Mens rea
Overview
 
Mens rea is Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...

 for "guilty mind". In criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

, it is viewed as one of the necessary elements of a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...

. The standard common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 test of criminal liability
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...

 is usually expressed in the Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...

 phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind is also guilty". Thus, in jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

s with due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

, there must be an actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...

accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence
Concurrence
In Western jurisprudence, concurrence is the apparent need to prove the simultaneous occurrence of both actus reus and mens rea , to constitute a crime; except in crimes of strict liability...

).
Encyclopedia
Mens rea is Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...

 for "guilty mind". In criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

, it is viewed as one of the necessary elements of a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...

. The standard common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 test of criminal liability
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...

 is usually expressed in the Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...

 phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind is also guilty". Thus, in jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

s with due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

, there must be an actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...

accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence
Concurrence
In Western jurisprudence, concurrence is the apparent need to prove the simultaneous occurrence of both actus reus and mens rea , to constitute a crime; except in crimes of strict liability...

). As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault. The exception is strict liability
Strict liability (criminal)
In criminal law, strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offence...

 crimes.

In civil law, it is usually not necessary to prove a subjective
Consciousness
Consciousness is a term that refers to the relationship between the mind and the world with which it interacts. It has been defined as: subjectivity, awareness, the ability to experience or to feel, wakefulness, having a sense of selfhood, and the executive control system of the mind...

 mental element to establish liability for breach of contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...

 or tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

, for example. However, if a tort is intentionally committed or a contract is intentionally breached, such intent may increase the scope of liability
Proximate cause
In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two types of causation in the law, cause-in-fact and proximate cause. Cause-in-fact is determined by the "but-for" test: but for the action, the result...

 as well as the measure of damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...

 payable to the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...

.

Therefore, mens rea refers to the mental element of the offence that accompanies the actus reus. In some jurisdictions, the terms mens rea and actus reus have been replaced by alternative terminology. In Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...

, for example, the elements of the federal offences are now designated as "fault elements" (mens rea) and "physical element" (actus reus). This terminology was adopted to replace the obscurity of the Latin terms with simple and accurate phrasing.

Levels of mens rea

Under the traditional common law, the guilt or innocence of a person relied upon whether he had committed the crime (actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...

), and whether he intended to commit the crime (mens rea). However, many modern penal codes have created levels of mens rea called modes of culpability, which depend on the surrounding elements of the crime: the conduct, the circumstances, and the result, or what the Model Penal Code calls CAR (conduct, attendant circumstance
Attendant circumstance
Attendant circumstance is a legal concept which Black's Law Dictionary defines as the "facts surrounding an event."...

s, result). The definition of a crime is thus constructed using only these elements rather than the colorful language of mens rea:

The traditional common law definitions and the modern definitions approach the crime from different angles.

In the traditional common law approach, the definition includes:
  1. actus reus: unlawful killing of a human being;
  2. mens rea: malice aforethought.


Modern law approaches the analysis somewhat differently. Homicide is a "results" crime in that it forbids any "intentional" or "knowing" conduct that results in the death of another human being. "Intentional" in this sense means the actor possessed a "purpose" or "desire" that his or her objective (i.e. death of another human being) be achieved. "Knowing" means that the actor was aware or practically certain that the death would result. Thus, the actus reus and mens rea of homicide in a modern criminal statute can be considered as follows:
  1. actus reus: any conduct resulting in the death of another individual;
  2. mens rea: intent or knowledge that the conduct would result in the death.


In the modern approach, the attendant circumstances tend to replace the traditional mens rea, indicating the level of culpability as well as other circumstances. For example, the crime of theft of government property would include as an attendant circumstance that the property belong to the government.

Modes of culpability

The levels of mens rea and the distinction between them vary between jurisdictions. Although common law originated from England, the common law of each jurisdiction with regard to culpability varies as precedents and statutes vary.

England

  • Direct intention: the actor has a clear foresight of the consequences of his actions, and desires those consequences to occur. It's his aim or purpose to achieve this consequence (death).
  • Oblique intention: the result is a virtually certain consequence or a 'virtual certainty' of the defendant's actions, and that the defendant appreciates that such was the case.
  • Knowingly: the actor knows, or should know, that the results of his conduct are reasonably certain to occur
  • Recklessness: the actor foresees that particular consequences may occur and proceeds with the given conduct, not caring whether those consequences actually occur or not
  • Criminal negligence: the actor did not actually foresee that the particular consequences would flow from his actions, but a reasonable person
    Reasonable person
    The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...

    , in the same circumstances, would have foreseen those consequences

Scotland

  • Intention: the accused willingly committed a criminal act entirely aware of his actions and their consequences. Necessary for murder and for assault.
  • Recklessness: the accused was aware the criminal act could be potentially dangerous but did not give a second thought to its consequences, for example involuntary culpable homicide.
  • Negligence: the accused unintentionally committed the criminal act by accident for one reason or another. However this tends not to be a valid excuse.

