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Mens Rea I

Updated on July 28, 2017

It is a long established principle of criminal law that no crime can be committed without an evil mind and therefore the mental element or the state of the mind, at the time the crime was committed, becomes crucial when determining if an offender is guilty or otherwise.

This mental element is commonly known as Mens Rea and it is derived from the Latin phrase “actus reus non facit reum nisi mens sit rea” which simply means that the act is not culpable (deserving blame) unless the mind is guilty. There are however certain exceptions for example when a crime occurs as a result of negligence.

Criminal law as we know it came into existence as a result of actions committed as acts of vengeance or it is the cumulative result of acts committed as retaliatory actions for injuries, physical or otherwise, suffered or incurred, because of long standing enmities or a desire to seek revenge or to acquire some form of satisfaction or gratification for loss that has resulted from the actions of another.

The most common motives for homicides to date include revenge, jealousy and cheating spouses/partners. Homicides are more often than not, due to feelings or emotions that are prompted by actions that anger the offender or make him or her feel publicly humiliated and actions that, in the case of the offender, are perceived to be deep-seated injuries that fester over time.

These are obviously factors that can be overcome or addressed with proper treatment, be it medical or psychological, provided that the symptoms are indentified in time.

Therefore if you’re someone who has been aggrieved in some way or other, it is important that you seek some sort of remedial advice or therapy, as soon as possible.

It is crucial that we realize who the initial victim was and address the matter before we allow it to deteriorate or degenerate into a situation where the victim becomes the aggressor especially in cases of revenge or in cases of ex-partners and ex-spouses. Criminal law in itself evolved around this type of situations, so don’t throw you life away because of someone else’s actions.

The earliest criminal law cases assigned guilt to anyone who committed the act by virtue of him or her being the owner of the instrument that caused death, harm or injury. Therefore if a person owned a gun and fired off a shot, and that shot killed someone, than he or she was guilty by virtue of owning the gun, regardless of whether it was done innocently or otherwise.

Likewise if someone owned a bull that trampled on another person and caused death or serious injury than the owner of the bull was guilty regardless of whether that person had trespassed on private property or otherwise. In the same manner, someone who had merely attempted a crime, but had not succeeded, was not liable because there was no crime attributed to him or her.

The only type of killing that was allowed was that which was done in the name of the king or the crown and all other acts of killing whether accidental or otherwise were deemed to be a crime despite the lack of criminal intent including acts of self defense.

There were attempts in certain jurisdictions however to allow the offender to pay-off his or her crime as opposed to being punished, and this was basically done to negate the element of revenge or counter the element of vindictiveness.

If for example there was no intention to kill, than insisting that the offender is punished in a specific way, would simply continue or prologue the cycle of action and retaliation which would be, in the long run counterproductive and detrimental to all parties concerned.

The mental element came into the picture somewhere in the 12th century and it made a somewhat piecemeal entry. Self-defense for example was still a crime but it was pardonable by the sovereign and that indicates that the law had slowly started to place more emphasis on the mental element.

It was only towards the end of the 12th century, when Roman Law swept across Europe like a tidal wave, that the concept of Mens Rea, really began to take shape and it allowed offenders to present their defense and punishment was based on a trial. Trials were often adversarial i.e. both parties would present their case in front of a judge who’d act as a mediator.

“It was for the good of the whole world that one race stood apart from its neighbors, turned away its eyes at an early time from the fascinating pages of the Corpus Juris, and more Roman than the Romanists, made the grand experiment of a new formulary system” – F.W. Maitland, English Legal Historian.

It was, in truth, the advent of Canon Law or Church Law, which insisted that the interpretation of any sin required a mental element as well as a physical element that made the mental element a crucial component in establishing guilt.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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