Mistake of Law

February 6, 2006

The basic difference which divides the court may be simply put. Suppose the case of a man who has committed an act which is criminal not because it is inherently wrong or immoral but solely because it violates a criminal statute. He has committed the act in complete good faith under the mistaken but entirely reasonable assumption that the act does not constitute an offense because it is permitted by the wording of the statute. Does the law require that this man be punished? The majority says that it does and holds that (1) Penal Law § 15.20 (2) (a) must be construed so that the man is precluded from offering a defense based on his mistake of law and (2) such construction is compelled by prevailing considerations of public policy and criminal jurisprudence. We take issue with the majority on both propositions.

There can be no question that under the view that the purpose of the criminal justice system is to punish blameworthiness or “choosing freely to do wrong”, our supposed man who has acted innocently and without any intent to do wrong should not be punished. Indeed, under some standards of morality he has done no wrong at all. Since he has not knowingly committed a wrong there can be no reason for society to exact retribution. Because the man is law-abiding and could not have acted but for his mistaken assumption as to the law, there is no need for punishment to deter him from further unlawful conduct. Traditionally, however, under the ancient rule of Anglo-American common law that ignorance or mistake of law is no excuse, our supposed man would be punished.

The maxim “ignorantia legis neminem excusat” finds its roots in Medieval law when the “actor’s intent was irrelevant since the law punished the act itself” and when, for example, the law recognized no difference between an intentional killing and one that was accidental. Although the common law has gradually evolved from its origins in Anglo-Germanic tribal law (adding the element of intent [mens rea] and recognizing defenses based on the actor’s mental state — e.g., justification, insanity and intoxication) the dogmatic rule that ignorance or mistake of law is no excuse has remained unaltered. Various justifications have been offered for the rule, but all are frankly pragmatic and utilitarian — preferring the interests of society (e.g., in deterring criminal conduct, fostering orderly judicial administration, and preserving the primacy of the rule of law) to the interest of the individual in being free from punishment except for intentionally engaging in conduct which he knows is criminal.

Today there is widespread criticism of the common-law rule mandating categorical preclusion of the mistake of law defense. The utilitarian arguments for retaining the rule have been drawn into serious question but the fundamental objection is that it is simply wrong to punish someone who, in good-faith reliance on the wording of a statute, believed that what he was doing was lawful. It is contrary to “the notion that punishment should be conditioned on a showing of subjective moral blameworthiness”. This basic objection to the maxim “ignorantia legis neminem excusat” may have had less force in ancient times when most crimes consisted of acts which by their very nature were recognized as evil (malum in se). In modern times, however, with the profusion of legislation making otherwise lawful conduct criminal (malum prohibitum), the “common law fiction that every man is presumed to know the law has become indefensible in fact or logic”.

People v. Marrero, 69 N.Y.2d 382, 392-396 (1987).

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