United States

Title 18 of the United States Code does not have a culpability scheme but relies on more traditional definitions of crimes taken from common law. For example, malice aforethought is used as a requirement for committing capital murder.

Model Penal Code

Prior to the 1960s, mens rea in the United States was a very slippery, vague and confused concept. Since then, the formulation of mens rea set forth in the Model Penal Code
Model Penal Code
The Model Penal Code is a statutory text which was developed by the American Law Institute in 1962. The Chief Reporter on the project was Herbert Wechsler. The current form of the MPC was last updated in 1981. The purpose of the MPC was to stimulate and assist legislatures in making an effort to...

 has been highly influential throughout North America
North America
North America is a continent wholly within the Northern Hemisphere and almost wholly within the Western Hemisphere. It is also considered a northern subcontinent of the Americas...

 in clarifying the discussion of the different modes of culpability.
  • Purposefully: the actor has the "conscious object" of engaging in conduct and believes or hopes that the attendant circumstances exist.

  • Knowingly: the actor is practically certain that his conduct will lead to the result.

  • Recklessly: the actor is aware that the attendant circumstances exist, but nevertheless engages in the conduct that a "law-abiding person" would have refrained from.

  • Negligently: the actor is unaware of the attendant circumstances and the consequences of his conduct, but a "reasonable person
    Reasonable person
    The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...

    " would have been aware.

  • Strict liability: the actor engaged in conduct and his mental state is irrelevant.

Canada

The Supreme Court of Canada has found that the Charter of Human Rights and Freedoms guarantees a minimum requirement for the mental state of various crimes. For example, the crime of murder must include a mental requirement of at least subjective foresight of death. For crimes where imprisonment is a sanction, there is a requirement of at least a defence of due diligence.

Ignorance of the law and mens rea

The general rule under common law is that "ignorance of the law or a mistake of law is no defense to criminal prosecution." In some cases, courts have held if knowledge of a law, or the intent to break a law, is a material element of an offense a defendant may use ignorance as a defense to willfulness if his misunderstanding is in good faith:
Crimes like tax evasion are specific intent crimes and require intent to violate the law as an element of the offense. Not all offenses require specific intent, and a misreading, even in good faith, may not excuse the criminal conduct. A good-faith belief that a law is unjust or unconstitutional is no excuse, but "reasonable compliance upon an official statement of law, afterward determined to be invalid or erroneous" does not constitute a criminal act.

Subjective and objective tests

The test for the existence of mens rea may be: subjective, where the court must be satisfied that the accused actually had the requisite mental element present in his or her mind at the relevant time (for purposely, knowingly, recklessly etc) (see concurrence
Concurrence
In Western jurisprudence, concurrence is the apparent need to prove the simultaneous occurrence of both actus reus and mens rea , to constitute a crime; except in crimes of strict liability...

); objective, where the requisite mens rea element is imputed
Imputation (law)
In law, the principle of imputation or attribution underpins the concept that ignorantia juris non excusat—ignorance of the law does not excuse. All laws are published and available for study in all developed states...

 to the accused, on the basis that a reasonable person
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...

 would have had the mental element in the same circumstances (for negligence); or hybrid, where the test is both subjective and objective.

The court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

 will have little difficulty in establishing mens rea if there is actual evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...

for instance, if the accused made an admissible admission
Admission
Admission may refer to:*Admission to an event or establishment*University and college admissions*Admission , a statement that may be used in court against the person making it...

. This would satisfy a subjective test. But a significant proportion of those accused of crimes make no such admissions. Hence, some degree of objectivity must be brought to bear as the basis upon which to impute the necessary component(s). It is always reasonable to assume that people of ordinary intelligence are aware of their physical surroundings and of the ordinary laws of cause and effect (see causation
Causation (law)
Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is...

). Thus, when a person plans what to do and what not to do, he will understand the range of likely outcomes from given behaviour on a sliding scale from "inevitable" to "probable" to "possible" to "improbable". The more an outcome shades towards the "inevitable" end of the scale, the more likely it is that the accused both foresaw and desired it, and, therefore, the safer it is to impute intention. If there is clear subjective evidence that the accused did not have foresight, but a reasonable person would have, the hybrid test may find criminal negligence. In terms of the burden of proof, the requirement is that a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

 must have a high degree of certainty before convicting, defined as "beyond a reasonable doubt" in the United States and "sure" in the United Kingdom. It is this reasoning that justifies the defenses of infancy
Defense of infancy
The defense of infancy is a form of defense known as an excuse so that defendants falling within the definition of an "infant" are excluded from criminal liability for their actions, if at the relevant time, they had not reached an age of criminal responsibility...

, and of lack of mental capacity under the M'Naghten Rules
M'Naghten Rules
The M'Naghten rules were a reaction to the acquittal of Daniel McNaughton. They arise from the attempted assassination of the British Prime Minister, Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later...

