Mens rea

In criminal law, mens rea (/ˈmɛnz ˈreɪə/; Law Latin for "guilty mind"^[1]) is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of mens rea and actus reus ("guilty act") before the defendant can be found guilty.

Introduction

The standard common law test of criminal liability is expressed in the Latin phrase actus reus non facit reum nisi mens sit rea,^[2] i.e. "the act is not culpable unless the mind is guilty".^[3][4] As a general rule, someone who acted without mental fault is not liable in criminal law.^[5][6] Exceptions are known as strict liability crimes.^[7][8][9] Moreover, when a person intends a harm, but as a result of bad aim or other cause the intent is transferred from an intended victim to an unintended victim, the case is considered to be a matter of transferred intent.^{[10]: 63–64 [11]}

The types of mental states that apply to crimes vary depending on whether a jurisdiction follows criminal law under the common law tradition or, within the United States, according to the Model Penal Code.^[12]

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. But if a tort is intentionally committed or a contract is intentionally breached, such intent may increase the scope of liability and the damages payable to the plaintiff.

In some jurisdictions, the terms mens rea and actus reus have been replaced by alternative terminology.^{[13]: 95 [14]: 84}

Levels of mens rea within the United States

Under the tradition of common law, judges would often require a "bad state of mind" in addition to an action or omission (actus reus) to find a criminal guilty.^[15][16][17] Over time, culpable mental states (mens rea) became varied among different types of crimes.^[15] Such crimes and mental states might include, for example, "malice" for murder, "fraudulence" for fraud, "willfulness and corruption" for perjury, and so on.^[15] The crime of manslaughter, further, might not even require a "bad mind" but simply a "negligent" one.^[15] Regardless of how the requirements are categorized, the Supreme Court has explained mens rea requirements for crimes are "universal" and essential to "mature systems of law", even going so far as to say that this belief undergirds notions of free will and morality.^[18]

Within the United States, there is no single encompassing criminal law. Criminal laws are passed and enforced by the states‚ or the federal government, but each of these criminal "codes" vary and may or may not draw from the same theoretical sources.^[19]

State criminal law

The vast majority of criminal prosecutions in the United States are carried out by the several states in accordance with the laws of the state in question. Historically, the states (with the partial exception of civil-law Louisiana) applied common law rules of mens rea similar to those extant in England, but over time American understandings of common law mens rea terms diverged from those of English law and from each other. Concepts like "general intent" and "specific intent" dominated classifications of mental states in state common law,^[20][21][22] but by the late 1950s to early 1960s, the common law of mens rea was widely acknowledged to be a slippery, vague, and confused mess.^[23][24] This was one of several factors that led to the development of the Model Penal Code.^[25] Nevertheless, states continue to use mental states beyond or besides those listed in the Model Penal Code.^{[26][27][28][29]}

Federal criminal law

Since the federal government of the United States does not have a generalized police power like that of the states, the scope of its criminal statutes is necessarily circumscribed.^[30] Ordinary prosecutions are the province of the states, and only crimes connected to the constitutional powers may be pursued by the federal government.^[31] Nevertheless, the Supreme Court holds that required mens rea is an essential element of federal criminal offenses.^[32][33] Consequently, Title 18 of the United States Code does not use the aforementioned culpability scheme but relies instead on more traditional definitions of crimes taken from common law.^[34] For example, malice aforethought is used as a requirement for committing capital murder,^[35][36] and the Supreme Court has applied mental states such as "willfully."^[37][38]

Model Penal Code

Because the landscape of criminal law varied from state to state, the American Law Institute (which issues "restatements" of American legal jurisprudence) declined to issue a restatement of criminal law in favor of a "model" code for states to issue new, standardized criminal law.^[39] This Model Penal Code ("MPC") was completed in 1962, and received praise from legal scholars for its reformulation of criminal law.^[40][41] Although not all states follow the criminal law as constructed within the MPC, over 34 states had adopted part or substantially all of the MPC as law by 1983.^[40] The federal government has not adopted the MPC, although it has attempted to do so for many decades.^[39]

