§ 5.01   Common Law Principle and Definition

 

Simply put, "mens rea" refers to the mental component of a criminal act.  However, there is much ambiguity inherent in this term.  The doctrine has been defined in two basic ways:

 

[A]  "Culpability" Definition of "Mens rea" – In the early development of the doctrine, many common law offenses failed to specify any mens rea. Mens rea was defined broadly in terms of moral blameworthiness or culpability.  Thus, at common law and in jurisdictions that still define the doctrine broadly, it was and is sufficient to prove that the defendant acted with a general culpable state of mind, without the need to demonstrate a specific state of mind such as "intentionally," "knowingly," or "recklessly."

 

[B]  "Elemental" Definition of "Mens rea" – Much more prevalent today is a narrow definition of mens rea which refers to the particular mental state set out in the definition of an offense. In this sense, the specific mens rea is an element of the crime.  Note that a person can be culpable in that he was morally blameworthy yet lack the requisite elemental mens rea.

 

§ 5.02   Specific Mens rea Requirements

 

[A]  "Intentionally" – A person "intentionally" causes the social harm of an offense if: (1) it is his desire (i.e., his conscious object) to cause the social harm; or (2) he acts with knowledge that the social harm is virtually certain to occur as a result of his conduct.

 

The doctrine of "transferred intent" attributes liability to a defendant who, intending to kill (or injure) one person, accidentally kills (or injures) another person instead. The law "transfers" the defendant’s state of mind regarding the intended victim to the unintended one.

 

[B]  "Knowingly" or "With Knowledge" – Sometimes, knowledge of a material fact – an attendant circumstance – is a required element of an offense.  A person has "knowledge" of a material fact if he is aware of the fact or he correctly believes that it exists.  Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the defendant is said to be guilty of "wilful blindness" or "deliberate ignorance," i.e., if the defendant is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation of the fact.  An instruction in this regard is sometimes called an "ostrich instruction."

 

[C]  "Wilfully" – "Wilful" has been held in different jurisdictions to be synonymous with other terms, e.g., "intentional," "an act done with a bad purpose," "an evil motive," or "a purpose to disobey the law."

 

[D]  "Negligence" – Criminal negligence (as opposed to civil negligence) ordinarily requires a showing of a gross deviation from the standard of reasonable care. A person is criminally negligent if he takes a substantial, unjustifiable risk of causing the social harm that constitutes the offense charged.

 

Three factors come into play when determining whether a reasonable person would have acted as the defendant did:

 

 

[E]  "Recklessness" – A finding of recklessness requires proof that the defendant disregarded a substantial and unjustifiable risk of which he was aware. 

 

[F]  Distinction Between Negligence and Recklessness – The line between "criminal negligence" and "recklessness" is not drawn on the basis of the extent of the defendant’s deviation from the standard of reasonable care — the deviation is gross in both cases — but rather is founded on the defendant’s state of mind. Criminal negligence involves an objective standard – the defendant, as a reasonable person, should have been aware of the substantial and unjustifiable risk he was taking); recklessness implicates subjective fault, in that the defendant was in fact aware of the substantial and unjustifiable risk he was taking but disregarded the risk.

 

[G]  "Malice" – A person acts with "malice" if he intentionally or recklessly causes the social harm prohibited by the offense.

 

§ 5.03   Statutory Interpretation of Mens rea Terms

 

It is sometimes necessary to determine the precise elements that the mens rea term is intended to modify.  For example, in United States v. X-Citement Video, Inc., [513 U.S. 64 (1994)] the defendant was convicted of violating a federal statute that made it a felony to knowingly transport, receive, or distribute in interstate or foreign commerce any visual depiction "involv[ing] the use of a minor engaging in sexually explicit conduct." Although the defendant admitting to trading in sexually explicit materials, he claimed that he was unaware that such materials depicted a minor.  The issue before the Supreme Court was whether the term "knowingly" modified the attendant circumstance element (relating to the age of the person depicted in the video) in addition to the obvious modification of the conduct elements ("transport, receive, or distribute").

 

The Supreme Court determined that the legislature intended to require knowledge of the age of the person in the video since distribution of sexually explicit, but non-obscene, videos of adults was lawful.  It was therefore the knowledge that the video depicted child pornography that was criminal. 

 

§ 5.04   "Specific Intent" and "General Intent"

 

The common law distinguished between general intent and specific intent crimes.  Today, most criminal statutes expressly include a mens rea term, or a particular state of mind is judicially implied.

 

[A]  Specific Intent – Generally speaking, a "specific intent" offense is one in which the definition of the crime:

 

 

[B]  General Intent – An offense that does not contain one of the above features is termed "general intent," e.g., battery, often defined statutorily as "intentional application of unlawful force upon another." This is a general-intent crime, for the simple reason that the definition does not contain any specific intent beyond that which relates to the actus reus itself. The only mental state required in its definition is the intent to "apply unlawful force upon another," the actus reus of the crime.

 

§ 5.05   Model Penal Code

 

[A]  General Principle – Model Penal Code § 2.02(1) provides that, except in the case of offenses characterized as "violations," a person may not be convicted of an offense unless "he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense."  The Code requires the prosecution to prove that the defendant committed the actus reus of the offense—in fact, each ingredient of the offense—with a culpable state of mind, as set out in the specific statute.

 

Thus the Code:

 

 

[B]  Mens Rea Terms

 

[1]  "Purposely" – In the context of a result or conduct, a person acts "purposely" if it is his "conscious object to engage in conduct of that nature or to cause such a result." [MPC § 2.02(2)(a)(i)] A person acts "purposely" with respect to attendant circumstances if he "is aware of the existence of such circumstances or he believes or hopes that they exist."

 

[2]  "Knowingly" – A result is "knowingly" caused if the defendant "is aware that it is practically certain that his conduct will cause such a result." [MPC § 2.02(2)(b)(ii)] With "attendant circumstances" and "conduct" elements, one acts "knowingly" if he is "aware that his conduct is of that nature or that such [attendant] circumstances exist.  Furthermore, the Code states that knowledge is established, if "a person is aware of a high probability of . . . [the attendant circumstance’s] existence, unless he actually believes that it does not exist." [MPC § 2.02(7)]

 

[3]  "Recklessly" and "Negligently" – The Code provides that a person acts "recklessly" if he "consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct." A risk is "substantial and unjustifiable" if "considering the nature and purpose of the defendant’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation."  [MPC § 2.02(2)(c)]

 

A person’s conduct is "negligent" if the defendant "should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct." [MPC § 2.02(d)]  The definition of "substantial and unjustifiable" is the same as that provided for in the definition of "recklessness," except that the term "reasonable person" is substituted for "law-abiding person."

 

As in common law, "negligence" and "recklessness," therefore, require the same degree of risk-taking: "substantial and unjustifiable," and the difference between them lies in the fact that the reckless defendant "consciously disregards" the risk, whereas the negligent defendant’s risk-taking is inadvertent.

 

[C]  Principles of Statutory Interpretation – A single mens rea term — of whatever specific type — modifies each actus reus element of the offense, absent a plainly contrary purpose of the legislature.