The Structure and Limits of Criminal Law

Paul H. Robinson

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781472422934
• eBook ISBN: 9781351540247
• Topic: History
• Subtopic: World History
• Index: History

This volume brings together a collection of essays, many of them scholarly classics, which form part of the debates on three questions central to criminal law theory. The first of these questions is: what conduct should be necessary for criminal liability, and what sufficient? The answer to this question has wider implications for the debate about morality enforcement given the concern that the "harm principle" may have collapsed under its own weight. Secondly, essays address the question of what culpability should be necessary for criminal liability, and what sufficient? Here, the battles continue over whether the formulation of doctrines - such as the insanity defense, criminal negligence, strict liability, and others - should ignore or minimize the extent of an offender's blameworthiness in the name of effective crime-control. Or, are methods of accommodating the tension now in sight? Finally, essays consider the question of how criminal law rules should be best organized into a coherent and clarifying doctrinal structure. The structure grown by the common law process competes not only with that of modern comprehensive codifications, such as the America Law Institute's Model Penal Code, but also with alternative structures imagined but not yet tried.

Part I
The Structure of Criminal Law

[1]
Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction?

PAUL H. ROBINSON

Many criminal lawyers, judges, and professors see the distinction between actus reus and mens rea as one of the more basic of criminal law. Along with the offence-defence distinction, it helps us organize the way we conceptualize and analyse liability. It is said to be ‘the corner-stone of discussion on the nature of criminal liability’.¹ And, the concepts of actus reus and mens rea have ‘justified themselves by their usefulness’.² I will argue that this most basic organizing distinction is not coherent. Rather than being useful to criminal-law theory, it is harmful because it creates ambiguity in discourse and hides important doctrinal differences of which criminal law should take account. I suggest that we abandon the distinction in favour of other conceptualizations.

No doubt the actus reus-mens rea distinction is a logical and natural extension of the obvious empirical difference between a person’s conduct, which we can directly observe, and his intention, which we cannot. In the simple case—a defendant shoots someone, with the intention of injuring him—both the defendant’s conduct and intention are prerequisites to liability. The concepts of actus reus and mens rea adequately capture these two facts and note the empirical difference. It is natural to extend the mens rea required for liability beyond an intention to injure, to include knowledge, recklessness, or negligence as to injuring another (as when one target-shoots in the woods without paying adequate attention to the possibility of campers in the overshot zone). It also is natural to extend the actus reus required for liability beyond an affirmative act of shooting another, to include cases of injuring another by failing to perform a legal duty (as in failing to feed one’s child) and to include possession of contraband.

While such an evolution is understandable, even logical, it does not follow that the resulting distinction is one around which current doctrine should be conceptualized. We may be able to explain how we came to rely upon the distinction, but that in itself may not be adequate reason to keep it. If we are to rely upon it, we should be able to identify something that is gained by conceiving of the actus reus doctrines as being part of a single concept and by conceiving of the mens rea doctrines as a single concept. We should be able to articulate a common denominator among each group that makes it more convenient or more enlightening to speak of them as a group. What is the unifying characteristic of actus reus doctrines and of mens rea doctrines?

While there is some disagreement as to the meaning of ‘actus reus’, which I discuss below, actus reus commonly is described as including, first, the requirement that liability be based on conduct that includes a voluntary act. Also part of the actus reus is the conduct required to constitute the offence, as well as any circumstances or results that are required to make the conduct criminal. Where a result is one of these offence elements, proof of the actus reus requires proof that the defendant’s conduct and the result stand in a certain relation, as defined by the doctrine of causation. In the absence of an act, the actus reus of an offence may be found in the omission to perform a legal duty of which the defendant is physically capable, or in a defendant’s knowing possession of contraband for a period of time sufficient to terminate the possession. To summarize, actus reus is said to include the conduct, circumstance, and result elements of an offence, as well as the supporting doctrines of causation, voluntary act, omission, and possession.

The ‘mens rea’ of an offence typically is said to be the defendant’s required mental state at the time of the conduct constituting the offence. Under the Model Penal Code, this generally requires proof that the defendant had intention (purpose) or knowledge, or was reckless or negligent, as to each conduct, circumstance, and result element, as the offence definition may require.³ The required mens rea also may include proof of additional culpable mental states beyond that required as to each objective element. The offence may require, for example, that the defendant have a purpose to do something more than the conduct required for the offence or that he engage in the offence conduct for a particular reason.⁴

What is the unifying characteristic of the actus reus requirements? Are they all ‘objective’ in nature, as the related concept of ‘objective elements’ might suggest? A circumstance element of an offence may be entirely abstract, such as ‘being married’ in bigamy or ‘without licence’ in trespass. Indeed, an ‘objective’ element may include a purely subjective state of mind, such as the requirement of causing ‘fear’ in robbery or the requirement in rape that the victim does not ‘consent’.⁵ The ‘subjective’ nature of mens rea requirements and their common character as ‘mental states’ are also chequered. Negligence is neither subjective nor a state of mind, of course, but rather a failure to meet an objective standard.

