Mens Rea Reform Act of 2021

II 117TH CONGRESS 1ST SESSION S. 739 To specify the state of mind required for conviction for criminal offenses that lack an expressly identified state of mind, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 11, 2021 Mr. LEE (for himself, Mr. TILLIS, and Mr. PAUL) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To specify the state of mind required for conviction for criminal offenses that lack an expressly identified state of mind, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Mens Rea Reform Act 4 of 2021’’. 5 SEC. 2. STATE OF MIND ELEMENT FOR CRIMINAL OF- 6 FENSES. 7 (a) IN GENERAL.—Chapter 1 of title 18, United 8 States Code, is amended by adding at the end the fol- 9 lowing: 10 VerDate Sep 11 2014 22:06 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S739.IS S739 2 •S 739 IS ‘‘§ 28. State of mind when not otherwise specifically 1 provided 2 ‘‘(a) DEFINITIONS.—In this section— 3 ‘‘(1) the term ‘covered offense’— 4 ‘‘(A) means an offense— 5 ‘‘(i) specified in— 6 ‘‘(I) this title or any other Act of 7 Congress; 8 ‘‘(II) any regulation; or 9 ‘‘(III) any law (including regula- 10 tions) of any State or foreign govern- 11 ment incorporated by reference into 12 this title or any other Act of Con- 13 gress; and 14 ‘‘(ii) that is punishable by imprison- 15 ment, a maximum criminal fine of at least 16 $2,500, or both; and 17 ‘‘(B) does not include— 18 ‘‘(i) any offense set forth in chapter 19 47 or chapter 47A of title 10; or 20 ‘‘(ii) any offense incorporated by sec- 21 tion 13(a) of this title; 22 ‘‘(2) the term ‘knowingly’, as related to an ele- 23 ment of an offense, means— 24 ‘‘(A) if the element involves the nature of 25 the conduct of a person or the attendant cir- 26 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S739.IS S739 3 •S 739 IS cumstances, that the person is aware that the 1 conduct of the person is of that nature or that 2 such circumstances exist; and 3 ‘‘(B) if the element involves a result of the 4 conduct of a person, that the person is aware 5 that it is practically certain that the conduct of 6 the person will cause such a result; 7 ‘‘(3) the term ‘state of mind’ means willfully, 8 intentionally, maliciously, knowingly, recklessly, wan- 9 tonly, negligently, with reason to believe, or any 10 other word or phrase that is synonymous with or 11 substantially similar to any such term; and 12 ‘‘(4) the term ‘willfully’, as related to an ele- 13 ment of an offense, means— 14 ‘‘(A) that the person acted with knowledge 15 that the person’s conduct was unlawful; and 16 ‘‘(B) if the element involves the nature, at- 17 tendant circumstances, object, or result of the 18 conduct of a person, that— 19 ‘‘(i) the person had knowledge of the 20 nature, attendant circumstances, object, or 21 result of his or her conduct; and 22 ‘‘(ii) it was the conscious object of the 23 person to engage in conduct— 24 ‘‘(I) of that nature; 25 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S739.IS S739 4 •S 739 IS ‘‘(II) with that attendant cir- 1 cumstance; 2 ‘‘(III) with that object; or 3 ‘‘(IV) to cause such a result. 4 ‘‘(b) DEFAULT REQUIREMENT.—Except as provided 5 in subsections (c) and (d), a covered offense shall be con- 6 strued to require the Government to prove beyond a rea- 7 sonable doubt that the defendant acted— 8 ‘‘(1) with the state of mind specified in the text 9 of the covered offense for each element of the of- 10 fense for which the text specifies a state of mind; 11 and 12 ‘‘(2) willfully, with respect to any element of 13 the offense for which the text of the covered offense 14 does not specify a state of mind. 15 ‘‘(c) FAILURE TO DISTINGUISH AMONG ELE- 16 MENTS.—Except as provided in subsection (d), if the text 17 of a covered offense specifies the state of mind required 18 for commission of the covered offense without specifying 19 the elements of the covered offense to which the state of 20 mind applies, the state of mind specified shall apply to 21 all elements of the covered offense, unless a contrary pur- 22 pose plainly appears. 23 ‘‘(d) EXCEPTIONS.— 24 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S739.IS S739 5 •S 739 IS ‘‘(1) IN GENERAL.—Subsections (b)(2) and (c) 1 shall not apply with respect to— 2 ‘‘(A) any element for which the text of the 3 covered offense makes clear that Congress af- 4 firmatively intended not to require the Govern- 5 ment to prove any state of mind with respect to 6 such element; 7 ‘‘(B) any element of a covered offense, to 8 the extent that the element establishes— 9 ‘‘(i) subject matter jurisdiction over 10 the covered offense; or 11 ‘‘(ii) venue with respect to trial of the 12 covered offense; or 13 ‘‘(C) any element of a covered offense, to 14 the extent that applying subsections (b)(2) and 15 (c) to such element would lessen the degree of 16 mental culpability that the Government is re- 17 quired to prove with respect to that element 18 under— 19 ‘‘(i) precedent of the Supreme Court 20 of the United States; or 21 ‘‘(ii) any other provision of this title, 22 any other Act of Congress, or any regula- 23 tion. 24 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S739.IS S739 6 •S 739 IS ‘‘(2) MERE ABSENCE INSUFFICIENT.—For pur- 1 poses of paragraph (1)(A), the mere absence of a 2 specified state of mind for an element of a covered 3 offense in the text of the covered offense shall not 4 be construed to mean that Congress affirmatively in- 5 tended not to require the Government to prove any 6 state of mind with respect to that element. 7 ‘‘(e) APPLICABILITY.—This section shall apply with 8 respect to a covered offense— 9 ‘‘(1) without regard to whether the provision or 10 provisions specifying the covered offense are enacted, 11 promulgated, or finalized before, on, or after the 12 date of enactment of this section; and 13 ‘‘(2) that occurred— 14 ‘‘(A) on or after the date of enactment of 15 this section; or 16 ‘‘(B) before the date of enactment of this 17 section, unless— 18 ‘‘(i) applying this section to such cov- 19 ered offense would— 20 ‘‘(I) punish as a crime conduct 21 that was innocent when done; 22 ‘‘(II) increase the punishment for 23 the covered offense; or 24 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S739.IS S739 7 •S 739 IS ‘‘(III) deprive a person charged 1 with the covered offense of any de- 2 fense available according to law at the 3 time the covered offense occurred; 4 ‘‘(ii) a jury has been empaneled and 5 sworn in a prosecution for the covered of- 6 fense before the date of enactment of this 7 section; 8 ‘‘(iii) the first witness has been sworn 9 in a prosecution for the covered offense 10 tried without a jury before the date of en- 11 actment of this section; or 12 ‘‘(iv) a sentence has been imposed fol- 13 lowing a plea of guilty or nolo contendere 14 in a prosecution for the covered offense be- 15 fore the date of enactment of this section. 16 ‘‘(f) SUBSEQUENTLY ENACTED LAWS.—No law en- 17 acted after the date of enactment of this section shall be 18 construed to repeal, modify the text or effect of, or super- 19 sede in whole or in part this section, unless such law spe- 20 cifically refers to this section and explicitly repeals, modi- 21 fies the text or effect of, or supersedes in whole or in part 22 this section.’’. 23 (b) TECHNICAL AND CONFORMING AMENDMENT.— 24 The table of sections for chapter 1 of title 18, United 25 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S739.IS S739 8 •S 739 IS States Code, is amended by adding at the end the fol- 1 lowing: 2 ‘‘28. State of mind when not otherwise specifically provided.’’. Æ VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S739.IS S739