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Scienter: Legal Definition & Requirement

Instructor: Jessica Schubert

Jessica is a practicing attorney and has taught law and has a J.D. and LL.M.

Did you ever hear the term 'scienter' while watching a television program involving the law? Learn what constitutes scienter in legal terminology. Review the definition of scienter as well as the requirements for proving scienter.

Legal Definition

Imagine that Bob has a pit bull who likes to roam freely in the neighborhood. The pit bull, named Angus, previously bit a young child. Nevertheless, Bob still allows his dog to wander after the incident. One afternoon, Angus spies, then attacks, an elderly woman, causing significant injuries to the woman. The woman sues Bob for damages. The civil case goes to trial and the judge seeks to find out what Bob knew about Angus' propensity to bite. This issue relates to Bob's scienter, or his awareness of Angus' propensity to bite or attack people.

When used in legal terminology, the word scienter means the awareness or knowledge of wrongdoing, that then holds a person accountable for his actions. You may have also heard the term mens rea. While this term is sometimes used interchangeably with scienter, mens rea, which refers to the state of mind of the perpetrator when they commit a crime, applies to criminal law only.

Proving Scienter

Although there are some types of claims where scienter does not need to be proved, strict liability, for example, for most types of cases, the element of scienter must be proved. Scienter can be proved by the presentation of evidence to show the perpetrator's state of mind. The evidence must typically show that the perpetrator acted knowingly, willfully, intentionally or in reckless disregard of the law. But what do these terms really mean in the scienter context? Let's take a look.

Knowingly

Knowingly taking an action refers to being aware of what you are doing; doing something consciously. For example, in the Angus scenario above, if Bob opens the door to let Angus out to roam freely, he has acted knowingly because he knew he was opening the door and knew that Angus was not on a leash.

Willfully

Willful behavior is an intentional act that is taken 'with the specific intent to do something.' For instance, in the Angus example, if Bob opens the door intending to let Angus outside to roam freely, even though he knows there is a law requiring a leash, this would constitute willful behavior.

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