Mens rea generally means a guilty mind but in modern criminal contexts refers to criminal intent. Modern mens rea stems from English common law, which at that time meant evil intent, and has been established as a necessary element of crime in the United States. Mens rea is one of five elements that establish a crime, each of which must be present for an action to be considered criminal. These elements are actus reus (i.e., guilty act that was committed consciously and voluntarily), mens rea (i.e., criminal intent), the concurrence of actus reus and mens rea, causation, and a resulting injury or crime. To better understand mens rea today, it is important to know when and why it was first established as an element of crime; thus, this article focuses on the development and evolution of the concept of mens rea as an element of crime.
Mens Rea in English Common Law
Intent has long been discussed as a part of criminal actions. However, it was not until the 17th century that English common law formally established the idea of mens rea being a necessary part of determining culpability. English common law produces many different, and often ambiguous, measures of an individual’s intent to commit a crime. The common law was established out of a necessity for common rules and in its earliest stages was more a function of regulating compensation for a crime. There were three major legal influences on the creation of English common law: Anglo-Saxon law, church or canon law, and Roman law. The foundation of English common law primarily came from Anglo-Saxon laws, which initially rejected Roman and canon laws, though they were later integrated into common law.
There were early Anglo-Saxon laws that included intent and in fact some crimes were considered impossible without it. Some crimes under these laws were rape, waylaying and robbery, and to some extent housebreaking. Other laws established the punishments based on the person’s intent. These punishments could range from a felony, if the person intended the crime, to civil negligence, if the action was an accident. One example of this is arson: If the person’s intent was to burn a house or barn down, then it was considered a felony; otherwise, it was considered negligence. Although some Anglo-Saxon laws acknowledged the importance of intent, others rejected it mostly in regard to the death of an individual.
Early Anglo-Saxon law regarding the death of an individual neglected to include intent as a part of establishing guilt and instead held people liable just for the act itself. These laws held people liable even in circumstances where there could be no knowledge that a crime would even be committed. The killing of an individual was only excused if the offender had a warrant from the king or was doing so in the pursuit of justice. An example of this strict liability would be if someone sent a messenger to deliver a letter and that messenger was killed along the way, the sender could be held liable for the death and owe payment to the next of kin. The common law that applies in this situation removes the legally liable person’s mind-set altogether by holding the individual response for the actions of another, even though they had no way of knowing such actions would occur. Many of these laws, however, were thought to be made in a generally broad sense and were seldom used to actually hold individuals liable for such an incident. The way in which the Anglo-Saxon law was followed meant that a person could be held liable for the death of anyone acting under the person’s direction or on the person’s behalf. In addition, these laws excluded killing someone in self-defense, though the pardoning system was later established to correct this.
Around the 12th century, canon laws began to influence the Anglo-Saxon laws regarding death. Canon law placed much importance on intent being a key element of guilt. A criminal act committed with intent made the offender morally guilty as well as legally guilty. The earliest reference to mens rea in an English law book came from teachings of the church. Canon law sought to determine sin through the examination of both the mental and physical elements of the crime. This conflicting idea made it difficult for common law judges to make rulings on liability in accordance with the Anglo-Saxon laws regarding death. The answer to this problem came from the king’s ability to pardon individuals who had been charged with a crime. This allowed judges to follow the Anglo-Saxon law by finding a person guilty no matter his or her knowledge of the crime while still acknowledging canon law’s insistence on intent being a factor. An unfortunate side effect to this solution was that individuals who would be pardoned still lost their possessions for being convicted. Canon law’s influence on common law continued to strengthen regarding moral blameworthiness. Eventually, the phrase actus non facit reum nisi mens sit rea, meaning “there can be no crime, large or small, without an evil mind,” became an essential part of criminal guilt.
The Roman law influence came around the 11th and 12th centuries, when universities began publishing scholarly and legal writings regarding old Roman law texts. The major influence of Roman law regarding intent came from the concepts of dolus and culpa. Dolus refers to intentional acts of fraud while culpa refers to negligent actions. These concepts reflect two different levels of intent and were therefore treated differently in regard to a criminal conviction. Beyond this idea of different levels of intent, Roman law also provided a number of standard definitions regarding crimes that helped establish true intent. Although Roman law continued to be referenced throughout the establishment of common law mens rea, it served as more of a tool to refine the term. This refinement helped strengthen the idea of mens rea until its acceptance in the 17th century.