Since its publication, the formulation of mens rea set forth in the Model Penal Code has been highly influential throughout the United States in clarifying the discussion of the different modes of culpability.^[23][39] The following levels of mens rea are found in the MPC §2.02(2),^{[42][43]: 60–62} and are considered by the United States Supreme Court to be the four states of mind that give rise to criminal liability:^[44]

• Negligently: a "reasonable person" ought to be aware of a "substantial and unjustifiable risk" that is a "gross deviation" from a normal standard of care.^[45]
• Recklessly: the actor "consciously disregards a substantial and unjustifiable risk" in "gross deviation" from a normal standard of care.^[45]
• Knowingly: the actor is "practically certain" that his conduct will lead to the result,^[46] or is aware to a high probability that his conduct is of a prohibited nature, or is aware to a high probability that the attendant circumstances exist.
• Purposefully: the actor consciously engages in conduct and "desires" the result. The Supreme Court has not found a large difference between purposeful and knowing conduct, not only in theory but also in application.^[46]

The above mental states also work in a hierarchy, with negligence as the lowest mental state and purposefully as the highest: a finding of purposefully/intentional establishes a state of knowingness, recklessness, and negligence; a finding of knowingness establishes a finding of recklessness and negligence, and a finding of recklessness establishes a state of negligence.^[43](5)[47]

The MPC also recognizes culpability not because of a mental state, but for crimes that are legislatively proscribed due to the imposition of "absolute liability."^[48] Strict liability crimes will require evidence of such legislative intent, and courts seriously examine such evidence before assuming a crime permits strict liability rather than a mens rea.^[49]

• Strict liability: the actor engaged in conduct and his mental state is irrelevant.^[50] This mens rea may only be applied where the forbidden conduct is a mere violation, i.e. a civil infraction.

Differences between common law crimes and MPC crimes

The elements constituting a crime vary between codes that draw on common law principles and those that draw from the Model Penal Code. For example, the mens rea required of murder in federal law under the United States Code is distinct from the mens rea of murder under the Texas Penal Code (which adopted the Model Penal Code in 1974^[40][39]):

18 U.S.C. §1111^[35]	Texas Penal Code §19.02^[51]
Murder is the unlawful killing of a human being with malice aforethought.	A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual.

In the common law approach as under 18 U.S.C. §1111, the definition of murder includes an actus reus (the unlawful killing of a human being) and a common law mens rea: malice aforethought. Modern criminal law approaches the analysis somewhat differently. Using a framework from the American Law Institute's Model Penal Code, homicide is a "results" offense in that it forbids any "purposeful" or "knowing" conduct that causes, and therefore results in, the death of another human being. "Purposeful" in this sense means the actor possessed a conscious purpose or objective that the result (i.e. the death of another human being) be achieved. "Knowing" means that the actor was aware or practically certain that a death would result, but had no purpose or desire for it to occur. By contrast with traditional common law, the Model Penal Code specifically distinguishes purpose and knowledge to avoid confusion regarding "intent" elements.^[52] Many states still adhere to older terminology, relying on the terms "intentional" to cover both types of mens rea: "purposeful" and "knowing".^[53]

Limits and criticisms of MPC mens rea

Not all states have adopted the MPC, and for states that have, application of the Model Code varies.^[54] Despite its attempt to standardize criminal law, this variance has resulted in confusion and criticism. Some scholars have criticized the levels of culpability in the current Model Penal Code as insufficient or needing revision.^[55][56] Scholars' allegations include incoherency from conflicted philosophical commitments,^[57] or the federal governments' failure to explicitly adopt the Model Penal Code resulting in departure from common law precedents.^[58] Since the publication of the MPC, confusion has also occurred where norms towards crimes have also changed: especially regarding sexual crimes, hate crimes, drug crimes, and digital crimes.^[59] But while some scholarship argues that commitment to reforms gave way to "cynicism and fatigue,"^[59] others argue the original commitment of the MPC to "imprisonment as a last result" should be preserved in potential revisions to the Code and criminal law.^[60]

Rather than dwell on philosophical or normative arguments, some scholars have looked to evidence-based arguments to update the Code. In an empirical study, participants were presented with scenarios and asked to rate how deserving of punishment the scenario was.^[61] The results showed that participants' judgments matched up with the hierarchy of mens rea in the MPC, but also found that participants struggled most with "recklessness" scenarios. As a result, the study suggests revising the language of the categories.

