II 117th CONGRESS 1st Session S. 739 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. Short title This Act may be cited as the Mens Rea Reform Act of 2021 . 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: 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. .