(b) “interstate commerce" means commerce between one state, territory, possession, or the District of Columbia and another state, territory, possession, or the District of Columbia; (c) "foreign commerce" means commerce with a foreign country; (d) "President-elect" and "Vice President-elect" mean such persons as are the apparently successful candidates for the offices of President and Vice President, respectively, as ascertained from the results of the general elections held to determine the electors of President and Vice President in accordance with 3 U.S.C. §§ 1, 2; (e) "national credit institution” means a member bank of the Federal Reserve System; a bank, banking association, land bank, intermediate credit bank, bank for cooperatives, mortgage association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States; a bank the deposits of which are insured by the Federal Deposit Insurance Corporation; a Federal Savings and Loan Association; an "insured institution" as defined in 12 U.S.C. § 1724; and a "Federal Credit Union" as defined in 12 U.S.C. § 1752. Comment The definition of special maritime and territorial jurisdiction is taken from 18 U.S.C. § 7 and 49 U.S.C. § 1472 (k); the definitions of interstate and foreign commerce are from 18 U.S.C. § 10; the definitions of President-elect and Vice President-elect are from 18 U.S.C. § 1751(f); and the definition of national credit institution is substantially from 18 U.S.C. § 2113. For other commonly-used terms, see General Definitions in § 109. Chapter 3. Basis of Criminal Liability; §301. Basis of Liability for Offenses. (1) Voluntary Conduct. A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession, in violation of a statute which provides that the conduct is an offense. (2) Omissions. A person who omits to perform an act does not commit an offense unless a statute provides that the omission is an offense or otherwise provides that he has a duty to perform the act. (3) Publication Required. A person does not commit an offense if he engages in conduct in violation only of a statute or regulation thereunder that has not been published. Comment Federal criminal law does not, at present, contain statutes stating basic conditions of liability. Chapter 3 would make the treatment and understanding of these issues clear and uniform. Subsection (1) states the minimum condition of criminal liability: a person must voluntarily engage in conduct; that he has a certain status or that certain circumstances exist will not render him criminally liable. Conduct includes omissions and possessions. The meaning of the term "voluntary" could be illustrated by including a list of acts which are not to be considered as "voluntary;" or "voluntary" could be defined as that over which the actor has control. The latter possibility, it should be noted, could raise problems in the insanity defense area, among others. Subsection (2) restates present federal law: a person is not liable for an omission unless he has a duty to act. Subsection (3) constitutes the basic prohibition against secret criminal laws. § 302 Requirements of Culpability. (1) Kinds of Culpability. A person engages in conduct: (a) "intentionally" if, when he engages in the conduct, it is his purpose to do so, whether or not there is a further objective toward which the conduct is directed; (b) "knowingly" if, when he engages in the conduct, he knows or has a firm belief unaccompanied by substantial doubt that he is doing so, whether or not it is his purpose to do so; (c) "recklessly" if he engages in the conduct in conscious, plain and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct; (d) "negligently" if he engages in the conduct in unreasonable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct; (e) “willfully” if he engages in the conduct intentionally, knowingly, or recklessly; and (f) "culpably" if he engages in the conduct intentionally, knowingly, recklessly, or negligently. (2) Requirement of Willfulness for Crimes. If a statute or regulation thereunder defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the culpability that is required is willfully. (3) Factors to Which Requirement of Culpability Applies. (a) Except as otherwise expressly provided, where culpability is required, that kind of culpability is required with respect to every element of the conduct and attendant circumstances. (b) Except as otherwise expressly provided, if conduct is an offense if it causes a particular result, the required kind of culpability is required with respect to the result. (c) Except as otherwise expressly provided, culpability is not required with respect to any fact which is solely a basis for federal jurisdiction. (d) Except as otherwise expressly provided, no culpability is required with respect to facts which establish that a defense does not exist, if the defense is defined in part A of this Code or Chapter 10; otherwise the least kind of cupability required for the offense is required with respect to such facts. (e) A factor as to which it is expressly stated that it must “in fact” exist is a factor for which culpability is not required. (4) Specified Culpability Requirement Satisfied by Higher Culpability. If conduct is an offense if a person engages in it negligently, the conduct is an offense also if a person engages in it intentionally, knowingly, or recklessly. If conduct is an offense if a person engages in it recklessly, the conduct is an offense also if a person engages in it intentionally or knowingly. If conduct is an offense if a person engages in it knowingly, the conduct is an offense also if a person engages in it intentionally. (5) Knowledge or Belief That Conduct is an Offense Not Required. Except as otherwise