Wednesday, May 3, 2017 | No comments

Changes Needed to Utah’s Domestic Violence Law as Part of Larger Mens Rea Reform

By Michael Melendez

Earlier this week, we released a short video about the need to alter the current state statute on domestic violence. As it stands, the statute is a prime example of how too often the law does not judge a person’s intent, but instead only looks to see if the person violated the strict letter of the law. Domestic violence laws are meant to be used to prohibit and punish those who injure or harm others they live with—spouses, partners, roommates, etc.

But as government inevitably does, the current statute goes too far and punishes innocent people. This comes about because in Utah if you “commit any offense against property,” specifically “the property of another,” you are also committing domestic violence. On its face that seems fine, until you think back to your recent joint tax return that you filed and you realize that all your property is jointly owned with your spouse. Therefore, that property you just smashed on the ground is considered to be “the property of another”.

All of a sudden, depending on the cost of the property, you might be looking at charges up to a 2nd degree felony.

This is where mens rea comes into play. In Latin it means “guilty mind,” but more importantly it refers to the concept of criminal intent. Laws that consider mens rea protect people who engage in prohibited conduct without any knowledge of or intent to violate the law and that they could not reasonably have anticipated would violate a criminal law.

In our domestic violence case under mens rea reform, it wouldn’t be enough that someone broke a mirror, but instead a higher proof standard would need to be used to show that the person intended “to harass, intimidate, or cause fear in a cohabitant.”

This is exactly what Representative Kim Coleman attempted to do with House Bill 323 this past legislative session. Her domestic violence reform bill stalled in a Senate committee, but we fully expect her to bring it back next year as an important part of this overall mens rea discussion. Domestic violence isn’t the only type of offense that is affected by mens rea, which encompasses most offenses that have created a culture of overcriminalization in this country.

Prosecutors should be required to prove criminal or malicious intent rather than mere strict liability for offenses. Back in 2013, the House Judiciary Committee in Congress heard from a group advocating this type of reform. Then in 2015, U.S. Senator Orrin Hatch introduced a bill called the Mens Rea Reform Act. By requiring intent for most crimes, we could eliminate the the misuse and overuse of criminal laws and penalties to address societal problems, as well as many unjust or bizarre prosecutions.

In order to avoid unpredictable and inconsistent results on criminal prosecutions, both Utah and the federal government need to establish an adequate default mens rea requirement that the courts could look to for clear guidance about what to do when a criminal statute does not explicitly require any state of mind.

Only then can we stop the “scope creep” as discussed in our domestic violence video and instead protect true victims. Too often, innocent people are turned into criminals. We hope the Utah legislature will take a closer look at Representative Coleman’s bill next year as well as consider broader mens rea reform.

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About the Author

Michael is Director of Policy for Libertas Institute, overseeing our legislative and advocacy efforts. Prior to Libertas, Michael managed and worked on dozens of campaigns for liberty-minded candidates all over the country, served as a staffer to a state senator and the government affairs manager for Waterford Institute, a digital education non-profit.


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