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Mens rea (/ˈmɛnz ˈreɪə/; Law Latin for "guilty mind"[1]) is the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed. It is considered a necessary element of many crimes.[2][3]

The standard common law test of criminal liability is expressed in the Latin phrase actus reus non facit reum nisi mens sit rea,[4] i.e. "the act is not culpable unless the mind is guilty".[5][6] As a general rule, someone who acted without mental fault is not liable in criminal law.[7][8] Exceptions are known as strict liability crimes.[9][10][11] Moreover, when a person intends a harm, but as a result of bad aim or other cause the intent is transferred from an intended victim to an unintended victim, the case is considered to be a matter of transferred intent.[12]: 63–64 [13]

The types of mental states that apply to crimes vary depending on whether a jurisdiction follows criminal law under the common law tradition or according to the Model Penal Code.[14]

In civil law, it is usually not necessary to prove a subjective mental element to establish liability for breach of contract or tort, for example. But if a tort is intentionally committed or a contract is intentionally breached, such intent may increase the scope of liability and the damages payable to the plaintiff.

In some jurisdictions, the terms mens rea and actus reus have been replaced by alternative terminology.[15]: 95 [16]: 84 

Levels of mens rea within the United States

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Under the tradition of common law, judges would often require a “bad state of mind” in addition to an action or omission (actus reus) to find a criminal guilty.[4][17][18] Over time, culpable mental states (mens rea) became varied among different types of crimes.[4] Such crimes and mental states might include, for example, “malice” for murder, “fraudulence” for fraud, “willfulness and corruption” for perjury, and so on.[4] The crime of manslaughter, further, might not even require a “bad mind” but simply a “negligent” one.[4]

Within the United States, there is no single encompassing criminal law. Criminal laws are passed and enforced by the states‚ or the federal government, but each of these criminal "codes" vary and may or may not draw from the same theoretical sources.[19]

State criminal law

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The vast majority of criminal prosecutions in the United States are carried out by the several states in accordance with the laws of the state in question. Historically, the states (with the partial exception of civil-law Louisiana) applied common law rules of mens rea similar to those extant in England, but over time American understandings of common law mens rea terms diverged from those of English law and from each other. Concepts like "general intent" and "specific intent" dominated classifications of mental states in state common law,[20][21][22] but by the late 1950s to early 1960s, the common law of mens rea was widely acknowledged to be a slippery, vague, and confused mess.[23][24] This was one of several factors that led to the development of the Model Penal Code.[25] Nevertheless, states continue to use mental states beyond or besides those listed in the Model Penal Code.[26][27][28][29]

Federal criminal law

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Since the federal government of the United States does not have a generalized police power like that of the states, the scope of its criminal statutes is necessarily circumscribed.[30] Ordinary prosecutions are the province of the states, and only crimes of connected to the constitutional powers may be pursued by the federal government.[31] Consequently, Title 18[32] of the United States Code does not use the aforementioned culpability scheme but relies instead on more traditional definitions of crimes taken from common law. For example, malice aforethought is used as a requirement for committing capital murder.[33][34]

Model Penal Code

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Because the landscape of criminal law varied from state to state, the American Law Institute (which issues "restatements" of American legal jurisprudence) declined to issue a restatement of criminal law in favor of a "model" code for states to issue new, standardized criminal law.[35] This Model Penal Code ("MPC") was completed in 1962, and received praise from legal scholars for its reformulation of criminal law.[36][37] Although not at all states follow the criminal law as constructed within the MPC, over thirty-four states had adopted part or substantially all of the MPC as law by 1983.[36] The federal government has not adopted the MPC, although it has attempted to do so for many decades.[35]

Since its publication, the formulation of mens rea set forth in the Model Penal Code has been highly influential throughout the United States in clarifying the discussion of the different modes of culpability.[23][35] The following levels of mens rea are found in the MPC §2.02(2),[38][7]: 60–62  and are considered by the United States Supreme Court to be the four states of mind that give rise to criminal liability[39]:

