Mistake of law
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| Criminal defenses |
|---|
| Part of the common law series |
| Defenses to crime |
| Actual innocence |
| Excuse and exculpation |
| Defenses that deny the act: |
| Alibi · Mistaken identity |
| Frameup · Falsified evidence |
| False confession · Automatism |
| Defenses that negate intent: |
| Infancy · Entrapment |
| Insanity · Mental disorder |
| M'Naghten Rules |
| Diminished responsibility |
| Mistake of law · Mistake of fact |
| Intoxication |
| Defenses that justify the act: |
| Self defense · Consent |
| Duress · Necessity |
| Provocation |
| See also Criminal Law |
| Criminal Procedure |
| Other areas of the common law |
| Contract law · Tort law · Property law |
| Wills and trusts · Evidence |
| Portals: Law · Criminal justice |
Mistake of law is a defense sometimes raised in criminal cases, although rarely with any success. It is a longstanding principle of public policy that "ignorance of the law is no excuse", so a person who commits a crime with the firmly-held, but mistaken, belief that the proposed act is permitted will nonetheless be held liable as a criminal.
[edit] General principles
As a matter of expediency, there is an irrebuttable presumption that people who are about to engage in an activity will satisfy themselves before they start that their plans will not break the law. For this purpose, all states publish the law and make it available for the public to buy at reasonable price and read whether in hard copy or electronic format. For example, a person should not be allowed to claim the honest belief that it is legal to grow marijuana for medical use. He or she should have investigated the local law before beginning cultivation (although it is admitted that juries can as a matter of law exercise their right to jury nullification in their verdicts when a trial does not match their collective values).
The presumption will also apply in the potentially unfair situation of a change in the law which takes place when the accused had no opportunity to become aware of it, e.g. the accused was out hunting in the wilderness and did not know that the law changed to protect an endangered species. This principle is based on a line of old case authority decided before the invention of radio and the modern technologies of communication. It is almost inconceivable today that a person could fail to be aware that a law was about to be changed if that law was going to affect some aspect of his or her activities. If the hunter went into the wild knowing that the relevant law could be changed at any time, he or she was reckless as to the state of the law when killing the relevant animal and so would not have benefit of the defense.
Conversely, under the doctrine of impossibility, no crime is committed if a person mistakenly intends to break the law. For instance, if a person grows oregano while honestly believing it is a crime to grow oregano, this is an example of legal impossibility. In a legal system which adheres to the doctrine of legal impossibility, no consequence will come of that action despite the grower's intent to break the law. An example of a related concept of factual impossibility would be if a person grows oregano while honestly believing that the oregano is actually marijuana (in a jurisdiction where this is illegal). Most jurisdictions allow legal impossibility as a defense but not factual impossibility. [1] (see also actus reus)
Some states make a distinction between a mistake as to the substance and effect of existing laws, and a mistake that the law creates a specific right to act in the particular way. Suppose, for example, that A, the owner of a vehicle, takes it into a garage for repair. When returning to collect it, A finds that the vehicle has been left parked in the street. If he has an honest belief that he has the right as an owner to retake possession of the vehicle without paying the outstanding bill for the repairs, he will not steal it despite the fact that the garage holds a lien over the vehicle and so has the better right to possession until the bill is paid. This form of the defense is difficult to prove because the defendant must be able to prove that he believed in something more positive than the law permitted the particular behavior. The belief must be that the law creates and vests a specific right to act in that way. In English law, a limited form of statutory offense is termed "claim of right". Under the Theft Act 1968 and the Criminal Damage Act 1971, a defense will arise if the defendant honestly believes that he is entitled to act in the way he did and this will negate the relevant mens rea element (e.g. of dishonesty under s2 Theft Act 1968). In Chamberlain v Lindon [1998] 1 WLR 1252 [2] demolished a wall to protect a right-of-way, Despite allowing nine months to pass before acting, Lindon honestly believed that it was immediately necessary to protect his legal rights without having to resort to civil litigation. For the purposes of s5(2):
- it is not necessary to decide whether Lindon’s action was justified as a matter of civil law. For the purpose of the criminal law, what matters is whether Lindon believed that his actions were reasonable, i.e. a subjective test.
It seems, therefore, that a "lawful excuse" will arise when a person honestly but mistakenly believes that the actions are necessary and reasonable. Whether the belief is justified is irrelevant.
[edit] Mistake of non-governing law in the United States
One narrow area of exception occurs where a person makes a mistake of non-governing law. For example, suppose Jennifer is married to Judd, but decides to get a divorce in order to marry Ben. However, Jennifer mistakenly believes that the divorce was final when she submitted the paperwork required by the state, and did not realize that she had to wait for a court to pronounce her divorced. In the interim, she marries Ben, and so is technically committing bigamy because she has married a second man before her divorce from the first was complete. Jennifer's mistake was not one of governing law (she did not mistakenly believe it was legal to be married to two people), but rather a mistake of non-governing law, which is akin to a mistake of fact. Depending on the jurisdiction in which the act took place, Jennifer may be allowed to raise the defense of mistake of law in such a scenario.
