Usually a person can’t be found guilty of a criminal offense unless both actus reus (guilty act) and mens rea (guilty mind) are present. We covered actus reus in a previous article, and now we will go on to look at just what mens rea is all about. Some UK case law is referred to, but the ideas discussed are common to most western legal systems.

The mens rea that that is required for a guilty act to be elevated to a criminal offense varies from crime to crime, but there are four basic states of mind that taken separately, or together, are considered sufficient for guilt: intention, recklessness, negligence and blameless inadvertence.

When we talk of intention it is important to point out that this is quite different from motive – motive alone is not sufficient to demonstrate guilt. There are two forms of intent: direct and oblique. Direct intent is where the guilty party wants to bring about the guilty act and makes efforts to do so. In the case of oblique intent, the party can foresee the consequence of his actions, and may not actually want the consequence to unfold, but continues anyway. Oblique intent is only in effect in the instance that the defendant can foresee the consequences as virtually certain, where they are merely probably this is considered recklessness rather than intent.

The case of Moloney (1985) shows just how tricky it can be to prove intent. The defendant and his stepfather had a race to see who could load their gun the most quickly. The defendant won and his stepfather asked him to take aim and shoot him, and the stepson obliged him by so doing! In the appeal to the case the stepson was found guilty of manslaughter rather than murder because whether he realized that the natural consequences of his actions was death could not be established.

The taking of an unjustified risk, recklessness, is used to prove a guilty mind, and there are various factors to consider as to whether an act is reckless such as the likelihood of the consequence, how easy it would be to take precautions, and how socially useful it is.

The definition of recklessness is where the risk of a consequence occurring would be obvious to an ordinary, prudent, sober person even though the defendant gave no thought to it. Some criminal offenses that are based on this definition of recklessness are criminal damage and reckless driving.

However, if a defendant can show that he did consider that the action might be risky, but determined that it was not, this may be considered a mitigating factor. But this so called “loophole” is rarely successful.

If you fall below the standard of the ordinary, reasonable man, you may be found negligent. If you do something that the reasonable man would not, or indeed don’t do something that he would, then this negligence will be used to demonstrate men rea. Negligence alone is not usually enough to demonstrate a guilty mind, however, gross negligence is a sufficient condition for manslaughter.

If the defendant does not realize that a crime could occur and no reasonable person would realize it either then he is blamelessly inadvertent. However, if it is a crime of strict liability you can still be found guilty in this state of mind.

If you have the intent to commit an offense, but the consequence of your actions impacts a different victim, or has an unintended effect that is also negative, then this actus reus and mens rea combination can still be sufficient to find a defendant guilty of a criminal offense. A good example in case law is that of Latimer which dates back to 1886: the defendant tried to strike one person with his belt, but it bounced off and hit someone else. Because he transferred his intent he was found guilty. A more disturbing case is that of Attorney General’s Reference No.3 (1994) where a boyfriend stabbed his pregnant girlfriend, and was found guilty of murdering the baby when it later died.

In the US criminal justice system there must be a coincidence in time between actus reus and mens rea. This can be proved in one of two ways: to consider actus reus an ongoing act that mens rea later coincides with, or to consider a series of acts as one transaction.

An Ongoing Act

In Kaitamaki (1984) the defendant was found guilty of rape since once he had penetrated (actus reus) he then established the victim was unwilling, but did not withdraw and thus mens rea was present.

A Single Transaction

In Church (1966) the defendant disposed of someone he thought he had killed. In fact the victim died only once dumped in a canal. Despite the fact that the defendant did not intend to kill via the canal dumping these events were considered a single transaction.