Mistake of Law

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Generally, a mistaken belief about the law will not serve as an exculpatory defense to criminal actions. All persons are presumed to know and understand the law, except for minors or those of diminished mental capacity. Therefore a mistake of law defense is only allowed in rare circumstances.

A mistake of law may help a criminal defendant in specific intent cases through a showing that the defendant had no intention to commit the criminal action element of the charge. As an example, assume a defendant is accused of robbing another person. The defendant was of the belief that the victim owed him money and that he was merely engaging in self-help to retrieve the money he felt he was rightfully owed. The defendant therefore does not have the specific intent to “gain control over the property of another,” a requisite element of many robbery statutes. If the law does not allow for self-help but the defendant mistakenly believed that it did, then the court might find that the defendant’s mistake of law negated the specific intent element of the robbery charge.[1] In practice, the defendant’s counsel must show first that the accused can be found guilty of the alleged crime only if he deliberately broke the law (establishing specific intent requirement), and second, that the mistake or ignorance of the law at the time of the offense negated that specific intent element.

A mistake of law defense may also stand upon the defendant’s reasonable reliance on an official or government statement, such as an administrative order or interpretation by a public officer or government agency of a judicial or legislative decree. Mistaken advice from an attorney however does not create a mistake of law defense.[2]

International Law

The Rome Statute of the International Criminal Court provides for a limited mistake of law defense. Article 32(2) reads:

“A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33 [Superior Orders and Prescription of Law].”[3]

To date, no tribunal has exonerated a defendant before the ICC on mistake of law grounds.[4] In one judgment by the Special Court for Sierra Leone, the Trial Chamber confronted the defense of mistake of law in regards to recruiting child soldiers. The Court rejected the defendant’s mistake of law claim, finding that “[t]he rules of customary international law are not contingent on domestic practice in one country. Hence, it cannot be argued that a national practice creating an appearance of lawfulness can be raised as a defence of conduct violating international norms.”[5] The court avoided addressing mistake of law as a mens rea defense however, leaving open the possibility for its use under the Rome Statute in the future.

Specific Country Applications

Sri Lanka

Mistake or ignorance of the law is no defence to criminal liability. However, “[t]he effect of the misconception as to the law can be taken into consideration in determining the sentence that should be imposed by Court.”[6] Although a mistake of law will not serve as a defense, the facts surrounding the case may be set forth in order the negative any dishonest intent on the part of the defendant.

United States

Generally, both common law and the Model Penal Code provide that mistake or ignorance of the law is no excuse for criminal actions. However, a mistake of law defense is possible in limited circumstances where the defendant is ignorant or mistaken about the law.

  • Reasonable Reliance Doctrine

Under both common law and the Model Penal Code, a person is excused for committing a criminal offense if he reasonably relies on an official statement of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense. This official statement must be a statute or decision of the highest court in the jurisdiction later determined to be invalid, or an erroneous interpretation of a law as provided by a government officer normally in charge of interpreting the law. One’s personal interpretation of the law or erroneous advice from private counsel or local prosecutor will not support a mistake of law defense.[7]

  • Lambert Principle

At common law, everyone is presumed to know the law of the land. A very limited exception to this presumption was provided in Lambert v. California, where the court overturned the defendant’s conviction for failing to register with the city of Los Angeles as a prior convicted felon on constitutional due process grounds. The defendant was unaware of the registration requirement, but the Court found that the passive nature of the offense would excuse criminal liability. For instance, the law punished an omission as opposed to an active criminal commission, the duty to report was based on status rather than activity, and the offense was malum prohibitum (wrong because the law says its wrong).[8]

Similarly, the Model Penal Code’s fair notice exception applies where (1) a defendant does not believe his conduct to be illegal, and (2) the statute defining the offense is not known to him and was not reasonably made available to him before he violated the law.[9]

  • Mens Rea

At common law, a mistake of law, whether reasonable or unreasonable, can serve as a defense in specific intent crimes if it negates the specific intent element of the charge. As described in the mistaken robbery example in the Background section above, the defense will have the burden to show that his mistake of law negated any requisite mens rea required by the criminal statute. A mistake of law defense will not succeed in a case involving general intent or strict liability offenses.

Similarly, the Model Penal Code provides that mistake or ignorance of the law is a defense to criminal action if it negates a material element of the case, often applied to the mens rea element of criminal charges.[10]

  • Mistake of Non-Governing Law

A narrow additional exception occurs where a person makes a mistake of non-governing law, which is closer akin to a Mistake of Fact defense. The classic example comes in mistake regarding a divorce proceeding. A is married to B, but decides to get a divorce to marry Z. A files the necessary paperwork and mistakenly believes the divorce to be final despite needing a court order to make a final divorce pronouncement. A then marries Z, unaware that A is actually committing bigamy because A is still technically married to B. A’s mistake was not of governing law – A did not actually believe it was legal to marry two persons at the same time. Instead, the mistake is one of non-governing law – that A properly complied with divorce law. In this particular fact pattern the mistake of law defense may prevail.[11]

See Defenses