Malum prohibitum (plural mala prohibita, literal translation: "wrong [as or because] prohibited") is a Latin phrase used in law to refer to conduct that constitutes an unlawful act only by virtue of statute, as opposed to conduct that is evil in and of itself, or malum in se.
Conduct that is so clearly violative of society's standards for allowable conduct that it is illegal under English common law is usually regarded as malum in se. An offense that is malum prohibitum may not appear on the face to directly violate moral standards. The distinction between these two cases is discussed in State of Washington v. Thaddius X. Anderson:
Criminal offenses can be broken down into two general categories malum in se and malum prohibitum. The distinction between malum in se and malum prohibitum offenses is best characterized as follows: a malum in se offense is "naturally evil as adjudged by the sense of a civilized community," whereas a malum prohibitum offense is wrong only because a statute makes it so. State v. Horton, 139 N.C. 588, 51 S.E. 945, 946 (1905).
"Public welfare offenses" are a subset of malum prohibitum offenses as they are typically regulatory in nature and often "'result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.'" Bash, 130 Wn.2d at 607 (quoting Morissette v. United States, 342 U.S. 246, 255-56, 72 S. Ct. 240, 96 L. Ed. 288 (1952)); see also State v. Carty, 27 Wn. App. 715, 717, 620 P.2d 137 (1980).
Examples of crimes and torts that might be considered as malum prohibitum—but not malum in se—include:
- building or modifying a house without a license
- copyright infringement
- illegal drug use
- illegal hunting
- operating a business without a license
- driving without a license
- violating prohibition of alcohol
- modern statutory rape
- surrogacy for profit
- weapon possession
- illegal immigration
- resisting arrest
- "Malum prohibitum - LII / Legal Information Institute - Cornell University Law School". Retrieved 19 May 2010.
- "Malum in se - LII / Legal Information - Cornell University Law School". Retrieved 19 May 2010.
- "No. 67826-0. - STATE v. ANDERSON - Supreme Court of the State of Washington, 67826-0, decided August 2000". Retrieved 3 August 2017.
- Gray, Richard (January 1995). "Eliminating the (Absurd) Distinction Between Malum In Se and Malum Prohibitum Crime". Washington University Law Review. 73 (3): 1129–30.
Presumably, in rejecting the importance of the actor's intent in [statutory rape] cases, these [several] jurisdictions label statutory rape as a malum prohibitum activity.
- Kleinfield, Joshua (May 2013). "A Theory of Criminal Victimization" (PDF). Stanford Law Review. 65: 1119–1124.
The conventional story holds that the ordinary logic of rape is that it is sex without consent; children can’t consent; therefore sex with children constitutes rape....Yet this story, however reasonable in principle, does not hold up when one actually looks at the penal codes.
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