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  • Criminal Culpability's Wild Mens Rea: Use and Misuse of "Willful" in the Laws of New York

    Liability under criminal statutes prefers a culpable mental state. The Latin phrase actus non facit reum nisi mens sit rea, translated as “[t]he act does not make the person guilty unless that person’s mind is guilty,” illustrates the classic principle that some degree of guilty knowledge—or mens rea—is required to impose criminal penalties. Willful, one such mens rea, is perhaps the most conflated, confusing, and confounding of all criminal mental states. Willful is also often spelled as wilful, willfull or even willfull in various statutory texts. As Justice Jackson wrote in Spies v. United States, willful “is a word of many meanings, its construction often being influenced by its context.” In American criminal law generally, willful is the legal lizard of mens rea, a chameleon-like term that defies a single, constant definition in New York or any other jurisdiction, and is thus a “wild” term. When a statutory term has two different meanings, judicial interpretation turns on the intention of lawmakers, which is paramount. Absent legislative guidance, courts consider context, purpose, and spirit of the enactment and even dictionary definitions, giving force to particular words of a statute. In criminal statutes, willful is a moving target that defies a basic, long-established constitutional principle of explicitness.