Define: Mens Rea

The mental component of criminal liability. To be guilty of most crimes, a defendant must have committed the criminal act (the actus reus) in a certain mental state (the mens rea). The mens rea of robbery, for example, is the intent to permanently deprive the owner of his property.

The State of Mind of the Person Committing the Crime

In Britain and other common law jurisdictions, there is a saying that “an act does not make a person guilty unless the mind is also guilty.” In other words, simply doing something will not, in

In general, make a person a criminal unless their intent was to do or cause a criminal act. It is this intention which often establishes mens rea (literally the ‘guilty mind’) and turns the act into a crime.

The standard common law test of criminal liability is usually expressed in terms of Edward Coke’s statement, ‘actus non facit reum nisi mens sit rea’ which means that ‘the act does not make a person guilty unless their mind is also guilty. There must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged.

Concepts

Each of these classes depends on the presence or absence of foresight and a second element usually expressed as “desire”. In this context, the word “desire” is dispassionate. For instance, one may visit a dentist for treatment, recognising that this is necessary but having little or no “desire” to do so. Nevertheless, the requisite intentionality is present in the decision to seek treatment because one desires what is necessary, no matter that it may be unpleasant. Hence, the essence of this second element is that, whether subjectively or objectively, the accused wishes or aims to cause the foreseen consequences to occur.

• “Direct intention” is when the accused has a clear foresight of the consequences of his actions and desires those consequences to occur.
• “Oblique intention” is where the result is a virtually certain consequence of the defendant’s actions. (Authority: R v Nedrick [1986], leading case: R v Matthews & Alleyne [2004]).
• “Knowingly” is where the accused knows, or should know, that the results of his conduct are reasonably certain to occur.
• Recklessness” is where the accused foresees that particular consequences may occur and proceeds with the given conduct, not caring whether those consequences actually occur or not. (Authority; R v Cunningham [1957], leading case; R v G & R [2003], reaffirmed Cunningham following the muchly criticised House of Lords decision in R v Caldwell [1982]).
• “Criminal negligence” occurs where the accused 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.

As an example of the four types of mens rea, consider a person who walks into a room which is in darkness:

• (a) knowing that it is full of fragile and valuable antiques, and with the objective or aim being to cause the maximum amount of damage;
• (b) knowing that it is full of valuable objects but simply blundering about rather than reaching for the light switch;
• (c) knowing that it is full of valuable objects but hoping to walk quickly to the centre of the room where the main light switch is located without damaging anything;
• (d) without being aware of there being anything specifically valuable in the room, not knowing where the light switch is, and hoping to find somewhere quiet to sit.

In the first of these four instances, damaging some of the antiques would be intentional or purposeful. Example (b) shows knowledge and high probability, which suggests knowing. Example (c) is reckless, while Example (d) illustrates criminal negligence if the reasonable man would have taken more care when entering a room with which he was not familiar.

Ignorance Of The Law And Mens Rights

The general rule under U.S. law is that “ignorance of the law or a mistake of law is no defence to criminal prosecution.” See Cheek v. United States, 498 U.S. 192 (1991). There are exceptions to this rule, which are sometimes referred to as crimes of “specific intent.

“Specific intent crime. Crime in which defendant must not only intend the act charged but also intend to violate law. U.S. v. Birkenstock, C.A.Wis., 823 F.2d 1026, 1028. One in which a particular intent is a necessary element of the crime itself. Russell v. State, Fla.App., 373 So.2d 97, 98. See also Mens rea; Specific intent.”

SOURCE: Black’s Law Dictionary, Sixth Edition

For example, in the case of tax evasion under 26 U.S.C. §:

(a) subjective, where the court must be satisfied that the accused actually had the requisite mental element present in his or her mind at the relevant time (for purposely, knowingly, recklessly, etc) (see concurrence);

(b) objective, where the requisite mens rea element is imputed to the accused on the basis that a reasonable person would have had the mental element in the same circumstances (for negligence); or

(c) hybrid, where the test is both subjective and objective.

The court will have little difficulty in establishing mens rea if there is actual evidence—for instance, if the accused made an admissible admission. This would satisfy a subjective test. But a significant proportion of those accused of crimes make no such admissions. Hence, some degree of objectivity must be brought to bear as the basis upon which to impute the necessary component(s). It is always reasonable to assume that people of ordinary intelligence are aware of their physical surroundings and of the ordinary laws of cause and effect (see causation). Thus, when a person plans what to do and what not to do, he will understand the range of likely outcomes from given behaviour on a sliding scale from “inevitable” to “probable” to “possible” to “improbable”. The more an outcome shades towards the “inevitable” end of the scale, the more likely it is that the accused both foresaw and desired it, and, therefore, the safer it is to impute intention. If there is clear subjective evidence that the accused did not have foresight, but a reasonable person would have, the hybrid test may find criminal negligence. In terms of the burden of proof, the requirement is that a jury must have a high degree of certainty before convicting. It is this reasoning that justifies the defences of infancy and lack of mental capacity under the M’Naghten Rules and the various statutes defining mental illness as an excuse. Self-evidently, if there is an irrebuttable presumption of doli incapax—that is, that the accused did not have sufficient understanding of the nature and quality of his actions—then the requisite mens rea is absent, no matter what degree of probability might otherwise have been present. For these purposes, therefore, where the relevant statutes are silent and it is for the common law to form the basis of potential liability, the reasonable person must be endowed with the same intellectual and physical qualities as the accused, and the test must be whether an accused with these specific attributes would have had the requisite foresight and desire.

