When someone breaks the rules, or the law, they should understand the rule or law they are breaking, right? Well in some cases people have been given criminal convictions for breaking laws that they didn’t even know they were breaking.




  • Mens rae: The legal theory that states that a suspected criminal is only guilty if they knew they were committing a crime. 
  • Malum in se: The belief that something is wrong or evil not because of the law, but because of the laws of nature. 
  • Malum prohibitum: The belief that something is wrong simply because the government says it is and creates a law.

Here’s a transcript of our conversation:

Brittany: Hi Connor.

Connor: Hey, Brittany.

Brittany: So I know you’re more of like a free range kind of unschooling parent, but I’m assuming you have some rules in your house, right?

Connor: Oh, yeah. I mean, dads are great at making rules but realistically, like, yeah, even though we kind of have a laid back approach to our kids education and our parenting style, there’s, you know, they, there’s still chores to do to help the family and there’s still expectations. So, definitely.

Brittany: Okay, so that, I mean, if that makes sense. I think most families have some rules, but you wouldn’t punish your kids for a rule they didn’t even know they were breaking, right? You wouldn’t one day say, oh my goodness, you left this toy on the ground. You know, you’re grounded for seven months. You wouldn’t do that, I hope.

Connor: No, I mean, that would be completely, I think, unfair. It would be unreasonable to have an expectation for someone to behave in a certain way if I hadn’t told them, or they didn’t already somehow know that they should behave that way.

Brittany: Accidentally, or absolutely. But that brings me to a point I wanna make today, and that’s about intent. And intent is a really important word in our legal system. So to explain that word a little bit better, it means the reason why you did or didn’t do something, right? So, if I bump into someone on the street and didn’t mean to hurt them, but I did, like maybe I’m looking at my cell phone, which happens all the time. but I didn’t intend to hurt them. I really didn’t do anything wrong. I still messed up, but I wasn’t purposefully trying to do it. Now, on the other hand, if I’m walking down the street and I see someone I don’t like, and I bump into them just because I’m being, you know, kind of a jerk, well, I would have intent, right? I would intently, purposefully be trying to hurt them. So our legal system is supposed to work the same way. If you break a law that you have intended to break, or you know that you are breaking, then you might be guilty, right? Even in in a murder case, cuz there’s different kinds of murder you can be charged for. Intent matters, right? Did you intend to murder this person? I think it’s manslaughter is what it’s called. If you didn’t mean to kill someone, but you did. So there’s this concept called men’s rea, which is guilt or Latin for guilty mind. So basically you have to have the intent, or you have to, in your mind, be guilty of wanting to commit that crime, and you have to have that guilty mind to actually be convicted of a crime, or at least that’s how it should be. And that is how our system was originally set up. So there’s an example I wanna give, and then I kinda wanna talk about it with you, Connor, and see what you think. All right. So in 1997, this three time indie 500 winner that’s like racing, was convicted of a federal crime, and he had to pay $5,000 and serve a six-month prison sentence for a crime he didn’t even know he was committing. And this just irks me to my core. So, so here’s the story. So he and his friend are writing a snowmobile, you know, they’re having a good time. It’s winter, they don’t think anything of it and they get caught in this horrific blizzard in the middle of the woods that, you know, don’t really know where they are. so they abandoned the snow mobile and they found shelter somewhere. And, they were trapped for two days and nearly died from hypothermia. Normally this would be a story that like, made it to the news. You know, you’d think like, oh my goodness, these two heroes, they, were able to find shelter and find a way to survive. that is not what happened. So again, you’d think this is something you should sympathize with and maybe not punish, but as I like to say, state is gonna state, so the government’s gonna do their thing. And as some people like to say, so the federal government basically tried to punish him for the silliest thing ever. So there is a statute that says you can’t leave something that isn’t.

Connor: I was gonna say, Britney, a statute just to be clear for the kids.

Brittany: Oh, good point.

Connor: it’s just a law, right? Like a state law.

Brittany: It’s a law state law. Yep. But this in, the case was federal. So, and they were in federal land. They were in the federal woods. So the guy basically abandoned his snowmobile in federal wilderness area, which is a crime. You can’t leave something that isn’t natural to the environment, right? So he didn’t know he was doing this, he didn’t know that there was a crime. So as I talked about with intent, he did not intend to violate a federal law because he didn’t even know the law existed, right? So he was just seeking shelter to save his own life, and instead the justice system found him guilty of a federal offense. And again, he served six months in prison and had to pay $5,000.

