VIII. Elements of a Crime
To punish someone, the government must prove that a crime was committed. Generally speaking, there are five elements to every crime: (1) actus reus, (2) mens rea, (3) concurrence of the actus reus and mens rea, (4) causation, and (5) harm (Garland, 2003). The criminal law does not punish for moral wrongs, and no criminal liability is attached to an act unless it is forbidden in a criminal statute.
The actus reus of any criminal offense is the act or an omission that the accused engaged in that was against the law. Although there are a few crimes that punish a person for failure to act when a statutory duty demands it, the vast majority of criminal offenses involve some act by the perpetrator (LaFave, 2003). The actus reus for a crime might be performed in several ways. For example, all three of these acts supply the actus reus for a murder:
- Fred helps Barney and Betty plan a murder.
- Barney commits the murder.
- Betty acts as the lookout.
Although the typical crime involves an affirmative physical act, crimes can be committed by a person’s failure to act. Definitions of various crimes refer to an omission that provides the basis for criminal liability. The omission might be specifically designated in the statute. For example, it could be illegal to not pay child support or income taxes. Some states criminalize the failure to carry appropriate worker’s compensation insurance or vehicle liability insurance. Other omissions are based upon a special relationship, which creates a duty to act. The accused might fail to perform altogether or be grossly negligent in his or her performance. For example, parents have a duty to provide children with food, shelter, clothing, and medical care or be liable for child neglect. The relationship can be created by contract (such as a lawyer–client relationship) or by the defendant’s act of creating a risk (such as the requirement to help put out a fire that the defendant accidentally started) (Schulhofer, 2001).
Under special circumstances, words alone can be the basis of criminal liability. The criminal statutes of many states contain crimes where the spoken word creates criminal culpability without any further action. In other words, just talking about committing a crime can be a crime. There are five areas where words can be the basis for criminal liability (Frase, 2002):
- Solicitation occurs when a person asks another to commit a crime, such as solicitation of murder or some other felony, or solicitation of a misdemeanor, such as prostitution. In many states, solicitation can only be committed for crimes named in a specific solicitation statute.
- A criminal threat involving threats to harm another with the apparent ability to carry out the threat can be the basis of criminal liability.
- The use offensive, annoying, or disruptive speech that would offend a reasonable person could become the basis of criminal liability. This includes annoying or indecent phone calls or interruption of a lawful assembly, such as when a person disrupts a meeting or church service.
- Providing false information when a person has a duty to tell the truth, such as giving false information to law enforcement during an investigation or making a false criminal accusation could be criminally liable.
- Intentionally providing a false directive can result in criminal sanctions. For example, a person that intentionally gives instructions that harm another, such as telling a person to take incorrect medication or instructing someone to mix dangerous chemicals so that she harms herself. (p. 599)
Similarly, there are times when merely possessing an item can be the basis of criminal liability. Every state has possessory offenses where the actual or “constructive” possession of an illegal substance or object is deemed illegal. To establish constructive possession, the government must prove that the accused knew of the location of the illegal item (e.g., controlled substance, illegal weapon, improvised explosive device) and that he or she had both the power and the intention to exercise control over it (McClain & Kahan, 2002). For example, Fred is in actual possession if drugs are in his pocket. Moreover, he is in constructive possession of drugs if they are located in his garage. However, if Fred shares his garage with his neighbor Barney, proving constructive possession might be difficult.
The second requirement of criminal liability is the mens rea, or the guilty mind. There is a Latin maxim in law that states actus non facit reum nisi mens sit rea, which means “An act does not make a person guilty unless the mind is guilty” (Garner, 2004). To show that the mind is guilty, it must be proven that the person acted with criminal purpose, knowledge of the wrongfulness of the conduct, and an evil intent. Typically, a statute will require a particular mental state or intent that must be proven to sustain a conviction. For example, a statute might require that a person act purposely, knowingly, recklessly, or negligently. At times, proving intent can be difficult. However, the prosecution can prove the mental element of the crime by demonstrating the actions of the defendant, showing the circumstances that surrounded those actions, and offering evidence of an admission or a confession by the defendant (Reitz, 2002).
The actions of the defendant are important to show because the law states that it is reasonable to infer that a person ordinarily intends the natural and probable consequences of his or her acts. In fact, a jury is permitted to infer that the defendant intended all the consequences that a person in that position, acting under similar circumstances and possessing the same knowledge, should reasonably have expected to result from the defendant’s actions. That is the definition of something the law calls the general intent. For example, if you brandish a weapon, show it to the bank teller, and pull the trigger all while pointing it in her direction, it is reasonable to infer that you intended to kill her. That was your general intent (Schulhofer, 2001).
Some crimes are not general-intent crimes but require a specific intent—a special mental element above and beyond any mental state required with respect to the actus reus of the crime. It is set forth in a statute by one of the following: an intention to do an act for the purpose of accomplishing some additional act (Frankel, 1983)—a good example would be kidnapping for the purpose of raping at another location; an intention to do an act to achieve some further consequences beyond the conduct or result that constitutes the actus reus of the offense—for example, the filing of a false tax return to avoid payment of taxes.
When a defendant commits a criminal act but accidentally harms an unintended party, the accused might still be criminally liable under the theory of transferred intent. The rationale for the theory is that a person should not be absolved of liability simply because he or she has poor aim. Transferred intent keeps a perpetrator from avoiding liability when he misses his intended target and injures an innocent third person (Schulhofer, 2001). For example, if Fred throws a stone at Barney but Barney ducks and the stone hits Wilma instead, Fred is still criminally liable.