In English law, the Criminal Justice Act 1967 provides a statutory framework within which mens rea is assessed. It states:

A court or jury, in determining whether a person has committed an offence,

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Under s8(b), therefore, the jury is allowed a wide latitude in applying a hybrid test to impute intention or foresight (for the purposes of recklessness) on the basis of all the evidence.

The Relevance Of Motive

One of the mental components often raised in this issue is that of motive. If the accused admits to having a motive consistent with the elements of foresight and desire, this will add to the level of probability that the actual outcome was intended (it makes the prosecution case more credible). But if there is clear evidence that the accused had a different motive, this may decrease the probability that he or she desired the actual outcome. In such a situation, the motive may become subjective evidence that the accused did not intend but was reckless or willfully blind.

Motive cannot be a defence. If, for example, a person breaks into a laboratory used for the testing of pharmaceuticals on animals, the question of guilt is determined by the presence of an actus reus, i.e., entry without consent and damage to property, and a mens rea, i.e., intention to enter and cause the damage. The fact that the person might have had a clearly articulated political motive to protest such testing does not affect liability. If motive has any relevance, this may be addressed in the sentencing part of the trial, when the court considers what punishment, if any, is appropriate.

There are four possible states of mind recognised by British law:

Intention

A range of words are used to express intention in the various criminal laws. For the offence of murder, for example, the required level of mens rea is ‘malice aforethought’ which is interpreted as ‘intention to kill or cause grievous bodily harm’.

Effectively, a defendant intends a certain consequence if he foresees that it will occur if the given series of acts, or, in some cases, omissions, continue and he desires that it will happen.

Intention can, therefore, be either direct, where the defendant intends a particular consequence of their act, or oblique, where the defendant foresees the certainty of a consequence of their act even if it is not their main objective.

Recklessness

Recklessness (willful blindness in the U.S.) demonstrates less culpability than intention but more than negligence.

The modern definition of recklessness comes from R v. Cunningham [1957] and states that recklessness involves foreseeing the kind of harm that occurred and going ahead anyway. Cunningham’s recklessness is a subjective test since the jury needs to decide what the defendant was thinking.

In R v. Caldwell [1982], Lord Diplock decided that Cunningham’s recklessness was too narrow for the Criminal Damage Act of 1971. He widened it to also include the case where the defendant commits an act that creates a risk that is obvious to the ordinary person but not to the defendant. The definition of Caldwell recklessness has two limbs:

• The defendant does an act which creates a risk and he has recognised that there was some risk. This subjective test is known as the advertent limb.
• The defendant does an act that creates a risk that is obvious to other people but not obvious to the defendant. This objective test is known as the inadvertent limb.

In such cases, there is clear subjective evidence that the accused foresaw but did not desire the particular outcome. When the accused failed to stop the given behaviour, he took the risk of causing the given loss or damage. There is always some degree of intention subsumed within recklessness. During the course of the conduct, the accused foresees that he may be putting others at risk of injury. A choice must be made at that point in time. By deciding to proceed, the accused actually intends for the other to be exposed to the risk of that injury. The greater the probability of that risk maturing into the foreseen injury, the greater the degree of recklessness and, subsequently, the sentence rendered.

Negligence

The test for negligence in British law is an objective one; the jury must decide if the defendant has gone below the standards to be expected of a reasonable person. To do this, the defendant must have failed to exercise such care, skill or foresight as a reasonable person in the same situation would exercise. The characteristics of the particular defendant are not taken into account when considering negligence.

Transferred Malice

Transferred malice occurs when the intention to harm one individual inadvertently causes a second person to be hurt instead. Under British law, the individual causing the harm will be seen as having intended the harm caused through the transferred malice doctrine and so will be liable for their actions.

Does Mens Rea Require Motive?

Although, in the majority of cases, mens rea will require a person to intend to commit a certain action, there are exceptions to the rule. It is sometimes possible to commit a crime without intending to do so at all, or even while intending to commit a different crime. Under section 47 of the Offences Against the Person Act 1861, a person in England & Wales can be found guilty even if they were ‘reckless’ as to the effect of their actions. Someone is ‘reckless’ under English law if, following the ruling in the case of Metropolitan Police Commissioner v. Caldwell [1982], they are aware of the risks associated with an action but they choose to undertake that action nevertheless.