Connor: I mean, that’s just crazy, right? Because if you have no clue, there’s, I hesitate to kind of bring up more Latin terms cuz this can kind of make it confusing. Yes. Cause we’ve got mens rea but there’s some really important, terms. One is called malum in se, and what that really just means is it’s something that’s bad in and of itself. it’s obvious to people that it’s bad, like stealing from people or, hurting them or killing them. Like, those are things that are just obviously bad. they’re inherently or naturally bad. So that’s called Malum in se, and then on the other hand, there are types of crimes called Malum prohibitum him, which means things that are bad because they’re prohibited. Just like the example you just shared, it wasn’t inherently bad to leave a snowmobile on a piece of land. Yeah. Like, you know, people throughout history have left, you know, their wagons and their horses and their whatever on land. So it’s not inherently bad to leave something on a piece of property. So it’s not a Malum in se I say it’s instead a Malum prohibitum. In other words, that thing that event you just related Britney was only bad because someone had prohibited. Well, if a bunch of people in Congress got together decades ago and came up with this law that’s been sitting on the books that no one’s paid attention to, no one knows about it, but it’s there. And randomly decades later here, it applies to our snowmobile friend seeking shelter. And there’s some prosecutor, which is like a lawyer for the government who’s like, oh, oh, well I’m aware of this law and you violate it, so now we’re gonna throw you in prison for months. Like, that’s just crazy. if things are only bad because they’re prohibited. But then if people don’t know they’re prohibited, how are they supposed to know that they’re not supposed to do that thing? Like, it’s one thing to say, Hey, it’s, like, for example, another Malum prohibitum is you have to stop at stop signs. But, that one is far more clear because we drive all the time and we see our parents growing up stopping at stop signs, and then when we go take the driver’s exam, you know, to get our our license, it’s very clear like, Hey, you gotta stop at stop signs. And so that one’s a little bit easier because it’s a mo prohibitum. In other words, you know, if it’s three in the morning and literally no one is around and you don’t stop at a stop sign, it’s not like you’re an evil person. Yeah. Right? You’ve not committed this inherently, immoral action. You’re not a bad person. You’ve just done something that you were told not to. But why should you stop at a stop sign in the middle of nowhere at three in the morning when there’s not a soul around that you shouldn’t have to, or, even worse, like at an intersection where it’s a red light and you’re just waiting and waiting and waiting for that green light, but no one’s around. Like, it’s okay to move forward. You’re not gonna be a bad person if you do. but those are things that we all know about. They’re, quote-unquote bad because they’re prohibited. Just cuz the government said, Hey, you can’t do this. Right? But we know about it. It’s very clear that, hey, you gotta stop at stop signs because we’ve all been kind of educated and exposed to that Malum prohibitum. We all know that, oh, well, you know, they’ve said we have to stop at stop signs. And so if you don’t, you’ll get busted. When was the last time anyone ever communicated to the public that you can’t abandon a snowmobile on federal land during an emergency when you’re trying to seek shelter? Like, when was the last time your parents sat you down to tell you that lesson? right?

Brittany: Not in, your Bill of Rights, you know, civics class that you’re taking at school.

Connor: Right? Yeah. A high school teacher didn’t talk about it. You didn’t see it on the media. And so if things are, malum prohibitum that if they’re bad, cuz they’re prohibited, but then no one knows about those things. You can’t reasonably expect to hold people accountable for those things that they had no clue about. And yet the government does. I mean, there’s so many other stories like this Britney, where, you know, someone is, out fishing, off the East coast and they catch, you know, a few fish and oh, low and behold one of the fish they caught as this protected type of fish, or maybe it’s a lobster or whatever, and the government said, you’re not allowed to keep those. Well, if you’re just like a, you know, recreational person having some fun, like how are you supposed to know? Yeah. But then if, you know, you post on social media and hey, look at my catch. And then someone finds that and you know, you get a visit from the, you know, coast Guard or whoever oversees that stuff, and, they slap you with a, you know, $5,000 fine for, you know, admitting to this crime that you had no clue exist. So these stories happen time and time again. I’ll share one other, brief one that comes to mind here. When it comes to, you know, being an accidental criminal, I have, several photos on, the wall of my office, of people I consider heroes. And one of them was this gentleman named Arthur, this old gentleman who for decades, had, fed the homeless with his wife and, his wife, passed away. He, kept the work going and he’s feeding the homeless. And low and behold, the city council is passing all of these laws saying, oh, well you need a, you know, porta-potties and you need, you know, all this kind of stuff, otherwise you’re breaking the law. And he’s just trying to do this very basic Christian act, you know, caring for people and, providing homeless people meals. And the government over here is, you know, passing all these laws. And so the police show up and he gets arrested and, it makes just international news because like, here’s the government that supposedly is there to like, you know, help people and whatnot. And then here’s the man who’s actually helping people right? Yeah. And the government’s coming after him and shutting them down. And so, I mean, this gets into like civil disobedience and what proper laws are and so forth. But, the question of the day on this episode, can you be an accidental criminal? Oh yeah. It happens all the time and it’s absolutely absurd.