Modes of culpability outside the United States

The levels of mens rea and the distinction between them vary among jurisdictions. Although common law originated from England, the common law of each jurisdiction with regard to culpability varies as precedents and statutes vary.

England and Wales

• Direct intention: the actor has a clear foresight of the consequences of his actions, and desires those consequences to occur. It is his aim or purpose to achieve this consequence.
• Oblique intention: the result is a virtually certain consequence or a 'virtual certainty' of the defendant's actions, and that the defendant appreciates that such was the case.
• Knowingly: the actor knows, or should know, that the results of his conduct are reasonably certain to occur.
• Recklessness: the actor foresees that particular consequences may occur and proceeds with the given conduct, not caring whether those consequences actually occur or not.
• Criminal negligence: the actor 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.

Scotland

• Intention: the accused willingly committed a criminal act entirely aware of his actions and their consequences. Necessary for murder and for assault.
• Recklessness: the accused was aware the criminal act could be potentially dangerous but did not give a second thought to its consequences, for example, involuntary culpable homicide.

Canada

The Supreme Court of Canada has found that the Canadian Charter of Rights and Freedoms guarantees a minimum requirement for the mental state of various crimes. For example, the crime of murder must include a mental requirement of at least subjective foresight of death. For crimes where imprisonment is a sanction, there is a requirement of at least a defence of due diligence.

Australia

Mens rea needs to be proved by prosecution from offence to offence. If it is a common law offence, mens rea is found out by relevant precedent (DPP v Morgan [1976] AC 182). Where the offence is in legislation, the requisite mens rea is found by interpreting the intention of the legislation. They must intend to commit the full offence.

India

Mens Rea in the Indian Penal Code 1860 sets out the definition of offences, the general conditions of liability, the conditions of exemptions from liability and punishments for the respective offences. Legislatures had not used the common law doctrine of mens rea in defining these crimes. However, they preferred to import it by using different terms indicating the required evil intent or mens rea as an essence of a particular offence.

Guilt in respect to almost all offences created under the IPC is fastened either on the ground of intention, knowledge or reason to believe. Almost all the offences under the IPC are qualified by one or other words such as 'wrongful gain or loss', 'dishonesty', 'fraudulently', 'reason to believe', 'criminal knowledge or intention', 'intentional cooperation', 'voluntarily', 'malignantly', 'wantonly', 'maliciously'. All these words indicate the blameworthy mental condition required at the time of commission of the offence, nowhere found in the IPC, its essence is reflected in almost all the provisions of the Indian Penal Code 1860. Every offence created under the IPC virtually imports the idea of criminal intent or mens rea in some form or other.

Islamic law

In Islamic law, intention (niyya) is a criterion for determining whether a criminal act is punishable or pardonable, or whether the penalty for such a crime is predetermined (ḥadd) or discretionary (taʿzīr). The offender cannot be found guilty until their intention in committing the crime has been taken into consideration.^[62]

Ignorance of law contrasted with mens rea

The general rule under common law and statutory law is that ignorance of the law or a mistake of law is no defense to criminal prosecution. However, in some cases, courts have held that if knowledge of a law, or if intent to break a law, is a material element of an offense, then a defendant may use good faith ignorance as a defense.^[63]

In the 1991 US Supreme Court opinion for Cheek v. United States,^[64] Byron White wrote:

The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. [...] Thus, the Court almost 60 years ago interpreted the statutory term "willfully" as used in the federal criminal tax statutes as carving out an exception to the traditional rule. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws.