expressly provided or unless the context otherwise requires, knowledge or belief that conduct is an offense is not an element of the conduct constituting the offense. (6) No Requirement of Culpability for Infractions. Except as otherwise expressly provided or unless the context otherwise requires, if a statute provides that conduct is an infraction without including a requirement of culpability, a person commits the infraction if he engages in the conduct either culpably or not culpably. Comment There is, at present, no general federal statute setting forth the circumstances under which proof of culpability is required. There is no pattern or rationale for the many different and often elastic words used in designating culpability. This section defines the kinds of culpability and establishes the general rules governing what kind of, and when, culpability is required. Subsection (1) sets forth the four possible culpable mental states recognized in the Code. "Intentionally" imports only purpose, not motive. When a special motive (specific intent) is required, the offense will be defined as conduct "with intent to." "Knowingly" is distinguished from "intentionally," to differentiate between the man who wills and one who is merely willing. It is distinguished from "recklessly" by the phrase "unaccompanied by substantial doubt." "Recklessly" requires conscious and unjustifiable disregard. The last phrase of subsection (1) (c) makes clear that criminal recklessness is not the same as the recklessness which incurs tort liability. Subsection (1) (d) uses the term "unreasonable" to make clear that the criminally negligent person need not be conscious of the likelihood that he is engaging in the prohibited conduct; a negligent failure to be aware is sufficient. The "negligence" contemplated for criminal liability also differs from the tort standard insofar as a "gross deviation" from acceptable behavior is required. "Willfully" is defined to encompass the three higher kinds of culpability, and thus has a meaning clearly different from its variable and uncertain meaning in existing law. Subsection (2) not only permits economy in drafting but also has the effect of requiring an express statement if strict liability is being imposed or if criminal negligence is to suffice. Application of the requirement of culpability to the various factors which the prosecution must prove beyond a reasonable doubt is set forth in subsection (3). Subsection (3) (b) changes the doctrine of "transferred intent," so that one will not be guilty of intentional assault of B if he intends to injure A but misses. (He would be guilty of reckless assault of B and attempted assault of A). As to subsection (3) (c), see comment to a similar provision in § 204, supra. With respect to defenses, culpability is or is not required, depending on the nature of the defense. As to defenses set forth in the provisions of general applicability (Part A and Chapter 10), while the prosecution has the burden of proving the non-existence of a defense once it has satisfactorily been raised, e.g., it must prove that the defendant was at least 16 if immaturity is claimed under § 501, it does not have to prove that defendant was culpable as to the nonexistence of the defense, e.g., that he knew he was at least 16. (Section 609-Excusecontains a provision dealing with defendant's mistaken belief in the justification and excuse defenses). As to defenses included in the definitions of specific offenses, culpability is required unless the reverse is expressly provided. For "affirmative" defenses, see § 303. As a device for avoiding ambiguity as to whether culpability is required as to certain factors, subsection 3 (e) provides for use of the phrase "in fact." Subsection (4) provides that a lower kind of culpability includes all higher kinds. Subsection (5) states the proposition that ignorance of the law is generally no excuse. For those specific circumstances under which mistake of law is a defense, see § 610. Subsection (6) eliminates the issue of culpability in prosecution of infractions, since these are not "crimes" (see § 109 (d), and are not punishable by imprisonment. § 303. Mistake of Fact in Affirmative Defenses. Except as otherwise expressly provided, a mistaken belief that the facts which constitute an affirmative defense exist is not a defense. Comment The general rule as to affirmative defenses, as to which the prosecution has no burden of proof, is that the defendant must prove actual existence of the facts which establish the defense. For example, § 1306 (4) (Escape) provides an affirmative defense that there was irregularity or a lack of jurisdiction in the detention escaped from, if the escape involved no substantial risk of harm or the detaining authority did not act in good faith under color of law. Under this section the affirmative defense could not be established if in fact there was a substantial risk of harm or the detaining authority did act in good faith, even though a defendant could show his reasonable ignorance of these facts or his belief that they did not exist. § 304. Ignorance or Mistake Negating Culpability. A person does not commit an offense if when he engages in conduct he is ignorant or mistaken about a matter of fact or law and the ignorance or mistake negates the kind of culpability required for commission of the offense. Comment This section states the obvious fact that if a mistake negates the culpability which is required, a person does not commit an offense. That is, if a man thinks he is shooting a deer, but it is really a man, he is not guilty of intentional murder. (Of course, if he was reckless, he might be guilty of manslaughter.) The mistake must negate |