Defilement Law Case Study

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This chapter will delve into the various theories that underpin, justify and criticise the existence of defilement laws as those of a strict liability nature. It shall also discuss the principle of ‘best interest of the child’ and evaluate how child laws and policies should be structured based on this principle.
2.1. Defilement as a crime of strict liability
Mens rea is presumed to be an essential element in every criminal offence. Mens rea refers to the state of mind defined in a criminal offence required to convict a particular defendant of a particular crime. However, there are some offences in which mens rea is not a required element of the offence. Such offences which negate requirements of proof of mental state are known as strict
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This is because of a cardinal principle in criminal law found in the maxim actus non facit reum, nisi mens sit rea. This means that for a crime to have occurred one has to prove the two elements of criminal law which are actus reus and mens rea. Yet the doctrine of strict liability dictates that a crime can be committed without the mens rea element. However, the notion that it can be said that a crime has been committed without the mens rea element has gained a lot of traction over the years. This notion seems unbending in cases of statutory rape. Strict liability permits the conviction of a criminal defendant in the absence of mens rea in a case of the offence of…show more content…
A person is blameworthy where he or she consciously and knowingly breaks the law and not as a result of an accident or mistake of fact. A defendant must have acted consciously below the designated level or standard of care that a reasonable man would have, given similar circumstances. Strict liability offences at times may punish defendants who have not chosen to violate prescribed laws. In this case, based on a retributive theory, such defendants do not ‘deserve’ to be punished. Also, sometimes an innocent individual may be sacrificed by being punished for the sake of the majority. Therefore, retribution justifies an application of strict liability laws where individuals are aware of the law and go ahead to violate them knowingly. However, this theory is undermined where defendants commit strict liability statutory rape unknowingly or with good faith. This would be a case of minors have consensual sex with each other with knowledge that their actions constitutes an

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