Crimes like tax evasion are specific intent crimes and require intent to violate the law as an element of the offense. In R v. Klundert, for example, the Ontario Court of Appeal found as follows:

[55] Section 239(1)(d) is part of an Act which is necessarily and notoriously complex. It is subject to ongoing revision. No lay person is expected to know all the complexities of the tax laws. It is accepted that people will act on the advice of professionals and that the advice will often turn on the meanings to be given to provisions in the Act that are open to various interpretations. Furthermore, it is accepted that one may legitimately structure one's affairs so as to minimize tax liability. Considered in this legislative context, I have no difficulty in holding that a mistake or ignorance as to one's liability to pay tax under the Act may negate the fault requirement in the provision, regardless of whether it is a factual mistake, a legal mistake, or a combination of both.

A good-faith belief that a law is unjust or unconstitutional is no excuse, but "reasonable reliance upon an official statement of law, afterward determined to be invalid or erroneous" does not constitute a criminal act.

In the United States, a law must be reasonably clear; it must be worded so that a reasonable layman can comprehend the specific prohibited acts. Otherwise, the law may be unconstitutional pursuant to the vagueness doctrine.

Subjective and objective tests

A hybrid test for the existence of mens rea is as follows:^{[65]: 876–877}

1. 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);
2. 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
3. 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 makes no such admission. Hence, some degree of objectivity must be brought to bear as the basis upon which to impute the necessary components. 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, they 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, defined as "beyond a reasonable doubt" in the United States and "sure" in the United Kingdom. It is this reasoning that justifies the defenses of infancy, and of lack of mental capacity under the M'Naghten Rules, an alternate common law rule (e.g., Durham rule), and one of various statutes defining mental illness as an excuse. Moreover, 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, s. 8 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 offense,

• (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 s. 8(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.

Relevance of motive

One of the mental components often raised in 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 normally be a defense. 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. 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.

Rarely, a motive may amount to a defence if it is specifically allowed in law,^[66] or is protected as a right (for example, if a conviction for crimes committed during a protest would unduly interfere with free speech rights; see DPP v Ziegler).

Recklessness (United States: "willful blindness")

Main articles: Recklessness (law) and Willful blindness

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 behavior, he took the risk of causing the given loss or damage. There is always some degree of intention subsumed within recklessness.^{[67]: 257 [68]: 81} During the course of the conduct, the accused foresees that he may be putting another at risk of injury: A choice must be made at that point in time. By deciding to proceed, the accused actually intends 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, sentence rendered. In common law, for example, an unlawful homicide committed recklessly would ordinarily constitute the crime of involuntary manslaughter. One committed with "extreme" or "gross" recklessness as to human life would constitute murder, sometimes defined as "depraved heart" or "abandoned and malignant heart" or "depraved indifference" murder.^[69]: 82

Criminal negligence

Main article: Criminal negligence

Here, the test is both subjective and objective. There is credible subjective evidence that the particular accused neither foresaw nor desired the particular outcome, thus potentially excluding both intention and recklessness. But a reasonable person with the same abilities and skills as the accused would have foreseen and taken precautions to prevent the loss and damage being sustained. Only a small percentage of offences are defined with this mens rea requirement. Most legislatures prefer to base liability on either intention or recklessness and, faced with the need to establish recklessness as the default mens rea for guilt, those practising in most legal systems rely heavily on objective tests to establish the minimum requirement of foresight for recklessness.

See also

• Animus nocendi
• Command responsibility
• Henry de Bracton
• Morissette v. United States (1952)
• Flores-Figueroa v. United States (2009)
• Voluntas necandi

