Mens Rea

11 Key excerpts on "Mens Rea"

• 

  eBook - PDF

  Crime, Reason and History

  A Critical Introduction to Criminal Law

  • Alan Norrie(Author)
  • 2014(Publication Date)
  • Cambridge University Press

    (Publisher)

  Part II Mens Rea 3 Motive and intention It is lamentable that, after more than a thousand years of continuous legal development, English law should still lack clear and consistent definitions of words expressing its basic concepts. (Williams, 1983, 73) A consideration of motives requires and indicates a much more advanced level of ethical criticism than is involved in appraisals based only on the fact that a harm was inflicted intentionally, not by accident. (Hall, 1960, 83) 1 Introduction Criminal liability for those crimes that are conventionally recognised as the most serious requires not only that a criminal act occur but that the individual be responsible for it through possessing a ‘guilty mind’. Mens Rea signifies this: In Latin it means a guilty mind, but in legal use it denotes the mental state (subjective element) required for the particular crime in question. Or it can refer to the mental state commonly required for serious crimes (and a number of lesser offences). (Williams, 1983, 73) Mens Rea is a shorthand term denoting the existence of either intention to commit a crime, or recklessness (running a risk) as to whether a crime will occur as a result of one’s actions. In this chapter we deal with intention, saving recklessness until Chapter 4. Discussion of Mens Rea, as Williams’s definition suggests, may be crime-specific, ie focused upon the particular mental element for a given crime, 1 or more general, considering the common features of the mental element across a range of crimes. 2 It is 1 For example, a dishonest appropriation of property belonging to another with an intention permanently to deprive constitutes the Mens Rea of theft; an intent to kill or cause grievous bodily harm that of murder; an intention to have sexual intercourse in the knowledge of lack of consent that of rape. 2 The argument that the various particularisations of Mens Rea render a general discussion impossible (Sayre, 1931/32, 1026) is met by Hall (1960, 74–6).

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Criminal Law

  • Thomas Gardner, Terry Anderson(Authors)
  • 2017(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  All the state needed to prove, the court said, was that the sexual acts occurred. The woman’s contention that she was asleep was an affirmative defense, the court said, and she carried the burden of proof on that defense. Mens Rea: The Guilty Mind A cardinal principle of criminal law pertaining to true crimes was long ago ex- pressed in Latin as actus non facit reum nisi mens sit rea (“an act does not make a person guilty unless the mind is guilty”). The term Mens Rea means evil intent, criminal purpose, and knowledge of the wrongfulness of conduct. It is also used to indicate the mental state required by the crime charged, whether that is specific intent to commit the crime, recklessness, guilty knowledge, malice, or criminal negligence. Criminal liability usually requires “an evil-meaning mind [and] an evil-doing hand.” 3 However, while the phrase evil-meaning mind suggests an evil purpose for doing the evil act, a mind can be “guilty” without such evil purpose. For example, doing an act recklessly, but without the “evil” intent to harm another, may lack the Mens Rea for one crime but nonetheless satisfy the Mens Rea requirement of another. One’s state of mind can range from being “purposeful”—that is, intending a par- ticular result or consequence—to merely negligent—that is, failing to be aware of the probable results or consequences of an act. Figure 3.1 illustrates the degrees of mental fault. WHEN F AILURE TO ACT IS A CRI F F M E State and federal criminal codes usually identify and prohibit specific, affirmative actions, called crimes of commission. Examples of these crimes are the prohibitions against murder, robbery, and similar crimes where the crime consists of taking defined actions. A small percentage of crimes in criminal codes are crimes of omission—failure to act when a duty or obligation is imposed upon persons under certain circumstances. The following are examples of crimes of omission that can be found in state criminal codes.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Criminal Law

  • Joel Samaha(Author)
  • 2016(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  (989) Joel Bishop’s Commentaries on the Criminal Law (1907), the criminal law treatise most widely used by practicing lawyers from 1865 to 1912, put it simply: “An act and evil intent must combine to constitute a crime.” (§206). This concept of Mens Rea, called general intent, refers to a “mind bent on moral wrongdoing” without further refine- ment (Sayre 1932, 1019). Fast forward again to a 2001 case where Senior U.S. District Court Judge and Mens Rea scholar Jack Weinstein reaffirmed the Mens Rea principle as the criminal law’s “mantra.” Summing up his extended passage, Judge Weinstein concludes that “Western civilized nations have long looked to the wrongdoer’s mind to determine both the propriety and the grading of punishment” (U.S. v. Cordoba- Hincapie 1993, 489). Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 128 CHAPTER 4 • THE GENERAL PRINCIPLES OF CRIMINAL LIABILITY The Complexity of Mens Rea Mens Rea isn’t just ancient; it’s also complex. “No problem of criminal law . . . has proved more baffling through the centuries than the determination of the precise mental element necessary to convict of any crime” (Sayre 1932, 974). Several reasons account for this bafflement. First, whatever it means, Mens Rea is difficult to discover and then prove in court. Second, courts and legislatures have used so many vague and incomplete definitions of the mental element.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Criminal Law

