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Mens Rea – The Evil Mind

November 2, 2011

2. Law, 6. Trial

Mens Rea – The Evil Mind

Mens rea is Latin.  It means “the evil mind.”  (See how it fits into the broader scheme of things here.)  It doesn’t matter if you shot somebody.  There’s lots of non-criminal reasons, beyond cleansing the gene pool, to shoot someone.  Could have been an accidental discharge.  Could have mistaken him for a deer – he was, after all, prancing around on all fours with sticks tied to his head.  It could have been Self-Defense.  He could have, um, shot himself … “yeah, that’s what happened, he shot himself in the head three times.  It was amazing, officer.”

The point is that an apparent criminal act is not a crime until the actor’s mental state is attached.  There’s a couple more steps after that, but these first two are foundations.

Here’s how Pennsylvania defines the crime of “Attempt.”  Use that as an adjective – Attempted Robbery, Attempted Kidnapping, etc.:

Attempt:  A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

The key word for mens rea is “intent.”  The guy had to intend to commit a specific crime.  That’s not negligently tried to commit a crime, for example.

Fortunately, mens rea is viewed in only four stages, each decreasing in mental state:

  • Purposefully/Intentionally: the actor has the “conscious object” of engaging in conduct and believes or hopes that the attendant circumstances exist.
  • Knowingly: the actor is practically certain that his conduct will lead to the result.
  • Recklessly: the actor is aware that the attendant circumstances exist, but nevertheless engages in the conduct that a “law-abiding person” would have refrained from.
  • Negligently: the actor is unaware of the attendant circumstances and the consequences of his conduct, but a “reasonable person” would have been aware.

There is a fifth flavor:

  • Strict liability: the actor engaged in conduct and his mental state is irrelevant.

Strict liability applies to crimes like speeding – if you were doing 75 MPH in a 35 zone, whether you knew you were speeding or not is irrelevant.  “Here’s your ticket.  Have a nice day!”

So, back to our example of Attempt.  We could say this:

Attempt:  A person commits an attempt when, with as his “conscious object” to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

“Attempt” is an intentional crime.  We just substituted “intent” with “conscious object.”

Assume someone knew a guy that just got out of prison.  He did 15 years for Armed Robbery.  The ex-con asks to borrow some money.  Our guy gives it to him, gleefully assuming the ex-con is going to start a small business selling cut flowers.  The ex-con uses the money to buy a gun and immediately attempts to commit an Armed Robbery.  Now, I’m mixing accomplice and attempt issues – but go with me on this.  Read the definition of “Negligently” above.  Maybe a reasonable person would have realized that the ex-con was going to use the loan for criminal activity.  Our guy did not.  If Attempt were a crime requiring only a Negligent mens rea standard, then maybe our guy could be in some criminal trouble.  But it’s not, and our guy did not consciously intend to give the ex-con some money so he could buy a gun to try another robbery.

That illustrates the importance of the mens rea standard in the crime.

I’ve used the definitions from the Model Penal Code because, well, look at Pennsylvania’s definition of Negligently:

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

For most purposes, the MPC says the same thing in 1/3 of the words.

When you get a charging sheet, it usually gives not just the crime name (Burglary), but also the definition.  Burglary is a specific-intent crime.  I give that definition below followed by examples of the other three levels of mens rea.

Here’s an “intentionally” crime:  Burglary – A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

Here’s a “knowingly” crime: Possession of firearm or other dangerous weapon in court facility – A person commits an offense if he: (1) knowingly possesses a firearm or other dangerous weapon in a court facility or knowingly causes a firearm or other dangerous weapon to be present in a court facility; or (2) knowingly possesses a firearm or other dangerous weapon in a court facility with the intent that the firearm or other dangerous weapon be used in the commission of a crime or knowingly causes a firearm or other dangerous weapon to be present in a court facility with the intent that the firearm or other dangerous weapon be used in the commission of a crime.

Here’s a “recklessly” crime: Involuntary manslaughter – A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

Here’s a “negligently” crime: Voluntary manslaughter of unborn child – A person who kills an unborn child without lawful justification commits voluntary manslaughter of an unborn child if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by: (1) the mother of the unborn child whom the actor endeavors to kill, but he negligently or accidentally causes the death of the unborn child; or (2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the unborn child.

You can see that these are all serious crimes.  So a lower level of mens rea does not mean necessarily a less significant crime.  The idea is to ensure that the person’s state of mind matches not only the harm done but society’s reaction to it – the sentence.  We don’t incarcerate people merely because they did something we didn’t like.

Notice the few extra words in the crimes and the decreasing scale they create:

Intent – Knowingly – Reckless – Grossly Negligent – Negligently – Accidentally

All of these words define the level of mens rea required for the particular crime within which they appear.  If a crime has a “knowingly” standard but the DA can establish no more than “reckless” behavior, then she cannot establish mens rea and the prosecution fails.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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