  • Negligently: a "reasonable person" ought to be aware of a "substantial and unjustifiable risk" that is a "gross deviation" from a normal standard of care.[40]
  • Recklessly: the actor "consciously disregards a substantial and unjustifiable risk" in "gross deviation" from a normal standard of care.[40]
  • Knowingly: the actor is "practically certain" that his conduct will lead to the result,[41] or is aware to a high probability that his conduct is of a prohibited nature, or is aware to a high probability that the attendant circumstances exist.
  • Purposefully: the actor consciously engages, in conduct and "desires" the result. The Supreme Court has not found a large difference between purposeful and knowing conduct, not only in theory but also in application.[41]

The above mental states also work in a hierarchy, with negligence as the lowest mental state and purposefully as the highest: a finding of negligence establishes a state of recklessness, knowingness, and purpose; a finding of recklessness establishes a finding of knowingness and purpose; and a finding of knowingness establishes a state of purpose.[7](5)[42]

The MPC also recognizes culpability not because of a mental state, but for crimes that are legislatively proscribed due to the imposition of "absolute liability."[43] Strict liability crimes will require evidence of such legislative intent, and courts seriously examine such evidence before assuming a crime permits strict liability rather than a mens rea.[44]

  • Strict liability: the actor engaged in conduct and his mental state is irrelevant.[45] This mens rea may only be applied where the forbidden conduct is a mere violation, i.e. a civil infraction.

Differences between common law crimes and MPC crimes

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The elements constituting a crime vary between codes that draw on common law principles and those that draw from the Model Penal Code. For example, the mens rea required of murder in federal law is distinct from the mens rea of murder under the Texas Penal Code (which adopted the Model Penal Code in 1974[36][35]):

Murder is the unlawful killing of a human being with malice aforethought.

— 18 U.S.C. § 1111 (following the definition in traditional common law), https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section1111&num=0&edition=prelim

A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual

— portion of Texas Penal Code § 19·02 (modern offense element), https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm#19.02

In the common law approach as under 18 U.S.C. §1111, the definition of murder includes an actus reus (the unlawful killing of a human being) and a common law mens rea: malice aforethought. Modern criminal law approaches the analysis somewhat differently. Using a framework from the American Law Institute's Model Penal Code, homicide is a "results" offense in that it forbids any "purposeful" or "knowing" conduct that causes, and therefore results in the death of another human being. "Purposeful" in this sense means the actor possessed a conscious purpose or objective that the result (i.e. the death of another human being) be achieved. "Knowing" means that the actor was aware or practically certain that a death would result, but had no purpose or desire that it occur. And by contrast with traditional common law, the Model Penal Code specifically distinguish purpose and knowledge to avoid confusion regarding "intent" elements.[46] Indeed, many states still adhere to older terminology, relying on the terms "intentional" to cover both types of mens rea: "purposeful" and "knowing".[47]

Limits and criticisms of MPC mens rea

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It should be noted that not all states have adopted the MPC, and that for states that have, application of the Model Code varies.[48] Some scholars have further criticized the levels of culpability in the current Model Penal Code are insufficient or need revision.[49][50] Explanations of incoherency range from conflicted philosophical commitments,[51] while other explanations have stressed that the federal governments' failure to explicitly adopt the Model Penal Code resulted in disorganization and inconsistent departure from common law precedents.[52]

Since the publication of the MPC, norms towards crimes have also changed, especially regarding sexual crimes, hate crimes, drug crimes, and digital crimes.[53] But while some scholars argue that commitment to rehabilitation gave way to "cynicism and fatigue,"[53] others argue that the original commitment of the MPC to "imprisonment as a last result" should be preserved in revisions to the Code.[54]

Rather than dwell on philosophical or normative arguments, some scholars have looked to evidence-based arguments to update the Code. In an empirical study, participants were presented with scenarios and asked to rate how deserving of punishment the scenario was.[55] The results showed that participants' judgments matched up with the hierarchy of mens rea in the MPC, but also found that participants struggled most with "recklessness" scenarios. As a result, the author suggests revising the language of the categories, according to empirical studies such as his own.

