Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of some crimes. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act is not culpable unless the mind is guilty". Thus, in jurisdictions with due process, there must be an actus reus, or "guilty act," accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault. The exception is strict liability crimes. 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. However, if a tort is intentionally committed or a contract is intentionally breached, such intent may increase the scope of liability as well as the measure of damages payable to the plaintiff. Therefore, mens rea refers to the mental element of the offence that accompanies the actus reus. In some jurisdictions, the terms mens rea and actus reus have been replaced by alternative terminology. In Australia, for example, the elements of the federal offences are now designated as "fault elements" or "mental elements" (mens rea) and "physical elements" or "external elements" (actus reus). This terminology was adopted to replace the obscurity of the Latin terms with simple and accurate phrasing. Levels of mens rea[edit source | editbeta]
Under the traditional common law, the guilt or innocence of a person relied upon whether he had committed the crime (actus reus), and whether he intended to commit the crime (mens rea). However, many modern penal codes have created levels of mens rea called modes of culpability, which depend on the surrounding elements of the crime: the conduct, the circumstances, and the result, or what the Model Penal Code calls CAR (conduct, attendant circumstances, result). The definition of a crime is thus constructed using only these elements rather than the colorful language of mens rea: Murder is the unlawful killing of a human being with malice aforethought. —18 U.S.C. §1111 (traditional common law)
A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual —portion of Texas Penal Code ch. 19 §19.02 (modern offense element) The traditional common law definitions and the modern definitions approach the crime from different angles. In the traditional common law approach, the definition includes: 1.
actus reus: unlawful killing of a human being;
mens rea: malice aforethought.
Modern law approaches the analysis somewhat differently. Homicide is a "results" crime in that it forbids any "intentional" or "knowing" conduct that results in the death of another human being. "Intentional" in this sense means the actor possessed a "purpose" or "desire" that his or her objective (i.e. death of another human being) be achieved. "Knowing" means that the actor was aware or practically certain that the death would result. Thus, the actus reus and mens rea of homicide in a modern criminal statute can be considered as follows: 1.
actus reus: any conduct resulting in the death of another individual; 2.
mens rea: intent or knowledge that the conduct would result in the death. In the modern approach, the attendant circumstances tend to replace the traditional mens rea, indicating the level of culpability as well as other circumstances. For example, the crime of theft of government property would include as an attendant circumstance that the property belong to the government. Modes of culpability[edit source | editbeta]
The levels of mens rea and the distinction between them vary between jurisdictions. Although common law originated from England, the common law of each jurisdiction with regard to culpability varies as...
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