What is Mala Prohibita?

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 a crime only by virtue of statute, as opposed to conduct evil in and of itself, or malum in se. Conduct that was so clearly violative of society's standards for allowable conduct that it was illegal under English common law is usually regarded as "malum in se". An offense that is malum prohibitum, for example, 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 (Supreme Court of the State of Washington, 67826-0, decided August 2000) [1]:

"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.' "

In debating the appropriateness of certain offenses or sanctions, one occasionally encounters the suggestion that conduct should be given more latitude on the theory that it is "merely" malum prohibitum. In an earlier version of this document, it was suggested that examples of malum prohibitum included parking violations and copyright violations (which, respectively, are at least arguably a form of trespass and a form of theft). Some laws, like tax laws, make ordinary conduct an offense if done without a license, stamp, or other official permission, and thus qualify as malum prohibitum. On the other hand, licensing is sometimes done for safety purposes (to prevent untrained drivers' operation of powerful motorized vehicles where the public is at risk, or to ensure that persons without minimum qualifications are not permitted to practice medicine or act as architects or sell services as a member of another licensed profession), and to prevent certain frauds or egregious violations of trust from being too easy; violation of such licensing rules, by virtue of the peril the conduct creates, arguably prevents such prohibitions from being merely malum prohibitum. For example, the risk to the public if one were not required to have a license and post a bond before issuing life insurance policies is so severe that purporting to sell life insurance while conducting an unlicensed, unbonded business is arguably tantamount to fraud. Because the definition given in Anderson depends on the 'sense of a civilized community', it is certain that the specific categorization of offenses as malum prohibitum and malum in se will be subject to debate whenever there is debate within the community as to what should violate the sensibilities of its members.

Whether "victimless crime" can be other than malum prohibitum may depend on how strongly one views the public need of social order, or how seriously one takes the risk of parties exercising over others such influence that their consent cannot be regarded as genuine (e.g., statutory rape, sale of banned addictive mental-state-altering substances, etc.). The degree to which one believes individuals should be protected from themselves often directs one's conclusions regarding whether conduct barred by current law is "merely" malum prohibitum. Under Anderson it is arguably the case that categorization of offenses varies with the society in which the judgment is undertaken.

See also

• Victimless crime (political philosophy)
• Public order crime