Modes of culpability outside of the United States

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The levels of mens rea and the distinction between them vary among jurisdictions. Although common law originated from England, the common law of each jurisdiction with regard to culpability varies as precedents and statutes vary.

England and Wales

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  • Direct intention: the actor has a clear foresight of the consequences of his actions, and desires those consequences to occur. It is his aim or purpose to achieve this consequence.
  • Oblique intention: the result is a virtually certain consequence or a 'virtual certainty' of the defendant's actions, and that the defendant appreciates that such was the case.
  • Knowingly: the actor knows, or should know, that the results of his conduct are reasonably certain to occur.
  • Recklessness: the actor foresees that particular consequences may occur and proceeds with the given conduct, not caring whether those consequences actually occur or not.
  • Criminal negligence: the actor did not actually foresee that the particular consequences would flow from his actions, but a reasonable person, in the same circumstances, would have foreseen those consequences.

Scotland

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  • Intention: the accused willingly committed a criminal act entirely aware of his actions and their consequences. Necessary for murder and for assault.
  • Recklessness: the accused was aware the criminal act could be potentially dangerous but did not give a second thought to its consequences, for example, involuntary culpable homicide.
  1. ^ MENS REA, Black's Law Dictionary (11th ed. 2019)
  2. ^ "Mens rea is generally an essential element of any criminal offense." 21 Am. Jur. 2d Criminal Law § 112
  3. ^ "The relevant mens rea is a critical element of the crime." Brooks v. People, 448 P.3d 310, 312 (Colo., 2019)
  4. ^ a b c d e 1 Subst. Crim. L. § 5.1(a) (3d ed.)
  5. ^ Lanius, D., Strategic Indeterminacy in the Law (Oxford: Oxford University Press, 2019), p. 113.
  6. '^ "By the time of Coke, the maxim 'actus non facit reum nisi mens sit rea (an act does not make one guilty unless his mind is guilty) had become well ingrained in the common law, and it remains a central precept of Anglo-American criminal law today." Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 Utah L. Rev. 635, 636 (1993)
  7. ^ a b c ". . . a person is not guilty 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." Model Penal Code § 2.02(1)
  8. ^ "A crime ordinarily is not committed if the mind of the person doing the act is innocent." 21 Am. Jur. 2d Criminal Law § 112
  9. ^ 21 Am. Jur. 2d Criminal Law § 127
  10. ^ "Strict liability crimes are the exception and not the rule." 21 Am. Jur. 2d Criminal Law § 130
  11. ^ § 5.5. Strict liability, 1 Subst. Crim. L. § 5.5 (3d ed.)
  12. ^ Hall, D. E., Criminal Law and Procedure (Boston: Cengage Learning, 2015), pp. 63–64.
  13. ^ "Under the common-law doctrine of 'transferred intent,' if an accused attempts to injure one person and an unintended victim is injured because of the act, the accused's intent to injure the intended victim is transferred to the injury of the unintended victim, even though the wounding was accidental or unintentional." 21 Am. Jur. 2d Criminal Law § 115
  14. ^ § 5.1(a) Common law and statutory crimes, 1 Subst. Crim. L. § 5.1(a) (3d ed.)
  15. ^ Child, J., & Ormerod, D., Smith, Hogan, and Ormerod's Essentials of Criminal Law, 2nd ed., (Oxford: Oxford University Press, 2015), p. 95.
  16. ^ Ibid., 3rd ed., 2019, p. 84.
  17. ^ "[T]he mental state element that is part of the definition of most criminal offenses, is crucial to culpability and central to our value as moral beings." Stephen J. Morse, Inevitable Mens Rea, 27 Harv. J.L. & Pub. Pol'y 51, 51–52 (2003).
  18. ^ "The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Smith v. People of the State of California, 361 U.S. 147, 150, 80 S. Ct. 215, 217 (1959)
