Languish Gheys and/or Lawtalkers to Me

[Gups]

I dunno.  Some serious crimes don't require a mens rea.  Why would this be different?  Theoretically speaking--I certainly agree from a policy standpoint, but is there a Canadian requirement that, say, felonies or your precious little hybrid offenses (bastards) include a mental element of intent rather than ours, which require, in some circumstances, none whatsoever?  (Famously, statutory rape--which when the perp is unaware of the age and has no reason to know it, is very similar to unwitting infection in the sense that the perp had no idea what he was doing was either wrong or was a crime.)

There are some regulatory offences which operate on strict liability - which means no mens rea.

But EVERY CRIME requires mens rea.  Stat rape has a mens rea - you need to show the accused knew, or more likely the accused should have known and was willfully blind, to the girl's age.

There are a number of UK criminal laws which are strict liability.


http://en.wikipedia.org/wiki/Strict_liability_(criminal)

[DGuller]

As for gay sex, I will have to take your word the chances are so great that your partner is infected that there should be a legal presumption of infection.  But I know a number of gay couples that would likely find such an inference rather insulting.

It's not about the chances, it's about the fact that it's enough to be "wrong" once in a thousand and it's still bad for you. You could just as well claim that it is offensive to require a good driver to wear a seat belt, because it's insulting to suggest he has a high chance of being in a car crash.

Holy crap.  Did you just make a relevant and coherent analogy?

Must be that "once in a thousand" thing Marty was talking about.

[Barrister]

I dunno.  Some serious crimes don't require a mens rea.  Why would this be different?  Theoretically speaking--I certainly agree from a policy standpoint, but is there a Canadian requirement that, say, felonies or your precious little hybrid offenses (bastards) include a mental element of intent rather than ours, which require, in some circumstances, none whatsoever?  (Famously, statutory rape--which when the perp is unaware of the age and has no reason to know it, is very similar to unwitting infection in the sense that the perp had no idea what he was doing was either wrong or was a crime.)

There are some regulatory offences which operate on strict liability - which means no mens rea.

But EVERY CRIME requires mens rea.  Stat rape has a mens rea - you need to show the accused knew, or more likely the accused should have known and was willfully blind, to the girl's age.

There are a number of UK criminal laws which are strict liability.


http://en.wikipedia.org/wiki/Strict_liability_(criminal)

Unless the term has a different meaning in the UK, strict liability offences still have a mens rea - it's just one of due dilligence.  There are offences which are absolute liability, which accords no defence of due dilligence, but those are limited to regulatory offences.

[Gups]

Strict liability in the UK means precisely that the prosecutor does not need to demonstrate mens rea to secure a conviction. I don't think there is such a thing as absolute liability.

To take an example from the Wiki article:

The imposition of strict liability may operate very unfairly in individual cases. For example, in Pharmaceutical Society of Great Britain v Storkwain (1986) 2 ALL ER 635, a pharmacist supplied drugs to a patient who presented a forged doctor's prescription, but was convicted even though the House of Lords accepted that the pharmacist was blameless.

[Barrister]

Strict liability in the UK means precisely that the prosecutor does not need to demonstrate mens rea to secure a conviction. I don't think there is such a thing as absolute liability.

To take an example from the Wiki article:

The imposition of strict liability may operate very unfairly in individual cases. For example, in Pharmaceutical Society of Great Britain v Storkwain (1986) 2 ALL ER 635, a pharmacist supplied drugs to a patient who presented a forged doctor's prescription, but was convicted even though the House of Lords accepted that the pharmacist was blameless.

Well then maybe the two systems have diverged on that point.

Your own link does discuss the Canadian approach and the Sault Ste. Marie case.

[crazy canuck]

First of all, I love how "gay sex" is automatically risky behavior to you - I thought this was about using protection and not who you fuck.

Ok if you are going to shift from 99.9999 percent of the time it is risky to now making this comment we are through here.