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There is no bright line test to determine which crimes require a mental element and those that do not. However, there is one type of crime recognized by the courts which has been traditionally exempt from the mens rea requirement, the public welfare or regulatory offense. Such public welfare offenses have been recognized by the Supreme Court in limited circumstances. The Supreme Court has noted that one category of public welfare offense is the illegal sale of intoxicating liquors, although it did not discuss this category in depth. In addition, the criminal penalties which attach to public welfare offenses are usually in the misdemeanor category because they are employed as the means of regulation. With public welfare offenses, a mens rea requirement is not needed to ensure fair notice. As long as an accused is aware that he is in possession of or is dealing with the regulated item he must be presumed to be aware of the regulation, and must ascertain at his peril whether his conduct comes within the inhibition of the statute. Thus, the Court relies on the nature of the statute and the particular character of the items regulated to determine whether conventional mens rea requirements have been eliminated.
Undercover police observed nude dancing in a bar and violations of La. Rev. Stat. Ann. § 26:90(A)(13) and (D)(3), which prohibited lewd dancing on premises licensed to serve alcohol. The nude dancers repeatedly exposed various private body parts. Defendant, the owner of the bar, was arrested and charged under § 26:90(A)(13) and (D)(3). Defendant filed a motion to dismiss, contending that the statutes in question failed to set forth a scienter requirement, thus improperly permitted a prosecution without a showing of criminal intent or culpable knowledge. The trial court declared the statutes in question unconstitutional because of the lack of specificity as to intent. The state sought direct review to the Louisiana Supreme Court.
Were statutes prohibiting lewd dancing on premises licensed to serve alcohol unconstitutional because of the lack of specificity as to intent?
The court reversed and remanded, holding that under the 21st Amendment, a state had the absolute power to prohibit totally the sale of liquor within its boundaries and to regulate the sale of liquor. According to the Court, no constitutional violation was invoked simply because the statute would cause a bar owner to prevent others from exercising their First Amendment right to dance nude at his establishment. There was no mens rea requirement for public welfare laws.