  19. ^ Markus Dubber, "The American Law Institute's Model Penal Code and European Criminal Law" in André Klip ed., Substantive Criminal Law of the European Union (Maklu, 2011), at 2.
  20. ^ "Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses", Michael A. Foster, June 30, 2021, Congressional Research Service, R46836, p.4, https://crsreports.congress.gov/product/pdf/R/R46836/1
  21. ^ INTENT, Black's Law Dictionary (11th ed. 2019)
  22. ^ "Much of the existing uncertainty as to the precise meaning of the word 'intent' is attributable to the fact that courts have often used such phrases as 'criminal intent,' 'general intent,' 'specific intent,' 'constructive intent,' and 'presumed intent.' 'Criminal intent,' for example, is often taken to be synonymous with mens rea, the general notion that except for strict liability offenses some form of mental state is a prerequisite to guilt." § 5.2(e) 'Criminal,' 'constructive,' 'general,' and 'specific' intent, 1 Subst. Crim. L. § 5.2(e) (3d ed.)
  23. ^ a b Dubber (2002), pp. 60–80.
  24. ^ "Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses", Michael A. Foster, June 30, 2021, Congressional Research Service, R46836, p.3, https://crsreports.congress.gov/product/pdf/R/R46836/1
  25. ^ United States v. Bailey, 444 U.S. 394, 403–04 (1980) ("At common law, crimes generally were classified as requiring either “general intent” or “specific intent.” This venerable distinction, however, has been the source of a good deal of confusion. . . . This ambiguity has led to a movement away from the traditional dichotomy of intent and toward an alternative analysis of mens rea. See id., at 202. This new approach, exemplified in the American Law Institute's Model Penal Code . . .")
  26. ^ "In Commonwealth v. Webster, Shaw, C.J. described malice as a state of mind which includes not only anger, hatred and revenge, but every other unlawful motive." § 106. Malice, 32 Mass. Prac., Criminal Law § 106 (3d ed.)
  27. ^ "In criminal law, mental states run from bad to worse roughly in order of negligence, recklessness, knowledge, and purpose, with willfulness, maliciousness, and similar adjunct mental states interspersed at various levels in that hierarchy." 17 Cal. Jur. 3d Criminal Law: Core Aspects § 129
  28. ^ The Penal Law provides that when the commission of an offense, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms “intentionally,” “knowingly,” “recklessly,” or “criminal negligence,” or by use of terms, such as “with intent to defraud” and “knowing it to be false,” describing a specific kind of intent or knowledge. (35 N.Y. Jur. 2d Criminal Law: Principles and Offenses § 26)
  29. ^ 26 Ohio Jur. 3d Criminal Law: Procedure § 886 (categorizing mens rea according to general and specific intent)
  30. ^ United States v. Lopez, 514 U.S. 549 (1995).
  31. ^ "In our federal system, “Congress cannot punish felonies generally,” Cohens v. Virginia, 6 Wheat. 264, 428, 5 L.Ed. 257 (1821); it may enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce. As a result, most federal offenses include, in addition to substantive elements, a jurisdictional one." Torres v. Lynch, 578 U.S. 452, 457 (2016).
  32. ^ "Office of the Law Revision Counsel, United States Code".
  33. ^ "18 USC §1111: Murder".
  34. ^ Dubber (2002), p. 55.
  35. ^ a b c d Robinson, Paul; Dubber, Markus (2007-07-27). "The American Model Penal Code: A Brief Overview". New Criminal Law Review.
  36. ^ a b c American Law Institute. Model Penal Code. "Forward."
  37. ^ "As all criminal law scholars understand, the Model Penal Code is one of the great intellectual accomplishments of American legal scholarship of the mid-twentieth century." Gerard E. Lynch, Revising the Model Penal Code: Keeping It Real, 1 Ohio St. J. Crim. L. 219 (2003)
  38. ^ Blond, N. C., Criminal Law (Alphen aan den Rijn: Wolters Kluwer, 2007), pp. 60–62.
  39. ^ "We begin by setting out four states of mind, as described in modern statutes and cases, that may give rise to criminal liability. Those mental states are, in descending order of culpability: purpose, knowledge, recklessness, and negligence." Borden v. United States, 141 S. Ct. 1817, 1823, 210 L. Ed. 2d 63 (2021)
