Assistant Attorney General Leslie R. Caldwell Testifies before Senate Judiciary Committee at Hearing Entitled “The Adequacy of Criminal Intent Standards in Federal Prosecutions”

Chairman [Chuck] Grassley, Senator [Dick] Durbin and distinguished members of the committee – thank you for the opportunity to appear this morning to provide the perspective of the Department of Justice on potential reforms to the federal criminal code concerning mens rea requirements.  

This issue, and today’s hearing, is of great importance to the department and our prosecutors.  The department has grave concerns about possible enactment of an across-the-board, default mens rea standard, which will seriously harm our basic ability to prosecute federal crimes. 

The establishment of a default mens rea standard for all existing federal criminal laws would unleash sweeping changes across the entire United States Code.  It would create massive uncertainty in the law, undermine the enforcement of many criminal laws and allow defendants charged with serious crimes – including terrorism, violent crime, child exploitation offenses and corporate fraud – to tie up federal courts in extensive litigation and potentially escape liability for very serious criminal conduct. 

There simply is no need for a sweeping, one-size-fits-all, default mens rea.  The vast majority of federal criminal statutes already require the government to prove beyond a reasonable doubt some level of mens rea for at least one or more elements of the crime – whether expressly, or as a matter of binding judicial precedent.

However, pending legislative proposals in both the House and Senate would apply a default mens rea standard to a wide array of existing federal criminal laws, affecting many statutes that do not contain an express mens rea for each and every element.  

For example:

• In the National Security realm: 18 U.S.C. § 2332 criminalizes murder of U.S. nationals outside of the United States.  If the pending legislation is enacted, prosecutors could be required to prove that a murderer or terrorist knew that a victim was a national of the United States, which would be extremely difficult or impossible to establish. 
• Assaulting and Killing Federal Officers: 18 U.S.C. § 111 bans assaulting, resisting or impeding federal officers or employees, and §1114 criminalizes the killing of federal officers engaged in their duties.  There is no explicit mens rea requirement in these statutes.  If a default mens rea standard were applied, prosecutors could have to prove that a defendant knew that the officer he or she assaulted or killed was a federal officer. 
• The Sexual Exploitation of Children and Production of Child Pornography: Every federal appellate court to have considered this issue has held that for prosecutions under 18 U.S.C § 2251(a), the statute criminalizing the sexual exploitation of children and the production of child pornography, the defendant’s knowledge of the age of the minor is not a required element of the offense.  Contrary to that well-settled precedent, a default mens rea standard could force the government to prove in every prosecution that the defendant knew the victim’s age.

Mr. Chairman, these are just a few examples of the potential havoc that a default mens rea proposal could wreak on prosecutors in their efforts to combat serious violent crime and terrorism, and to protect our children from exploitation and abuse.

Moreover, proposals for a default mens rea would severely weaken important statutes that are critical to protecting health and safety, for example those that punish the sale of contaminated foods and drugs which can – and have – sickened and killed people. 

Mr. Chairman, an across-the-board, default mens rea standard would seriously undermine important prosecutions.  However, the department is willing to work with this committee on any concerns members have regarding specific federal statutes.  And, we support the proposal that would require an inventory of federal criminal laws and identification of laws that lack an explicit mens rea requirement. 

Finally, the department hopes that the debate regarding mens rea does not prevent passage of critical sentencing reform legislation.

Thank you again for inviting the department to this hearing.  We appreciate the opportunity to discuss criminal code reform, and I would be happy to answer any questions you might have.