Talk:Malum prohibitum

Untitled
I removed the reference to same-sex marriage as malum prohibitum. In most jurisdictions, a marriage between two people of the same sex is either (1) prohibited or (2) does not constitute a crime or a tort. The fact that many jurisdictions do not affirmatively recognize a same-sex marriage for civil purposes does not render the conduct of performing or entering into such a marriage malum prohibitum. Thus, this is not adequately illustrative as an example. —Preceding unsigned comment added by 24.5.174.69 (talk) 22:05, 14 March 2010 (UTC)

Cultural definition of evil
> Ultimately, malum prohibita and malum in se are cultural definitions, due to the fact that evil is culturally defined

This is a moderately controversial statement with some political implications. I can't think of an improvement right now, alas. — Preceding unsigned comment added by Lambyuk (talk • contribs) 21:07, 25 February 2013 (UTC)
 * I agree and reverted. It seems to be talking about the common confounding of cultural relativism with moral relativism.  Those are topics unto themselves.Legitimus (talk) 21:39, 25 February 2013 (UTC)

Refimprove Improvement Needed
If you are going to request additional references you (obviously) must cite what you are requesting a reference for. Webjedi (talk) 05:13, 2 February 2009 (UTC)

Malum prohibitum?
* breaking and entering * indecent exposure * littering * trespass * usury * voyeurism

Not so sure about these -- they seem a bit murkier in that there is someone else "injured" by them. &mdash;Casey J. Morris 20:36, 2 February 2006 (UTC)

Merge?
When Malum in se and Malum prohibitum both spend a lot of space talking about the other, perhaps it is time to merge them.


 * I vote nay. Webjedi (talk) 05:04, 2 February 2009 (UTC)

removed sentence
"As malum in se is related closely to the defense of natural rights (underlying rights discovered by the evolution of non-statutory law), malum prohibitum restrictions, as, for example, the American Fugitive Slave Law of 1850, are sometimes seen as imperiling rights."

After a brief period of editing what I thought was the problem with this sentence, I decided to just remove it because I don't understand it. Perhaps it could be better sourced or verified, though it seems a little too evengelical for an encyclopedia.Mneumisi 17:49, 28 November 2006 (UTC)


 * I do not remove things simply because I don't understand them. However, I concur that the sentence needs verification as the difference between natural rights and civil rights is a subject of great controversy. Webjedi (talk) 05:03, 2 February 2009 (UTC)

Alternative translation
"Malum prohibitum" can also mean "forbidden apple". "Apple" and "evil" are homonyms in Latin, for most tenses. --76.217.81.152 19:18, 3 December 2007 (UTC)

Age of Consent as Malum Prohibutum
In some (but not all) instances, age of consent laws wander over into Malum Prohibutum territory. Examples include sexual congress with an individual who is old enough (say 17) for the age of consent in some states, but not in others. This is particularly the case where the age of consent statute is recognizing consent, but makes the sexual act illegal anyway. (Instead of a sexual act with a person so young that they are completely incapable of consent, which would be a Malum in se situation.) — Preceding unsigned comment added by 24.154.99.229 (talk) 05:37, 24 March 2012 (UTC)
 * I don't think so. Just because there is variability in the threshold that constitutes a crime, it does not make the entire concept of age of consent a malum prohibitum.  They are based on sound malum in se principle (being so young as to not be capable of real, informed consent).  The concept of consent in legal context is also different than interpersonally.Legitimus (talk) 21:54, 24 March 2012 (UTC)

Legitimus is clearly incorrect. The very fact that the age of consent is statutorily defined makes statutory rape malum prohibutum. Moreover, the crime in its modern form does not exist at common law, placing it outside the definition of malum in se provided in this very article. There are plenty of serious crimes that are malum prohibutum—dumping toxic waste in a creek, for instance, or driving after having drunk too much alcohol. The classification is not a commentary on victimhood. — Preceding unsigned comment added by 108.17.5.208 (talk) 09:02, 21 December 2017 (UTC)
 * Alright, can you provide a book reference the explains this? Preferably one that specifically mentions statutory rape/age of consent as malum prohibutum? Sourcing is more important than opinion.12:04, 21 December 2017 (UTC)