  40. ^ a b Borden v. United States, 141 S. Ct. 1817, 1824 (2021).
  41. ^ a b Borden v. United States, 141 S. Ct. 1817, 1823 (2021).
  42. ^ See e.g., Tex. Penal Code Ann. § 6.02(e) [1]
  43. ^ Model Penal Code § 2.05
  44. ^ "Absent statutory language expressly imposing absolute liability, the states of mind denominated in HRS § 702–204 will generally apply, because we will not lightly discern a legislative purpose to impose absolute liability." State v. Eastman, 913 P.2d 57, 66, 81 Hawai'i 131, 140 (Hawai i,1996)
  45. ^ "The only proof required to convict an individual of an absolute liability offense is that an individual engaged in the prohibited conduct." 21 Am. Jur. 2d Criminal Law § 127
  46. ^ "Yet, because there are several areas of the criminal law in which there may be good reason for distinguishing between one's objectives and knowledge, the modern approach is to define separately the mental states of knowledge and intent (sometimes referred to as purpose, most likely to avoid confusion with the word “intent” as traditionally defined)." The modern view: intent and knowledge distinguished, 1 Subst. Crim. L. § 5.2(b) (3d ed.).
  47. ^ Colb, S. F., "Why Can't Jurors Distinguish 'Knowing' From 'Reckless' Misconduct?", Justia, January 11, 2012.
  48. ^ "On the other hand, there is no uniform code that actually exists as law in all fifty states. While the Model Penal Code (MPC) may serve as a useful stand-in for such a uniform law, few, if any, states have adopted the MPC in its entirety, and most have rung interesting changes on it, accepting some parts and rejecting or modifying others. The result is that, as one wag has put it, criminal law professors are presented with the choice of teaching dead law (the common law) or mythical law (the MPC)." Chad Flanders, The One-State Solution to Teaching Criminal Law, or, Leaving the Common Law and the Mpc Behind, 8 Ohio St. J. Crim. L. 167 (2010)
  49. ^ Baron, Marcia (2019-09-28). "Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide". Criminal Law and Philosophy. 14 (1): 69–89. doi:10.1007/s11572-019-09509-5. ISSN 1871-9791.
  50. ^ Simons, Kenneth W. (2003). "Should the Model Penal Code's Mens Rea Provisions Be Amended?". SSRN Electronic Journal. doi:10.2139/ssrn.397642. ISSN 1556-5068.
  51. ^ "To a large extent, the ambiguities surrounding the mens rea concept are the product of an ongoing historical process of accommodating within a single system of criminal law the virtues of two sometimes conflicting philosophical traditions: retributivism and utilitarianism. That the meaning of the “guilty mind” requirement vacillates and evolves over time is therefore hardly surprising given the dynamics of the relationship between retributive and utilitarian theory." Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 Utah L. Rev. 635, 640 (1993)
  52. ^ McDermott, Connor B. (2021). "Mess Rea". Lewis & Clark Law Review. 25: 607, 639.
  53. ^ a b Joshua Dressler, The Model Penal Code: Is It Like A Classic Movie in Need of A Remake?, 1 Ohio St. J. Crim. L. 157, 158-159 (2003).
  54. ^ "In particular, the original MPCS' bold and forceful commitment to imprisonment as a last resort and least-preferred reality, both at the time of sentencing and at all times thereafter, is a refreshing and needed perspective in an era of mass incarceration and extreme punishment terms. A fitting sense of inprisonment's horrible human realities, not to mention its inefficacies, is palpable in the original MPCS. In the MPCS revision, sentencing and inprisonment has the feel of a technical government challenge, rather than a necessary evil within a society committed to human liberty and personal freedoms." Douglas A. Berman, The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions, 61 Fla. L. Rev. 709, 722 (2009).
  55. ^ Matthew R. Ginther, The Language of Mens Rea, 67 Vanderbilt Law Review 1327 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol67/iss5/2
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