, an alternate common law rule (e.g., Durham test), and one of various statutes defining mental illness
Mental disorder defence
In the criminal laws of Australia and Canada, the defence of mental disorder is a legal defence by excuse, by which a defendant may argue they should not be held criminally liable for breaking the law because they were mentally ill at the time of the alleged criminal actions.These are a statutory...

 as an excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...

. Moreover, if there is an irrebuttable presumption of doli incapax - that is, that the accused did not have sufficient understanding of the nature and quality of his actions then the requisite mens rea is absent no matter what degree of probability might otherwise have been present. For these purposes, therefore, where the relevant statutes are silent and it is for the common law to form the basis of potential liability, the reasonable person must be endowed with the same intellectual and physical qualities as the accused, and the test must be whether an accused with these specific attributes would have had the requisite foresight and desire.

In English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

, s8 Criminal Justice Act 1967 provides a statutory framework within which mens rea is assessed. It states:
A court or jury, in determining whether a person has committed an offense,
(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but
(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Under s8(b) therefore, the jury is allowed a wide latitude in applying a hybrid test to impute intention or foresight (for the purposes of recklessness) on the basis of all the evidence.

Relevance of motive

One of the mental components often raised in issue is that of motive
Motive (law)
A motive, in law, especially criminal law, is the cause that moves people to induce a certain action. Motive, in itself, is not an element of any given crime; however, the legal system typically allows motive to be proven in order to make plausible the accused's reasons for committing a crime, at...

. If the accused admits to having a motive consistent with the elements of foresight and desire, this will add to the level of probability that the actual outcome was intended (it makes the prosecution case more credible
Credibility
Credibility refers to the objective and subjective components of the believability of a source or message.Traditionally, modern, credibility has two key components: trustworthiness and expertise, which both have objective and subjective components. Trustworthiness is based more on subjective...

). But if there is clear evidence that the accused had a different motive, this may decrease the probability that he or she desired the actual outcome. In such a situation, the motive may become subjective evidence that the accused did not intend, but was reckless or willfully blind.

Motive cannot be a defense. If, for example, a person breaks into a laboratory used for the testing of pharmaceuticals on animals, the question of guilt is determined by the presence of an actus reus, i.e. entry without consent and damage to property, and a mens rea, i.e. intention to enter and cause the damage. That the person might have had a clearly articulated political motive to protest such testing does not affect liability. If motive has any relevance, this may be addressed in the sentencing
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...

 part of the trial, when the court considers what punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....

, if any, is appropriate.

Recklessness (United States: "willful blindness")

In such cases, there is clear subjective evidence that the accused foresaw but did not desire the particular outcome. When the accused failed to stop the given behavior, he took the risk of causing the given loss or damage. There is always some degree of intention subsumed within recklessness. During the course of the conduct, the accused foresees that he may be putting another at risk of injury: A choice must be made at that point in time. By deciding to proceed, the accused actually intends the other to be exposed to the risk of that injury. The greater the probability of that risk maturing into the foreseen injury, the greater the degree of recklessness and, subsequently, sentence rendered. For example, at common law, an unlawful homicide committed recklessly would ordinarily constitute the crime of voluntary manslaughter
Voluntary Manslaughter
Voluntary manslaughter is the killing of a human being in which the offender had no prior intent to kill and acted during "the heat of passion," under circumstances that would cause a reasonable person to become emotionally or mentally disturbed. In the Uniform Crime Reports prepared by the...

. One committed with "extreme" or "gross" recklessness as to human life would constitute murder, sometimes defined as "depraved heart" or "abandoned and malignant heart" murder.

Criminal negligence

Here, the test is both subjective and objective. There is credible subjective evidence that the particular accused neither foresaw nor desired the particular outcome, thus potentially excluding both intention and recklessness. But a reasonable person
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...

 with the same abilities and skills as the accused would have foreseen and taken precautions to prevent the loss and damage being sustained. Only a small percentage of offences are defined with this mens rea requirement. Most legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

s prefer to base liability on either intention or recklessness and, faced with the need to establish recklessness as the default mens rea for guilt, those practising in most legal systems rely heavily on objective tests to establish the minimum requirement of foresight for recklessness.

See also

  • Animus nocendi
    Animus nocendi
    In jurisprudence, animus nocendi is the subjective state of mind of the author of a crime, with reference to the exact knowledge of illegal content of his behaviour, and of its possible consequences....

  • Command responsibility
    Command responsibility
    Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....

  • Henry de Bracton
    Henry de Bracton
    Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....

  • Morissette v. United States
    Morissette v. United States
    Morissette v. United States, 342 U.S. 246 , is a U.S. Supreme Court case, relevant to the legal topic of criminal intent.-Background :...

  • Voluntas necandi
    Voluntas necandi
    In jurisprudence, voluntas necandi describes the animus nocendi of a person who willfully kills another human being. Establishment of voluntas necandi is necessary to prove murder or voluntary manslaughter as opposed to involuntary manslaughter....


External links

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