  • Charles P. Nemeth(Author)
  • 2011(Publication Date)
  • Routledge

    (Publisher)

  83 Chapter 3 Actus Reus and Mens Rea KEYWORDS Corpus delicti: The body of evidence that constitutes the offense; the objective proof that a crime has been committed . General intent: The intent that must exist in all crimes. Intent: A state of mind wherein the person knows and desires the consequences of his act which, for purposes of criminal liability, must exist at the time the offense is committed. Judgment: A declaration by a court of the conviction of a criminal defendant and the punish-ment to be imposed. Knowledge: Awareness that a fact or circumstance probably exists. Negligence: Failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation. Omission: The act, fact, or state of leaving something out or failing to do something that is required by duty, procedure, or law. Reckless: Characterized by the creation of a substantial and unjustifiable risk to the lives, safety, or rights of others, and by a conscious and sometimes wanton and willful disregard for or indifference to that risk that is a gross deviation from the standard of care a reason-able person would exercise in like circumstances. Specific intent: Intent that is essential to certain crimes and, which, as an essential element of the crime, must be proved beyond a reasonable doubt. Strict liability: Liability in a crime where no specific or general Mens Rea is required. The con-duct itself, even if innocently engaged in, results in criminal liability. Willful blindness: Deliberate failure to make a reasonable inquiry of wrongdoing despite suspi-cion or an awareness of the high probability of its existence. IDEA AND MENTAL STATE IN CRIMINAL CULPABILITY Crimes, for the most part, require two major components: an act, known as actus reus, and a mind, known as Mens Rea. And these two components need an integration of sorts.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Modern Criminal Law

  Fifth Edition

  • Mike Molan(Author)
  • 2013(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  CHAPTER 3

  THE MENTAL ELEMENT—Mens Rea

  3.1 INTRODUCTION

  We saw in Chapter 2 that the prosecution must prove that the defendant brought about the prohibited act (or in some cases an omission or state of affairs). The prosecution’s next task is to prove that the defendant did this with the state of mind prescribed by the definition of the crime. This is usually referred to as the Mens Rea, but is sometimes also described as the ‘fault element’ or ‘mental element’. However, some caution is necessary here because ‘fault’ may be defined more broadly than Mens Rea or ‘mental element’. So, there is no doubt that negligence is ‘fault’ but, traditionally, it is not included within the definition of Mens Rea. At common law, Mens Rea usually means intention or recklessness. If the prosecution merely has to prove negligence to establish the further element for liability, then the offence is one which requires proof of fault but not of Mens Rea. Yet, such distinctions cannot be made with absolute conviction, since the courts have recognised a concept of ‘objective’ recklessness which very closely resembles negligence. As Nicola Lacey observed in her article, ‘A clear concept of intention: elusive or illusory?’ ((1993) 56 MLR 621):

  Mens Rea is the (not entirely happy) umbrella term used by most criminal law scholars to refer to a range of practical attitudes or states of mind on the defendant’s part, which form part of the definition of many offences’.

  There is a large number of offences in which the prosecution does not have to prove any fault element at all, neither Mens Rea nor even negligence. These are known as offences of strict liability (though, confusingly, judges sometimes refer to absolute liability

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  The Concept of Mens Rea in International Criminal Law

  The Case for a Unified Approach

  • Mohamed Elewa Badar(Author)
  • 2013(Publication Date)
  • Hart Publishing

    (Publisher)

  98 4 Mens Rea in the American Law Institute’s Model Penal Code A fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warn-ing fair, so far as possible the line should be clear. 1 I Introduction Much of the difficulty involved in ascertaining what state of mind, if any, is required for a particular crime lies in the ambiguous meaning of the particular word or phrase used. In the common law, offences were generally classified as requiring either ‘general intent’ or ‘specific intent’. 2 In US v Bailey et al , the Supreme Court noted that ‘this venerable distinction has been the source of a good deal of confusion’. 3 Wayne LaFave and Austin Scott explained: Sometimes ‘general intent’ is used in the same way as ‘criminal intent’ to mean the gen-eral notion of Mens Rea , while ‘specific intent’ is taken to mean the mental state required for a particular crime. Or, ‘general intent’ may be used to encompass all forms of the mental state requirement, while ‘specific intent’ is limited to the one mental state of intent. Another possibility is that ‘general intent’ will be used to characterize an intent to do something on an undetermined occasion, and ‘specific intent’ to denote an intent to do that thing at a particular time and place. 4 In addition, the words and phrases used by the judges to express the guilty mind necessary for common law crimes shed more heat than light with regard to the 1 McBoyle v United States , 283 US 25 (1931) (Justice Holmes). 2 For a classical discussion on the concept of Mens Rea in the criminal law of the United States see Jerome Hall, General Principles of Criminal Law , 2nd edn (New York: The Bobbs-Merrill Co, 1960) 70–145. 3 United States v Bailey et al , 444 US 394, 100 S Ct 624, 62 L Ed 2d 575 (1980).

