a statute to impose strict liability or intended it to require proof of criminal intent is a matter of statutory interpretation[.]” People v Haveman, 328 Mich App 480, 484 (2019) (quotation marks and citation omitted). “Criminal intent can be one of two types: the intent to do the illegal act alone (general criminal intent) or an act done with some intent beyond the doing of the act itself (specific intent).” Id. at 485 (quotation marks and citation omitted). To determine whether an offense requires specific or general intent, a court must look to the legislative intent and the specific language of the statute. People v Henry (Scott), 239 Mich App 140, 144 (1999). “Words typically found in specific intent statutes include ‘knowingly,’ ‘willfully,’ ‘purposely,’ and ‘intentionally.’” People v Davenport (Bruce), 230 Mich App 577, 580 (1998).
“‘[W]here the criminal statute is a codification of the common law, and where mens rea was a necessary element of the crime at common law,’ courts will interpret statutes as including ‘knowledge as a necessary element,’ even where the Legislature fails to include such language.” Haveman, 328 Mich App at 486, quoting People v Quinn, 440 Mich 178, 185-186 (1992). “On the other hand, ‘where the offense in question does not codify a common-law offense and the statute omits the element of knowledge or intent, the United States Supreme Court examines the intent of the Legislature to determine whether it intended that knowledge to be proven as an element of the offense, or whether it intended to hold the offender liable regardless of what he knew or did not know.” Haveman, 328 Mich App at 486, quoting Quinn, 440 Mich at 186.
“Strict liability for a criminal offense is disfavored . . . based on the axiom that wrongdoing must be conscious to be criminal.” Haveman, 328 Mich App at 487 (quotation marks and citation omitted). “That principle explains why ‘courts will infer an element of criminal intent when an offense is silent regarding mens rea unless the statute contains an express or implied indication that the legislative body intended that strict liability be imposed.’” Id. at 487, quoting People v Kowalski, 489 Mich 488, 499 n 12 (2011).
“Relevant to determining whether the Legislature intended to make an offense strict liability is:
‘(1) whether the statute is a codification of common law;
(2) the statute’s legislative history or its title;
(3) guidance to interpretation provided by other statutes;
(4) the severity of the punishment provided;
(5) whether the statute defines a public-welfare offense, and the severity of potential harm to the public;
(6) the opportunity to ascertain the true facts; and
(7) the difficulty encountered by prosecuting officials in proving a mental state.’” Haveman, 328 Mich App at 480, quoting People v Adams, 262 Mich App 89, 93-94 (2004).