"Mens rea"...what is it?
- Karen McGinnis
- Oct 11, 2022
- 4 min read
“Mens Rea”…Say what?
You may have heard the term “mens rea” on news shows lately. This is a phrase often spouted by consulting legal experts. Knowing what it means and how it applies to various issues in the news, is exactly why they are experts, and we ARE NOT!
Explanation, please!
“Mens rea” refers to criminal intent on the part of someone accused of a crime. In our system of law, we are not all in possession of criminal intent, unless it is proved to exist. A judge and/or a jury must be convinced that criminal intent existed in the mind of the accused before/or at the time of a crime.
“Mens rea” is required to convict an accused defendant of a particular crime. An example of the difference this intent makes is shown in the following, oft repeated quote from Justice Holms;
“Even a dog knows the difference between being stumbled over and being kicked.”
Stumbling is just clumsiness and being kicked is intentional!
It is interesting to note that “mens rea” or a guilty state of mind does not necessarily go hand in hand with a conscious awareness that an act is illegal. At that point the phrase “ignorance is no excuse before the law” comes into play. Just because an accused does not know an act is illegal (ignorance) does not make the commission of a crime forgivable or forgettable. A crime still occurred. An act, ignorant or not, had a result. A law was broken.
A thought floats to the surface at this moment. One might begin to question the mental health or even the intelligence or maturity of the accused. Is a schizophrenic person who lapses into irrational fear, self-defense, and then commits a crime, guilty the same as a young child who lacks maturity, conscious, and intention?
An attempt to answer this question of how adjustable guilt or responsibility is, has been addressed by the MPC, the Modern Penal Code. The MPC defines culpability or responsibility into four categories.
The least culpable:
1> Negligence: the accused is not aware of the risk of an action. This is similar to the idea that “ignorance is no excuse before the law.” It assumes that the accused should have been able to recognize the risk, regardless of the law applied to it.
2> Recklessness: The accused knowingly disregarded breaking the law and failed to consider consequences of actions. The question of “what if” was pushed aside and disregarded.
3> Knowing: The accused knew and was pretty sure that a law was being broken and that there would be results of an action. The results were, in fact, intended. The accused had a goal in mind and knowingly broke the law.
And the most culpable:
4> Purposeful: The accused intended for the action to result in a certain outcome. There was reason and intent involved. Planning occurred and the actions had a purposeful goal.
Before the law, punishment is more severe for a perpetrator who purposefully commits an act and expects a result, than for an accused who is unaware that their actions could have a result and that the action is illegal.
Some discussions of the MPC code and “mens rea” result in the description of an additional “state of mind” consideration. This is where the mental state of the accused is really involved and gets interesting. The accused believes that the result of their actions is somehow justified, and right in their eyes. They feel no guilt whatsoever when committing actions that create an unlawful result.
The crime still exists. The accused just thinks it is right and not a crime at all! There is no “mens rea” or criminal intent in the mind of the accused. They exist in a world that differs from almost everyone else on the planet!
Our examination into “mens rea” has another consideration. The difference between “common law” and “criminal law” begins to be reflected.
Common law says that "an act is not culpable (blame worthy) unless the mind is guilty.” Unintentional crimes show lack of intent and lack of mental responsibility or planning. Intentional crimes show intent, guilt and planning.
Criminal law in the United States is diverse and there are also differences between state law and federal law. Generally, the rules of common law are applied in the states. Federal law applies to crimes against constitutional powers. The Supreme Court has held that “mens rea” is required for Federal Criminal law.
This whole discussion rests on one specific question: What is the state of mind? This is why “mens rea” is so critical.
In the coming months and years there will be many highly publicized trials and inquiries. Understanding the nuances of “mens rea” is important. This discussion has been carried out on a layman’s level rather than on an “expert” level. Gaining more understanding of the nuances and implications of “mens rea” in the proceedings coming up requires additional reading, thought and experience.
Consult experts you may know. Read and research on-line and at your local library. Discuss the subject in depth with other clear-thinking adults. Come to an understanding of the term, intentions, planning and associated punishments. Then, think clearly about the indictments, trials and discoveries as they are presented.
The laws of a society are part of the glue that hold it together. Understand the law. Be a part of its implementation or, when needed, its change. It is your country!
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Areas for additional research, exploration and discussion:
Your local library: legal terms, mens rea, criminal and common law
Your favorite search engine: mens rea and its applications
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