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Criminal Law

  Historical, Ethical, and Moral Foundations

  • Charles P. Nemeth(Author)
  • 2022(Publication Date)
  • Routledge

    (Publisher)

  54 In these and other types of select offenses, the gray and murky world of strict liability finds its home.

  Mens Rea and the Degrees of Knowledge

  The imprecision of the mental typologies discussed above has long been a subject of debate in the legal community.55 Exactly where the lines are drawn between specific and general intent is fuzzy and inarticulate and certainly the legislative attempts to give clarity to these nebulous legal concepts has only been partially successful. What the law seeks is the gradation of offenses according to varying degrees of intentionality—from graver to the more inconsequential—its chief aim is to provide meaningful distinctions in the level of premeditation. Justice demands that those driven by malice and planned malevolence ought to be punished more than the criminally negligent.

  In its place, the Model Penal Code (MPC) Committee defines mental culpability in four major categories hoping to achieve the same end. They include:

  • Purpose
  • Knowledge
  • Recklessness
  • Negligence

  The MPC recognizes, as do the majority of American jurisdictions, that mental clarity can be derived at diverse states of intellectual operations. In “purpose,” we discern an agent who intends the end and who has crafted his or her criminal design with a plan in mind to affect it. In “knowledge,” we encounter a criminal mover who cognitively understands the nature and dynamic of the conduct chosen and who can intellectually rationalize its operation. In “reckless,” we meet those whose minds ravage the countryside before them, knowing that certain types of conduct are bound to injure others, whether it be lack of care for children, firearms in a crowd, drunken rampages, or Russian roulette. In “negligent,” we engage those whose errors and mistakes are more substantive than usual, yet still the product of human stupidity and arrogance—the DUI, excessive speeding and dare, neglect supervision for the ill and the infirm, auto infractions leading to injury, and other violations. Herein lies another avenue to differentiating the level of Mens Rea

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  French Criminal Law

  • Catherine Elliott(Author)
  • 2001(Publication Date)
  • Willan

    (Publisher)

  4

  Mens Rea

  Introduction

  Mens Rea in French law is called l’élément intellectuel , l’élément moral or l’élément psychologique . A basic distinction is drawn in French law between those offences which require intention and those which do not. Where no intention is required, the Mens Rea requirement can be satisfied on proof of negligence, that a person was deliberately put in danger or that the conduct was voluntary. The serious crimes are always intentional, major offences are in principle intentional except contrary legislative provisions requiring a fault of negligence or of deliberately putting another in danger. Minor offences normally only require that the accused behaved voluntarily. Each of the different forms of Mens Rea will be considered in turn.

  Intention

  The first paragraph of article 121–3 of the Criminal Code states:

  There is no serious crime or major crime in the absence of an intention to commit it.1

  The Ministry of Justice prepared a circular which provides an extensive commentary of the articles in the new Criminal Code.2 This points out that while there was no equivalent article in the old criminal code, the general principle it contained had guided those who had drafted the original code and had been recognised by the judges. Paragraph 1 of article 121–3 was therefore merely clarifying the existing position.

  Article 121–3(1) provides that all offences categorised as serious or major crimes will always need a mental element of intention even if the Code or other form of legislation defining the offence does not make direct reference to this requirement; while minor offences will only require intention if specific reference to this is made in the definition of the offence. For example, the offence of violence causing less than eight days incapacity to work is a minor offence which the legislature has specified requires intention.3

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Corporate Criminality and Liability for Fraud