The closest common law crime is carnal knowledge of a female child younger than eleven years old. Westminister I, 3 Edw. i, c. 13 (1275). See also 3 Coke, Institutes, 6o (4th ed. 1669). Nider v. Commonwealth, 140 Ky. 684, 131 S.W. 1024 (1910); Commonwealth v. Roosnell, 143 Mass. 32, 8 N.E. 747 (1886); Commonwealth v. Bennet, 4 Va. (2 Va. Cas.) 235 (1820). Today, carnal knowledge of a child so young would obviously be punished much more severely—as if another crime—than sex between sexually mature persons seventeen or eighteen years old. It would be odd to lump these two categories together, especially when, as the first comment points out, states—unlike the common law—offer different threshold ages. — Preceding unsigned comment added by 98.118.163.103 (talk) 18:22, 21 December 2017 (UTC)
 * While those are references to cases, I would really need to see some sort of text that actually discusses this more directly, ideally using the exact words malum prohibitum and stating age of consent etc is an example of it. One of the rules on sources for wikipedia is called WP:SYNTHESIS, which means the sources you use have to spell it out pretty explicitly.  It can't "imply" it or require combining inferences from several sources together to create an entirely new conclusion.  This rule is in place because most readers are laypersons, not for example lawyers.
 * For what it's worth, sources I did find either agree with me, claim it is a hybrid of malum prohibitum and malum in se, or use it as a way to argue that the distinction is "absurd" in the first place. (see this link)
 * It looks like another user removed the whole section. I'm not sure how I feel about that yet, but their justification is none of the entries had sources or references, which is a valid argument.
 * Please do no simply revert changes because you disagree. This is considered edit-warring and is never constructive.Legitimus (talk) 19:02, 21 December 2017 (UTC)

The definition in this article of malum prohibitum is correct. Let's take it as our starting point.

The common-law crime is carnal knowledge of a female child under eleven years. That is a malum in se offense regardless of consent. That is not what people think of when hearing the term "statutory rape." The modern statutory crime concerns "age of consent," a concept not present at common law.

I respectfully disagree with the research that you require—although I nevertheless believe that I have provided it. I think that the issue for our present purpose is burden. The article correctly defines malum prohibitum and malum in se, stating that these are exhaustive and exclusive categories, and stating that the latter but not the former includes crimes at common law. In a titular sense, "statutory" by definition means that the crime is not present at common law. So, the person seeking to exclude from a list of malum prohibitum offenses a crime that has "statutory" in its very name has the burden to explain why that crime represents an exception to the general definition already set forth. I don't think that that burden can be met in light of the research I have now included. We now have one secondary source—published in the very prestigious Stanford Law Review—five primary sources, three supporting quotations, and seven citations. I think that that should be sufficient. And, I would wager much that any source you have identified to support the proposition that statutory rape is a malum in se offense and that itself provides a supporting citation is actually referring to the common law crime of carnal knowledge of a female child younger than eleven years. It is essentially inarguable that if conduct was not criminal at common law—generally meaning the law prevailing in the King's courts of historical Great Britain—then it is not a malum in se offense. It is further essentially inarguable that modern statutory rape laws criminalize conduct that was perfectly legal at the King's courts of historical Great Britain (except that the conduct constituted fornication, that is, sex between unmarried persons; but, fornication is obviously nowhere within our penal law today; ironically, most modern statutory rape law includes a marriage exception not present for the common-law crime).

Again, the classification of the crime is separate from how grave the crime should be considered. Theft of a tic-tac is malum in se because it is theft; Volkswagen evading emissions controls throughout its entire American fleet is malum prohibitum. A reasonable person could argue that the latter is a graver crime than the former; however, no reasonable person could argue that the latter is a malum in se offense inasmuch as there were no emissions in historical Great Britain—so evading controls on such could not have then been illegal.

I am providing research now. Thank you for your research. The source you cite discusses cases considering the distinction between malum in se and malum prohibitum in the context of statutory rape doctrine and the affirmative defense of mistake-of-fact. I think that this confuses things more than clarifies them. The distinction for our purpose is jurisprudential, not doctrinal; put differently, the distinction describes philosophically interesting things about the law, not what the law is. The cases in the article you cite struggled with what the law is—particularly whether mistake-of-fact is an affirmative defense to a particular penal violation—which does not necessarily depend on whether the violation is described jurisprudentially as malum in se or malum prohibitum. For example, more important for those cases are the textual meaning of the statute, what interpretation of the statute is most easily enforced, or what the legislature intended in enacting it. — Preceding unsigned comment added by Wikii6B (talk • contribs) 21:04, 21 December 2017 (UTC)

One final point. The article describes the list as crimes that "might" be considered malum prohibitam. I think that even the source you cited, which discusses cases describing modern statutory rape as malum prohibitam, clearly establishes that, at the very least, modern statutory rape "might" be considered a malum prohibitam offense.


 * wrt I am providing research now. Because you do not have verifiable reliable sources for your original research / fringe theories I am reverting your disruptive edit. Please comply with Wikipedia policies or else you may be blocked from editing. RajuChutiya (talk) 06:36, 22 December 2017 (UTC)

It is not a fringe theory, my research is not "original," your comments are disruptive, and your edit reversions are nonsense. I provided another citation that directly states the (obvious) proposition: modern statutory rape is malum prohibutum. Please refrain from vandalizing this article any further in service of a social agenda. — Preceding unsigned comment added by Wikii6B (talk • contribs) 07:29, 22 December 2017 (UTC)