Desire as an Aspect of Mens Rea

Intention may be a secondary matter and still form part of the mens rea of a crime. For the crime of causing grievous bodily harm with intent, contrary to Section 18 of the Offences Against the Person Act 1861, a person must desire a certain outcome different from that which they set out to achieve through the guilty act itself; this is known as ‘ulterior intent’. In other words, the motive for the crime must be separate from the intent to commit the crime itself. There are two forms of ulterior intent’ possible in a section 18 offence: intent to cause grievous bodily harm and intent to resist or prevent an arrest. The motive for such a crime could, therefore, be to escape from the police, but the mens rea of the crime is intending (or being simply reckless about) causing grievous bodily harm while wishing to evade arrest.

Mens Rea and Negligence

Some crimes require no motive or intent whatsoever, but mens rea will still exist. In the case of crimes of negligence, it is not necessary to demonstrate that a person intended or even thought about the consequences of their actions in order to secure a conviction. The crime on manslaughter, for example, may be committed through the unintentional killing of another person. In the case referred to in Ford v Primrose (1824), a husband was accused of killing his wife through administering the wrong medicine; the implication in the Ford case was that her death had been the result of a mistake on his part. In such cases, the mens rea for the crime is simply being negligent while committing the act in question.

Is Mens Rea Always Required?

There is one part of the criminal law where mens rea is not required at all. In strict liability crimes, the only requirement for conviction is that a person can be proved to have committed an act or a failure to act; the motive or intention of the defendant is ignored unless it forms part of their defence. Road traffic crimes, such as speeding or failure to display a tax disc, rely heavily on strict liability laws to ensure swift application of justice.

What is the Effect of Mens Rea?

Mens rea is a necessary part of the majority of crimes and indeed, the idea of ‘no crime without a guilty mind’ is one of the foundations of the common law legal system. It is the ‘fault element’ of the majority of crimes and its continued use ensures that no-one can be punished unless they are proved in court to be at fault for the crime in question.

The limiting of strict liability laws to situations where it is not only infeasible to require negligence or malice aforethought, or where it would often be impossible to establish such, helps strengthen the law by minimising the chance of convicting for a pure accident or unintended transgression and thus maintaining the principle of punishment only where guilt is truly evident.

Sources:

• Herring, J. (2008). Criminal Law: Text, Cases and Materials (Oxford: OUP)
• Elliott, K., & Quinn, F. (2008). Criminal Law (Longman)
• Allen, M. (2007). Textbook on Criminal Law (Oxford: OUP)

Mens Rea Under The American Law Institute Model Penal Code

Prior to the 1960s, mens rea in the United States was a very slippery, vague and confused concept. Since then, the formulation of mens rea set forth in the Model Penal Code has been highly influential throughout North America in clarifying the discussion of the different levels of mens rea.

The four levels of mens rea set forth in the MPC are:

1. Purposely: express purpose to commit a specific crime against a particular person; for example, to shoot an arrow at someone and hit him.
2. Knowingly: knowledge that one’s actions would certainly result in a crime against someone butthat one did not specifically intend to commit that crime against the particular victim which one is accused of injuring; for example, to shoot an arrow at A but hit B. This also covers the concept of willful blindness. Willful blindness is when a person knows that something is very probable but avoids investigating to gain that knowledge. Often used against drug mules who knew (or should have known) that it was highly likely that they were driving vehicles that carried contraband but refused to look.
3. Recklessly: knowledge that one’s actions had an unjustifiable risk of leading to a certain result but did not care about that risk (“reckless disregard”) and acted anyway; for example, to shoot an arrow in the air in a crowded place. Under the MPC, barring contradictory statutory language, recklessness is the minimum mens rea that will lead to criminal liability. This covers the “depraved-heart” state of mens rea, which is an extreme disregard for human life. Examples include playing Russian Roulette, street racing, and other highly dangerous activities.
4. Negligently: did not intend to cause the result that happened but failed to exercise a reasonable duty of care to prevent that result (which includes failing to become aware of the risk of that result.) The above is the tort standard of negligence. In general, this is not enough for criminal liability. Criminal negligence is a “gross deviation” from the standards of normal conduct and includes a substantial and unjustifiable risk. For example, one might be negligent for failing to put up a fence to keep children away from their pool. This will not lead to criminal charges. Criminal negligence might include keeping a vicious dog tied to a tree with twine.

Some commentators add on a fifth, uncodified, level that exists in practice if not in the idealised Model Penal Code, which is, after all, merely a guide for states to follow in the development of their own criminal code. It should be kept in mind that the MPC is, in and of itself, not the law of the land anywhere, though many states have followed it to some degree or another.

5. Strict liability: Strict liability is usually for “public welfare” offences, like parking tickets, environmental regulations, and other such things. §. For instance, statutory rape is a strict liability crime in some North American jurisdictions. Therefore, even if the defendant believed the child to be over the age of consent, the defendant is still guilty of statutory rape if the child is underage, even if the child lied about his or her age.

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 9th April, 2024.