Title: Mens Rea Reform Act of 2021
Policy area: Crime and Law Enforcement

Summary:
Mens Rea Reform Act of 2021
This bill establishes a default mens rea standard (i.e., state of mind requirement) for federal criminal offenses—statutory and regulatory—that lack an explicit standard.
The government must generally prove that a defendant acted willfully with respect to each element of an offense for which the text does not specify a state of mind.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 739 Introduced in Senate (IS)]

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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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Mens Rea Reform Act of 2021''.

SEC. 2. STATE OF MIND ELEMENT FOR CRIMINAL OFFENSES.

    (a) In General.--Chapter 1 of title 18, United States Code, is 
amended by adding at the end the following:
``Sec. 28. State of mind when not otherwise specifically provided
    ``(a) Definitions.--In this section--
            ``(1) the term `covered offense'--
                    ``(A) means an offense--
                            ``(i) specified in--
                                    ``(I) this title or any other Act 
                                of Congress;
                                    ``(II) any regulation; or
                                    ``(III) any law (including 
                                regulations) of any State or foreign 
                                government incorporated by reference 
                                into this title or any other Act of 
                                Congress; and
                            ``(ii) that is punishable by imprisonment, 
                        a maximum criminal fine of at least $2,500, or 
                        both; and
                    ``(B) does not include--
                            ``(i) any offense set forth in chapter 47 
                        or chapter 47A of title 10; or
                            ``(ii) any offense incorporated by section 
                        13(a) of this title;
            ``(2) the term `knowingly', as related to an element of an 
        offense, means--
                    ``(A) if the element involves the nature of the 
                conduct of a person or the attendant circumstances, 
                that the person is aware that the conduct of the person 
                is of that nature or that such circumstances exist; and
                    ``(B) if the element involves a result of the 
                conduct of a person, that the person is aware that it 
                is practically certain that the conduct of the person 
                will cause such a result;
            ``(3) the term `state of mind' means willfully, 
        intentionally, maliciously, knowingly, recklessly, wantonly, 
        negligently, with reason to believe, or any other word or 
        phrase that is synonymous with or substantially similar to any 
        such term; and
            ``(4) the term `willfully', as related to an element of an 
        offense, means--
                    ``(A) that the person acted with knowledge that the 
                person's conduct was unlawful; and
                    ``(B) if the element involves the nature, attendant 
                circumstances, object, or result of the conduct of a 
                person, that--
                            ``(i) the person had knowledge of the 
                        nature, attendant circumstances, object, or 
                        result of his or her conduct; and
                            ``(ii) it was the conscious object of the 
                        person to engage in conduct--
                                    ``(I) of that nature;
                                    ``(II) with that attendant 
                                circumstance;
                                    ``(III) with that object; or
                                    ``(IV) to cause such a result.
    ``(b) Default Requirement.--Except as provided in subsections (c) 
and (d), a covered offense shall be construed to require the Government 
to prove beyond a reasonable doubt that the defendant acted--
            ``(1) with the state of mind specified in the text of the 
        covered offense for each element of the offense for which the 
        text specifies a state of mind; and
            ``(2) willfully, with respect to any element of the offense 
        for which the text of the covered offense does not specify a 
        state of mind.
    ``(c) Failure To Distinguish Among Elements.--Except as provided in 
subsection (d), if the text of a covered offense specifies the state of 
mind required for commission of the covered offense without specifying 
the elements of the covered offense to which the state of mind applies, 
the state of mind specified shall apply to all elements of the covered 
offense, unless a contrary purpose plainly appears.
    ``(d) Exceptions.--
            ``(1) In general.--Subsections (b)(2) and (c) shall not 
        apply with respect to--
                    ``(A) any element for which the text of the covered 
                offense makes clear that Congress affirmatively 
                intended not to require the Government to prove any 
                state of mind with respect to such element;
                    ``(B) any element of a covered offense, to the 
                extent that the element establishes--
                            ``(i) subject matter jurisdiction over the 
                        covered offense; or
                            ``(ii) venue with respect to trial of the 
                        covered offense; or
                    ``(C) any element of a covered offense, to the 
                extent that applying subsections (b)(2) and (c) to such 
                element would lessen the degree of mental culpability 
                that the Government is required to prove with respect 
                to that element under--
                            ``(i) precedent of the Supreme Court of the 
                        United States; or
                            ``(ii) any other provision of this title, 
                        any other Act of Congress, or any regulation.
            ``(2) Mere absence insufficient.--For purposes of paragraph 
        (1)(A), the mere absence of a specified state of mind for an 
        element of a covered offense in the text of the covered offense 
        shall not be construed to mean that Congress affirmatively 
        intended not to require the Government to prove any state of 
        mind with respect to that element.
    ``(e) Applicability.--This section shall apply with respect to a 
covered offense--
            ``(1) without regard to whether the provision or provisions 
        specifying the covered offense are enacted, promulgated, or 
        finalized before, on, or after the date of enactment of this 
        section; and
            ``(2) that occurred--
                    ``(A) on or after the date of enactment of this 
                section; or
                    ``(B) before the date of enactment of this section, 
                unless--
                            ``(i) applying this section to such covered 
                        offense would--
                                    ``(I) punish as a crime conduct 
                                that was innocent when done;
                                    ``(II) increase the punishment for 
                                the covered offense; or
                                    ``(III) deprive a person charged 
                                with the covered offense of any defense 
                                available according to law at the time 
                                the covered offense occurred;
                            ``(ii) a jury has been empaneled and sworn 
                        in a prosecution for the covered offense before 
                        the date of enactment of this section;
                            ``(iii) the first witness has been sworn in 
                        a prosecution for the covered offense tried 
                        without a jury before the date of enactment of 
                        this section; or
                            ``(iv) a sentence has been imposed 
                        following a plea of guilty or nolo contendere 
                        in a prosecution for the covered offense before 
                        the date of enactment of this section.
    ``(f) Subsequently Enacted Laws.--No law enacted after the date of 
enactment of this section shall be construed to repeal, modify the text 
or effect of, or supersede in whole or in part this section, unless 
such law specifically refers to this section and explicitly repeals, 
modifies the text or effect of, or supersedes in whole or in part this 
section.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 1 of title 18, United States Code, is amended by adding at the 
end the following:

``28. State of mind when not otherwise specifically provided.''.
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