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Johnson on Mens Reas for Sexual Abuse

By Lawrence Solum

Eric Alan Johnson (University of Illinois College of Law) has posted Mens Rea for Sexual Abuse: The Case for Defining the Acceptable Risk (Journal of Criminal Law & Criminology, Vol. 99, No. 1, 2009) on SSRN. Here is the abstract:

The persistence of strict criminal liability for child sexual abuse is attributable, at least in part, to the shortcomings of the existing alternatives, namely, the recklessness and criminal negligence standards. These two standards require juries to define the acceptable level of risk on a case-by-case basis. Juries are ill-equipped to make this calculation in sexual abuse cases, however, and their efforts to do so almost invariably are skewed by evidence of the victim?s unchastity. This Article first explores the shortcomings of the recklessness and criminal negligence standards in this setting, and then attempts to develop a viable alternative. Under the proposed alternative, the legislature, not the jury, would define the acceptable risk of sexual imposition. It would calculate this invariant probability threshold in much the same way that juries calculate the acceptable risk in recklessness and criminal negligence cases ? by assigning values to the gravity of the potential harm and to the social utility of the conduct. Under this scheme, the jury would be responsible only for deciding whether the risk of sexual imposition exceeded this invariant probability threshold in the defendant?s case.

Full post as published by Legal Theory Blog on May 27, 2010 (boomark / email).