"Crimes Against Nature" Means
Something Quite Different Now

By William Perry Pendley

(Editor’s note: William Perry Pendley is president and chief legal officer for Mountain States Legal Foundation, a public interest law firm specializing in issues of private property and individual liberty.)

Years ago, when I was just starting out as an attorney, I worked on a criminal case in Wyoming that involved an alleged sexual assault. Since Wyoming had not changed the sexual assault portion of its criminal code after becoming a state in 1890, the statute contained provisions that today sound almost quaint, including, "and other crimes against nature."

Nowadays, most sexual assault laws have no such language. While the phrase is rarely heard in that context, it is not dead yet. In compliant response to the demands of environmental groups, the Clinton administration prosecutes what amounts to "crimes against nature." Increasingly, government lawyers are ascribing to "nature" and "the environment" an attitude once reserved for human beings.

The Forest Service's prosecution of famed Indy driver Bobby Unser is a case in point. It was Unser who last December was caught in a blizzard while snowmobiling in a national forest in southern Colorado. So dangerous was the blizzard that Unser and a friend nearly died, endured one night in a snow cave, and spent two days hiking through waist-deep snow to safety.

When Unser approached the Forest Service about his missing snowmobiles, it cited him for use of a motorized vehicle in a wilderness area, a violation of federal law. Unser knows the wilderness area in question and the prohibition against motorized vehicles there. He also knows that when he began his snowmobile trip, when the sun was shining and the sky was clear and blue, he was far outside the wilderness boundary. However, once the blizzard sprang upon him, when visibility dropped to less than three feet, and the wind chill plummeted, Unser had no idea where he was.

During that time, although it is still unclear, Unser may have strayed inadvertently into the wilderness area on his snowmobile. If he breached the wilderness boundary with a motorized vehicle, he did so inadvertently, or out of necessity, or during an emergency. Thus Unser lacked what lawyers call mens rea, or criminal intent; he did not intend to violate the law.

However, the Clinton administration says that doesn't matter. It takes the position that regardless of Unser's situation or his state of mind, operating a motorized vehicle in a wilderness area is illegal since, in legalese, the Wilderness Act has no mens rea requirement. Remarkably, the federal district court that heard Unser's case agreed!

The U.S. Supreme Court has held, repeatedly, that a mens rea requirement is the rule, rather than the exception, and is a fundamental principle of Anglo-American criminal law. Says the Court: "[Mens rea] is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."

Any attempt by Congress to deviate from this "first principle" must be stated clearly. Although the Wilderness Act contained no such renunciation of mens rea, Clinton's lawyers argued that the Wilderness Act is a "public welfare" statute and therefore mens rea is not required. Incredibly, again the court agreed!

In the past, "public welfare" statutes were limited to activities that affect public health, safety or welfare, that pose a serious risk of danger or death to human beings; for example, dangerous drugs and hand grenades. But in the Unser case, that protection has been extended to nature.

Unfortunately, Unser is not alone. All across the country, federal officials are ascribing to nature, to plants and animals, the same protective attitude once ascribed to human beings, and bringing criminal action against human beings for what amounts to "crimes against nature."

Today, as thoughtful Americans struggle with a nation that seems desensitized to human suffering, we should not limit our attention to what comes out of Hollywood. Increasingly, Washington, D.C. is demonstrating that, in its view, people are less important than nature.