Mens rea

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Mens rea is the mental state of a criminal defendant. In Latin it means "guilty mind". Usually there are four levels of mens rea in crimes, in descending order of culpability:

  1. intent
  2. knowledge
  3. recklessness
  4. negligence

The trend in trials and in legislation has been to weaken the requirement of proof of mens rea. A utilitarian view of justice does not depend on mens rea, while a moral view of justice does. Mens rea usually combined with actus reus is used to produce criminal liability. Very often the seriousness of an offence will vary depending on the level of mens rea. The most obvious example of this is in homicide where intent is generally required (with some limited exceptions) for murder, where as negligence is often sufficient for manslaughter.

William Blackstone famously observed, “in order to have a crime, there must be a vicious will.”[1] However, in the modern regulatory state there are increasing attempts, particularly at the federal level, to create crimes that do not require proof of mens rea (often referred to as strict liability offences).

The difference between recklessness and negligence

A person is considered reckless if, in the circumstances, it is considered that they were aware of a risk of their behaviour, but proceeded anyway. Negligence however, accrues merely when you owe a duty of care to someone but through a mistake or inaction breach this duty. There is an actual knowledge component required with recklessness that is not present with negligence (or as it is commonly referred to in criminal law carelessness). An offence of reckless driving for example is much more serious than one of careless driving. In order to prove carelessness it is sufficient to prove a mistake, recklessness on the other hand requires an actual knowledge of the negative potential consequences of an action, but still taking that action.

Illustration of the four mental states

-You are an "atheist." That is, you know that God exists, and you are aware of His will, but you decide to follow Satan's will instead. God forbids certain acts, but you decide to do those acts precisely because they are against God's will. You are intentionally culpable. Nevertheless, Jesus died for your sins, and it is not too late to repent, as long as you do so before you die.

-You have been raised in God's church, but you claim to be an "agnostic." Even though you know that God forbids your acts, you do them anyway. You are knowingly culpable. Nevertheless, Jesus died for your sins, and it is not too late to repent, as long as you do so before you die.

-You are a good Christian. Someone tells you your acts are OK. You suspect God does not approve, but instead of consulting with your Pastor, you do it anyway. Suppose you have not actually heard your pastor make it clear that what you are doing is forbidden, and you ignore your conscience screaming at you to stop doing it every time you do it. You were reckless, because you should have known better than to do what you kept doing, over and over. Nevertheless, Jesus died for your sins, and it is not too late too repent, as long as you do so before you die.

-You committed acts that God forbade. You should have been a Christian, and you should not have done what you did. Better to realize that nevertheless, Jesus died for your sins, and it is not too late to repent, as long as you do so before you die.

Even negligence suffices to separate one from God eternally, and thereby give up the internal salvation offered to each of us by Christ.


References

  1. William Blackstone, Commentaries 21.