Brittany: Well, and there’s one point, and this is honestly for a whole other episode that we can talk about, but one reason people don’t know they’re breaking laws is because there’s something, and we gotten into way too many legal terms today, but I’m wanna give you one more called Chevron deference. There’s a problem where the government, the judges have actually let agencies make laws. Now, you know, anybody who knows about the three branches of government know there’s legislative, judicial and executive. Only one of those groups is allowed to make laws, and that’s legislature. But agencies like, the Fish and Wildlife Service are really bad at that. You kind of mentioned them, actually a lot of the environmental, so EPA is really bad at this. They start making their own laws because Chevron deference basically says, if Congress has not explicitly addressed this issue, then the judges can defer in your favor so they can go in your favor. So these laws aren’t laws that are being passed by Congress. People don’t know they’re breaking them because there’s no, unless you’re constantly going on the Fish and Wildlife Service website and looking up statutes, which I don’t think any of us are doing, you don’t know that. So our government is so inconsistent that you often break laws you didn’t even know existed.

Connor: I think that’s what’s, the most absurd about it. And, just to correct you, not that you intended to say it, but the rules that these government agencies are passing are not statutes, they’re not laws, right. That they are. Instead they’re, they’re just, the technical term is administrative laws. but these agencies, they’re just supposed to be implementing what the legislature has said. So the Congress, for example, at the federal level, they’ll pass a law and then, the EPA or whoever they’re supposed to then just pass rules that, are consistent with those laws to then kind of just say, okay, here’s how we’re gonna implement this and here’s the application you need, or here’s the process, and they just kind of spell it out in more detail. But instead, what these agencies have done is, to your point, Brittany, time and time again, they’ve kind of expanded, beyond what Congress has ever said. They’ve created all kinds of new things that they have the force of law. in other words, they’re the government, right? They’ll find you if you disobey their rules, but they were never actually passed as laws they were never voted on. Yep. People don’t know about them. As you say, no one’s scanning the website and the hundreds and, you know, thousands of pages of these rules that exist. No one knows. And yet it’s creating criminals out of society who are not, going back to our first term, right? They don’t have that intent. They’re not intending to cause other people harm. And that’s where the distinction between a malum in se, and a malum prohibitum is important because a molum in se is the traditional things, right? Don’t hurt people. Don’t steal from people, you know, don’t kill from people. We know that those things are wrong. It’s basic morality. And so if we have the intent to harm someone, then you know, chances are we’re breaking a malum in se, because these are laws that are, they’re evident to just protect people’s basic rights and freedom and leave people alone. But if we’re breaking a malum prohibitum. If we’re running that stop sign, we’re catching the wrong fish, we’re leaving our snowmobile on federal land, chances are we don’t have the intent to cause anyone any wrongdoing. We’re not meaning to cause people harm. So these distinctions are really important to you guys. Why? Because the government has grown so far beyond where it should have. And in large part, it’s because people, including politicians, don’t really understand these distinctions. And they just pass all these laws and they grow the government and they don’t realize they’re making criminals out of people. so we will include a couple show notes, items in the show notes, today to explain these terms a little bit more and, point in the direction of learning more about these ideas, cuz these are at the foundation of, good government. will also include a link on the page,  to the book I did called Lessons from a Lemonade Stand, which explains a lot of these ideas. more for like teenagers, kind of a teenager, young adult audience, and certainly the parents as well. That’s critical that we understand these things. if we want to understand, how to restrain the government, how to protect our rights. Great topic is always Brittany. And until next time, we’ll talk to you later.

Brittany: Talk to you later.