References

1. MENS REA, Black's Law Dictionary (11th ed. 2019)
2. 1 Subst. Crim. L. § 5.1(a) (3d ed.)
3. Lanius, D., Strategic Indeterminacy in the Law (Oxford: Oxford University Press, 2019), p. 113.
4. "By the time of Coke, the maxim 'actus non facit reum nisi mens sit rea' (an act does not make one guilty unless his mind is guilty) had become well ingrained in the common law, and it remains a central precept of Anglo-American criminal law today." Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 Utah L. Rev. 635, 636 (1993)
5. ". . . a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense." Model Penal Code § 2.02(1)
6. "A crime ordinarily is not committed if the mind of the person doing the act is innocent." 21 Am. Jur. 2d Criminal Law § 112
7. 21 Am. Jur. 2d Criminal Law § 127
8. "Strict liability crimes are the exception and not the rule." 21 Am. Jur. 2d Criminal Law § 130
9. § 5.5. Strict liability, 1 Subst. Crim. L. § 5.5 (3d ed.)
10. Hall, D. E., Criminal Law and Procedure (Boston: Cengage Learning, 2015), pp. 63–64.
11. "Under the common-law doctrine of 'transferred intent,' if an accused attempts to injure one person and an unintended victim is injured because of the act, the accused's intent to injure the intended victim is transferred to the injury of the unintended victim, even though the wounding was accidental or unintentional." 21 Am. Jur. 2d Criminal Law § 115
12. § 5.1(a) Common law and statutory crimes, 1 Subst. Crim. L. § 5.1(a) (3d ed.)
13. Child, J., & Ormerod, D., Smith, Hogan, and Ormerod's Essentials of Criminal Law, 2nd ed., (Oxford: Oxford University Press, 2015), p. 95.
14. Child, J., & Ormerod, D., Smith, Hogan, and Ormerod's Essentials of Criminal Law,, 3rd ed., 2019, p. 84.
15. 1 Subst. Crim. L. § 5.1(a) (3d ed.)
16. "[T]he mental state element that is part of the definition of most criminal offenses, is crucial to culpability and central to our value as moral beings." Stephen J. Morse, Inevitable Mens Rea, 27 Harv. J.L. & Pub. Pol'y 51, 51–52 (2003).
17. "The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Smith v. People of the State of California, 361 U.S. 147, 150, 80 S. Ct. 215, 217 (1959)
18. "As this Court has explained, the understanding that an injury is criminal only if inflicted knowingly 'is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.'" Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019) (citing Morissette, 342 U.S. at 250).
19. Markus Dubber, "The American Law Institute's Model Penal Code and European Criminal Law" in André Klip ed., Substantive Criminal Law of the European Union (Maklu, 2011), at 2.
20. "Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses", Michael A. Foster, June 30, 2021, Congressional Research Service, R46836, p.4, https://crsreports.congress.gov/product/pdf/R/R46836/1
21. INTENT, Black's Law Dictionary (11th ed. 2019)
22. "Much of the existing uncertainty as to the precise meaning of the word 'intent' is attributable to the fact that courts have often used such phrases as 'criminal intent,' 'general intent,' 'specific intent,' 'constructive intent,' and 'presumed intent.' 'Criminal intent,' for example, is often taken to be synonymous with mens rea, the general notion that except for strict liability offenses some form of mental state is a prerequisite to guilt." § 5.2(e) 'Criminal,' 'constructive,' 'general,' and 'specific' intent, 1 Subst. Crim. L. § 5.2(e) (3d ed.)
23. Dubber (2002), pp. 60–80.
24. "Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses", Michael A. Foster, June 30, 2021, Congressional Research Service, R46836, p.3, https://crsreports.congress.gov/product/pdf/R/R46836/1
25. United States v. Bailey, 444 U.S. 394, 403–04 (1980) ("At common law, crimes generally were classified as requiring either "general intent" or "specific intent." This venerable distinction, however, has been the source of a good deal of confusion. . . . This ambiguity has led to a movement away from the traditional dichotomy of intent and toward an alternative analysis of mens rea. See id., at 202. This new approach, exemplified in the American Law Institute's Model Penal Code . . .")
26. "In Commonwealth v. Webster, Shaw, C.J. described malice as a state of mind which includes not only anger, hatred and revenge, but every other unlawful motive." § 106. Malice, 32 Mass. Prac., Criminal Law § 106 (3d ed.)