After its universal establishment in common law in the 17th century, mens rea began to develop into a more precise definition to be used in criminal cases. Mens rea was initially a vague aspect of criminality and was purely based on general moral blameworthiness. The concept’s refinement came in the form of a case-by-case sharpening of the guidelines. Through the judicial process, cases in which different levels of mens rea existed were slowly placed into similar groups. This had to be done for each type of crime and resulted in a more precise interpretation of different mind-sets. Although this affected many types of crime, none changed more so than homicide. These changes allowed for additional justification for killing another person beyond a warrant and a pursuit of justice. Different types of murder began to develop with regard to the mental element of the crime. Any homicide that was not justifiable or pardonable was considered a felonious killing. Before these new laws, homicide had required the least amount of mens rea.
Mens Rea in Modern Criminal Law
As mens rea was sculpted from its origins as evil intent, it developed into these concepts used in today’s criminal law. Using the American Law Institute’s Model Penal Code, which was developed in the 1960s and updated in the 1980s, there are now established and widely accepted levels of mens rea that form continuity when determining culpability. The different levels of mens rea set forth by the Model Penal Code are specific intent, general intent, strict liability, and vicarious liability. Each of these is associated with a different state of mind, or level of knowledge, regarding a criminal act and, therefore, constitutes a different amount of legal culpability. Applying mens rea to a crime is the traditional way of determining capability. Intent means that the individual committing the criminal act did so with some level of knowledge or awareness that the act was illegal. Liability refers to an individual being held accountable for a criminal action regardless of mind-set. Liability is applied to lower level offenses like misdemeanors.
Specific intent covers actions committed purposefully and is the most culpable level of mens rea established by the Model Penal Code. Specific intent refers to a mind-set of specifically intending to commit the criminal action and specifically intending the results. This is the highest level of intent and therefore has the highest level of culpability. There are four types of crimes that fall under this category: SACs crimes (solicitation, attempt, and conspiracy), theft crimes, intent to kill, and voluntary manslaughter or heat of passion killings.
General intent occurs when specific intent is not necessary because it is inferred by the individual’s conduct. This intent can be classified as being purposefully (intentionally), knowingly (awareness of certainty), reckless (disregard for risks), or criminally negligent. Purposefully refers to when an individual intentionally acts with conscious objective to engage in a certain conduct or cause a certain result. Knowingly is when an individual acts with knowledge or awareness that the results are practically certain. Reckless refers to a situation in which the individual knows that there is an unjustifiable and substantial risk of harm. Criminal negligence is the lowest culpable classification of general intent and refers to an individual performing an action that greatly deviates from his or her duty of care that an ordinary prudent person would not do. This is also known as a gross deviation from tort standard of care. Examples of general intent crimes include rape, battery, arson, mayhem, involuntary manslaughter, and depraved heart murder.
Liability is separate from intent and refers to being held responsible regardless of one’s intentions. Strict liability refers to actions where the individual’s mind-set has no effect on guilt, meaning an individual is guilty just for committing the act. Actions that are covered by strict liability are often health, public welfare, and safety regulations such as speeding. Vicarious liability regards those who are responsible for another person’s actions. Only in special circumstances is an individual held liable if he or she did not perform the action or even had awareness that a criminal act took place. An example of this would be a bar owner being held responsible for his or her employee selling alcohol to an underage individual. Courts are not legally required to use the Model Penal Code guidelines, though many have adopted them.
References:
- American Law Institute. (1962). Model penal code. Philadelphia: Author.
- Perkins, R. M. (1939). A rationale of mens rea. Harvard Law Review, 52(6), 905–928.
- Sayre, F. B. (1932). Mens rea. Harvard Law Review, 45(6), 974–1026.
- Singer, R. G. (1989). The resurgence of mens rea: The rise and fall of strict criminal liability. Boston College Law Review, 30(2), 337–408.