Perhaps the common denominator among actus reus requirements and among mens rea requirements is not to be found in the descriptive characteristics of the requirements (e.g. ‘objective’ or ‘subjective’), but in their function. It is common to conceive of the actus reus-mens rea distinction in a general way as the distinction between the functions of defining the prohibited conduct and defining the conditions under which a defendant is to be held blameworthy and therefore liable for engaging in such prohibited conduct. This is the approach taken by the Model Penal Code drafters. The requirements of intention (purpose), knowledge, recklessness, and negligence may have different characteristics—subjective, objective, state of mind, legal abstraction, etc.—but they serve a single function, in the drafters’ view: to assess whether the defendant is sufficiently culpable for his prohibited conduct to be held criminally liable for it.⁶ Indeed, the Code refers to these requirements—intentionally (purposely), knowingly, recklessly, and negligently—as ‘culpability’ levels, emphasizing this common function. The objective elements of conduct, circumstance, and result, in contrast, describe the prohibited (or required) conduct, the definition of which may be modified or refined by the supporting actus reus doctrines. I will argue, however, that this apparent functional similarity among actus reus requirements and among mens rea requirements also is an illusion. In fact, both actus reus and mens rea requirements serve several different functions.

As the following sections in this paper try to show, what we refer to as actus reus requirements or as mens rea requirements are in fact a collection of entirely distinct doctrines. Four doctrines typically described as the actus reus requirements include what I shall refer to as the act requirement, the rules governing omission liability, the voluntariness requirement, and the objective elements of offence definitions. Four doctrines typically described as the mens rea requirement include what I shall refer to as present-conduct intention, present-circumstance culpability, future-result culpability, and future-conduct intention. While these doctrines are grouped together as actus reus or as mens rea, the doctrines within each group have no common characteristic and no common function.

Grouping the doctrines as actus reus or as mens rea is problematic because it obscures the fact that there are different doctrines at work and it misleadingly suggests that the doctrines share a common characteristic or function. This, in turn, inevitably creates confusion and invites analytic error. Criminal law would be better off if we abandoned the distinction and referred instead only to the individual underlying doctrines. If a grouping of related doctrines is useful, the doctrines might better be grouped around the three primary functions of criminal-law doctrine developed in the last section of this essay.

1. Four Doctrines of Actus Reus

Let me begin by demonstrating that what is referred to as the actus reus requirement includes at least four distinct doctrines, each of which has different requirements and a different set of rationales justifying its existence.

1.1. The Act Requirement

The act requirement and the voluntariness requirement, frequently treated as a single actus reus requirement, are related but distinct doctrines. Several writers assure that the two are treated as one by defining an ‘act’ as a ‘willed movement’.⁷ Modern codes typically keep the two separate; they define an act to be ‘a bodily movement whether voluntary or involuntary’.⁸ The act requirement also is distinct from the objective elements of an offence. The act requirement may be satisfied by proof of the conduct element of an offence, but it also may be satisfied by proof of a different act. Complicity, causing crime by an innocent, vicarious liability, and inchoate liability are the most obvious examples. In each instance, a defendant may be held criminally liable although he does not satisfy the conduct element of any substantive offence. The act requirement demands none the less that the defendant’s liability be based upon some act. The point is that the act requirement sets a minimum condition for liability that is independent of the substantive-offence definitions. The Model Penal Code, for example, in addition to its offence definitions, requires that liability be ‘based on conduct which includes [an] act’.⁹ Where a code does not explicitly require an act, courts none the less tend to enforce such a requirement.¹⁰ The act requirement does not have universal application. Liability may be imposed in the absence of an act, if the defendant fails to perform a legal duty or has possession of contraband. More on this in a moment.

Why have an independent requirement of an act? Several rationales are apparent. By requiring an act, the law excludes from liability those persons who only fantasize about committing an offence and those persons who may indeed form an intention to commit an offence but whose intention is not sufficiently firm that it will mature into action. One might argue that such people are dangerous, at least more dangerous than persons without such fantasies or intentions, and perhaps the criminal law ought to take jurisdiction.¹¹ But many people may fantasize or form irresolute intentions yet never act; thus use of criminal sanctions in these cases would be inefficient. More important, so long as the criminal law continues to claim a moral foundation, liability is inappropriate, because fantasizing and irresolute intentions generally are not viewed as adequate to deserve condemnation and punishment.¹² Condemnation sufficient for criminal conviction typically follows only after an intention matures into action.

Beyond its value in barring punishment for unexternalized thoughts, the act requirement provides some minimal objective confirmation that the defendant’s intention does exist. Upon observing an action consistent with the intention, we feel more sure of the defendant’s intention and her willingness to act upon it. But the act requirement by itself performs this role poorly. Admittedy, some conduct may unambiguously manifest a mind bent on crime. There seems little ambiguity in the act of strangling another by the neck. But it also is the case that conduct, especially that short of a substantive offence, frequently does little by itself to indicate a culpable state of mind. The farmer lighting his pipe near his neighbour’s haystack may have no intention of committing arson.

The act requirement is useful in providing a time and place of occurrence of an offence. While one’s intention may range over a long period of time and many places, the conduct constituting the offence can be identified with a particular time and place. This assists enforcement of the concurrence requirement, i.e. that the required mens rea exist at the time of the conduct constituting the offence. An identifiable time and place also make it easier to apply various procedural rules, such as those governing jurisdiction, venue, and periods of time of limitation. Even here, however, the act requirement cannot...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Series Preface
• Introduction by Paul H. Robinson and Joshua Samuel Barton
• Part I The Structure of Criminal Law
• Part II The Limits of Criminal Law: Offence Conduct
• Part III The Limits of Criminal Law: Offender Culpability
• Name Index