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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Mens Rea Reform Act 

5 of 2021’’. 

6 SEC. 2. STATE OF MIND ELEMENT FOR CRIMINAL OF7 FENSES. 

8 (a) IN GENERAL.—Chapter 1 of title 18, United 

9 States Code, is amended by adding at the end the fol10 lowing: 

2 

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1 ‘‘§ 28. State of mind when not otherwise specifically 

2 provided 

3 ‘‘(a) DEFINITIONS.—In this section— 

4 ‘‘(1) the term ‘covered offense’— 

5 ‘‘(A) means an offense— 

6 ‘‘(i) specified in— 

7 ‘‘(I) this title or any other Act of 

8 Congress; 

9 ‘‘(II) any regulation; or 

10 ‘‘(III) any law (including regula11 tions) of any State or foreign govern12 ment incorporated by reference into 

13 this title or any other Act of Con14 gress; and 

15 ‘‘(ii) that is punishable by imprison16 ment, a maximum criminal fine of at least 

17 $2,500, or both; and 

18 ‘‘(B) does not include— 

19 ‘‘(i) any offense set forth in chapter 

20 47 or chapter 47A of title 10; or 

21 ‘‘(ii) any offense incorporated by sec22 tion 13(a) of this title; 

23 ‘‘(2) the term ‘knowingly’, as related to an ele24 ment of an offense, means— 

25 ‘‘(A) if the element involves the nature of 

26 the conduct of a person or the attendant cirVerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S739.IS S739
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1 cumstances, that the person is aware that the 

2 conduct of the person is of that nature or that 

3 such circumstances exist; and 

4 ‘‘(B) if the element involves a result of the 

5 conduct of a person, that the person is aware 

6 that it is practically certain that the conduct of 

7 the person will cause such a result; 

8 ‘‘(3) the term ‘state of mind’ means willfully, 

9 intentionally, maliciously, knowingly, recklessly, wan10 tonly, negligently, with reason to believe, or any 

11 other word or phrase that is synonymous with or 

12 substantially similar to any such term; and 

13 ‘‘(4) the term ‘willfully’, as related to an ele14 ment of an offense, means— 

15 ‘‘(A) that the person acted with knowledge 

16 that the person’s conduct was unlawful; and 

17 ‘‘(B) if the element involves the nature, at18 tendant circumstances, object, or result of the 

19 conduct of a person, that— 

20 ‘‘(i) the person had knowledge of the 

21 nature, attendant circumstances, object, or 

22 result of his or her conduct; and 

23 ‘‘(ii) it was the conscious object of the 

24 person to engage in conduct— 

25 ‘‘(I) of that nature; 

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1 ‘‘(II) with that attendant cir2 cumstance; 

3 ‘‘(III) with that object; or 

4 ‘‘(IV) to cause such a result. 

5 ‘‘(b) DEFAULT REQUIREMENT.—Except as provided 

6 in subsections (c) and (d), a covered offense shall be con7 strued to require the Government to prove beyond a rea8 sonable doubt that the defendant acted— 

9 ‘‘(1) with the state of mind specified in the text 

10 of the covered offense for each element of the of11 fense for which the text specifies a state of mind; 

12 and 

13 ‘‘(2) willfully, with respect to any element of 

14 the offense for which the text of the covered offense 

15 does not specify a state of mind. 

16 ‘‘(c) FAILURE TO DISTINGUISH AMONG ELE17 MENTS.—Except as provided in subsection (d), if the text 

18 of a covered offense specifies the state of mind required 

19 for commission of the covered offense without specifying 

20 the elements of the covered offense to which the state of 

21 mind applies, the state of mind specified shall apply to 

22 all elements of the covered offense, unless a contrary pur23 pose plainly appears. 

24 ‘‘(d) EXCEPTIONS.— 

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1 ‘‘(1) IN GENERAL.—Subsections (b)(2) and (c) 

2 shall not apply with respect to— 

3 ‘‘(A) any element for which the text of the 

4 covered offense makes clear that Congress af5 firmatively intended not to require the Govern6 ment to prove any state of mind with respect to 

7 such element; 

8 ‘‘(B) any element of a covered offense, to 

9 the extent that the element establishes— 

10 ‘‘(i) subject matter jurisdiction over 

11 the covered offense; or 

12 ‘‘(ii) venue with respect to trial of the 

13 covered offense; or 

14 ‘‘(C) any element of a covered offense, to 

15 the extent that applying subsections (b)(2) and 

16 (c) to such element would lessen the degree of 

17 mental culpability that the Government is re18 quired to prove with respect to that element 

19 under— 

20 ‘‘(i) precedent of the Supreme Court 

21 of the United States; or 

22 ‘‘(ii) any other provision of this title, 

23 any other Act of Congress, or any regula24 tion. 

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1 ‘‘(2) MERE ABSENCE INSUFFICIENT.—For pur2 poses of paragraph (1)(A), the mere absence of a 

3 specified state of mind for an element of a covered 

4 offense in the text of the covered offense shall not 

5 be construed to mean that Congress affirmatively in6 tended not to require the Government to prove any 

7 state of mind with respect to that element. 

8 ‘‘(e) APPLICABILITY.—This section shall apply with 

9 respect to a covered offense— 

10 ‘‘(1) without regard to whether the provision or 

11 provisions specifying the covered offense are enacted, 

12 promulgated, or finalized before, on, or after the 

13 date of enactment of this section; and 

14 ‘‘(2) that occurred— 

15 ‘‘(A) on or after the date of enactment of 

16 this section; or 

17 ‘‘(B) before the date of enactment of this 

18 section, unless— 

19 ‘‘(i) applying this section to such cov20 ered offense would— 

21 ‘‘(I) punish as a crime conduct 

22 that was innocent when done; 

23 ‘‘(II) increase the punishment for 

24 the covered offense; or 

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1 ‘‘(III) deprive a person charged 

2 with the covered offense of any de3 fense available according to law at the 

4 time the covered offense occurred; 

5 ‘‘(ii) a jury has been empaneled and 

6 sworn in a prosecution for the covered of7 fense before the date of enactment of this 

8 section; 

9 ‘‘(iii) the first witness has been sworn 

10 in a prosecution for the covered offense 

11 tried without a jury before the date of en12 actment of this section; or 

13 ‘‘(iv) a sentence has been imposed fol14 lowing a plea of guilty or nolo contendere 

15 in a prosecution for the covered offense be16 fore the date of enactment of this section. 

17 ‘‘(f) SUBSEQUENTLY ENACTED LAWS.—No law en18 acted after the date of enactment of this section shall be 

19 construed to repeal, modify the text or effect of, or super20 sede in whole or in part this section, unless such law spe21 cifically refers to this section and explicitly repeals, modi22 fies the text or effect of, or supersedes in whole or in part 

23 this section.’’. 

24 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

25 The table of sections for chapter 1 of title 18, United 

8 

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1 States Code, is amended by adding at the end the fol2 lowing: 

‘‘28. State of mind when not otherwise specifically provided.’’. 

Æ