  • Alison Cronin(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  4      Mens Rea, metaphysics and the manifest assessment of fault 4.1 Subjective individualism and the presumption of intention The way in which the law has developed in relation to fault attribution has had a profound effect in relation to the development of theories of corporate criminality. The combined effect of the demise of the presumption of voluntariness and the expanded concept of Mens Rea has led to the primary enquiry focusing on the defendant’s state of mind, a metaphysical mind that the fictional corporate entity simply cannot possess. However, given that the need to prove Mens Rea has been the real hurdle to corporate prosecution, typical academic accounts of the law’s approach to corporate criminality fail to acknowledge that “Mens Rea” has not been constant in terms of either its substantive meaning or the way in which it is attributed to the defendant and proved. While Chapter 3 addressed the former dynamic and the presumption relating to the voluntariness doctrine, this chapter addresses that lacuna in the context of other mental states. It will be recalled that proof of the orthodox canons of liability turned upon the operation of two evidential presumptions. Chapter 3 identified the combination of factors which led to the demise of the presumption of voluntariness and this chapter will reveal how the presumption of intention suffered a similar fate. According to this presumption, a defendant was presumed to have intended the natural consequences of his act. This conclusion was based on the assumption that an act foreseen was an act intended and, further, that the defendant had the mental capacity of a reasonable man such that he would have foreseen what were deemed its natural consequences. The presumption of intention of natural consequences, like that of voluntariness, presupposed that an initial consideration of the appearance of the conduct had taken place

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Understanding Criminal Law

  • Rodger Geary(Author)
  • 2012(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  R v Roberts (1971), the Court of Appeal held that the chain of causation would not be broken by a victim’s actions in trying to escape from the defendant’s unlawful acts, provided the victim’s actions were the reasonably foreseeable consequence of what the defendant had said or done.

  It should be noted that the reasonable foreseeability test in relation to causation will not require the victim’s characteristics to be attributed to the reasonable person as the defendant’s characteristics are attributed for the purposes of defences, such as provocation (R v Marjoram (1999)). It is important to distinguish between proof of actus reus, where the test is purely objective, and that of Mens Rea, where the objective reasonable person test can be subjectively modified by attributing to the reasonable person the defendant’s characteristics. The test, as far as actus reus is concerned, is simply this: would a reasonable person have foreseen the escape attempt as a possible outcome?

  Mens Rea

  Definition

  The term Mens Rea refers to the mental element in the definition of a crime. This mental element is usually denoted by words such as ‘intentionally’, ‘knowingly’, ‘maliciously’,‘recklessly’ or ‘negligently’.

  Intention

  There are two types of intention often mentioned by writers of textbooks on criminal law: direct and indirect (or oblique). Generally, crimes which require that the defendant acts intentionally can be committed with either type of intention.

  The Quest for a Clear Concept of Intention

  It is somewhat surprising, given the central place which the concept of intention holds in legal theory, that not only is there no legislative definition, but also that judicial attempts to develop a definition have suffered from lack of certainty, inconsistency and disagreement. Nicola Lacey has suggested that this state of affairs is the rather unsatisfactory result of the courts attempting to establish a compromise solution between those who emphasise the importance of conceptual analysis, and those who appeal to common sense meanings (Lacey, N, ‘A clear concept of intention: elusive or illusory?’ [1993] MLR 621).

  Sign up to read

  Learn more about book
• 

  Available until 27 Jan |Learn more

  Addressing Rape Reform in Law and Practice

  • Susan Caringella(Author)
  • 2008(Publication Date)
  • Columbia University Press

    (Publisher)

  Mens Rea NINE That nonagreement exists when no is indicated is one thing. That it is reasonable to interpret nonagreement when voiced or when force and its ilk are displayed is another. That the law should state that voluntariness, agreement should not and cannot be assumed or implied is yet another matter. Whether or not a man intends to perceive, or intends to interpret, or intends to ignore nonagreement when it is apparent, expressed, or legally stipulated as presumptive is a whole separate matter. And this is the matter of Mens Rea, or criminal intent. THE ROLE OF Mens Rea: IGNORED, USED, OR REDUNDANT AND UNNECESSARY? There are conflicting viewpoints about the role of Mens Rea in the crime of rape. Estrich, for example (as noted earlier), describes how intent in rape is disregarded in favor of resistance and consent requirements. She cites statements from specific cases to document her conclusion that “in completed rapes, questions of intent or mistake are rarely even mentioned” (1987: 94). The court cases she quotes supporting this are from Maine, Pennsylvania, and Massachusetts. These cases show how intent and mistakes, reasonable or unreasonable, were treated by the courts as irrelevant (94–95). Interpretations of other scholars about intent in the crime of rape support Estrich’s readings about how rape law skirts intent. Kinports, for example, states that “adhering to traditional formulations of the crime, the overwhelming majority of contemporary rape statutes contain no explicit Mens Rea requirement” (2001: 757). The rather obvious facts that force/coercion and resistance have had to be proven in order to demonstrate nonconsent and that this formulaic demand has presented such inordinate obstacles for rape convictions obviously buttress the notion that Mens Rea/intent is a less potent factor in defenses against rape prosecution

  Sign up to read

  Learn more about book