27. "In criminal law, mental states run from bad to worse roughly in order of negligence, recklessness, knowledge, and purpose, with willfulness, maliciousness, and similar adjunct mental states interspersed at various levels in that hierarchy." 17 Cal. Jur. 3d Criminal Law: Core Aspects § 129
28. The Penal Law provides that when the commission of an offense, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms "intentionally," "knowingly," "recklessly," or "criminal negligence," or by use of terms, such as "with intent to defraud" and "knowing it to be false," describing a specific kind of intent or knowledge. 35 N.Y. Jur. 2d Criminal Law: Principles and Offenses § 26 (specifying "intentionally" as a state opposed to "purposefully" and including mental states like "fraud")
29. 26 Ohio Jur. 3d Criminal Law: Procedure § 886 (categorizing mens rea according to general and specific intent)
30. United States v. Lopez, 514 U.S. 549 (1995).
31. "In our federal system, 'Congress cannot punish felonies generally,' Cohens v. Virginia, 6 Wheat. 264, 428, 5 L.Ed. 257 (1821); it may enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce. As a result, most federal offenses include, in addition to substantive elements, a jurisdictional one." Torres v. Lynch, 578 U.S. 452, 457 (2016).
32. In determining Congress' intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding "each of the statutory elements that criminalize otherwise innocent conduct." Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019).
33. ". . . we must construe the statute in light of the background rules of the common law . . . in which the requirement of some mens rea for a crime is firmly embedded." Staples v. United States, 511 U.S. 600, 605, 114 S. Ct. 1793, 1797, 128 L. Ed. 2d 608 (1994)
34. "Office of the Law Revision Counsel, United States Code".
35. "18 USC §1111: Murder".
36. Dubber (2002), p. 55.
37. Dixon v. United States, 548 U.S. 1, 5 (2006)
38. Bryan v. United States, 524 U.S. 184, 192 (1998).
39. Robinson, Paul; Dubber, Markus (2007-07-27). "The American Model Penal Code: A Brief Overview". New Criminal Law Review. 10 (3): 319–341. doi:10.1525/nclr.2007.10.3.319. hdl:1807/87911.
40. American Law Institute. Model Penal Code. "Forward."
41. "As all criminal law scholars understand, the Model Penal Code is one of the great intellectual accomplishments of American legal scholarship of the mid-twentieth century." Gerard E. Lynch, Revising the Model Penal Code: Keeping It Real, 1 Ohio St. J. Crim. L. 219 (2003)
42. Blond, N. C., Criminal Law (Alphen aan den Rijn: Wolters Kluwer, 2007), pp. 60–62.
43. ". . . a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense." Model Penal Code § 2.02(1)
44. "We begin by setting out four states of mind, as described in modern statutes and cases, that may give rise to criminal liability. Those mental states are, in descending order of culpability: purpose, knowledge, recklessness, and negligence." Borden v. United States, 141 S. Ct. 1817, 1823, 210 L. Ed. 2d 63 (2021)
45. Borden v. United States, 141 S. Ct. 1817, 1824 (2021).
46. Borden v. United States, 141 S. Ct. 1817, 1823 (2021).
47. See e.g., Tex. Penal Code Ann. § 6.02(e) [1]
48. Model Penal Code § 2.05
49. "Absent statutory language expressly imposing absolute liability, the states of mind denominated in HRS § 702–204 will generally apply because we will not lightly discern a legislative purpose to impose absolute liability." State v. Eastman, 913 P.2d 57, 66, 81 Hawai'i 131, 140 (Hawai i,1996)
50. "The only proof required to convict an individual of an absolute liability offense is that an individual engaged in the prohibited conduct." 21 Am. Jur. 2d Criminal Law § 127
51. "Texas Penal Code Title 5, Chapter 19, Section 2".
52. "Yet, because there are several areas of the criminal law in which there may be good reason for distinguishing between one's objectives and knowledge, the modern approach is to define separately the mental states of knowledge and intent (sometimes referred to as purpose, most likely to avoid confusion with the word 'intent' as traditionally defined)." The modern view: intent and knowledge distinguished, 1 Subst. Crim. L. § 5.2(b) (3d ed.).
53. Colb, S. F., "Why Can't Jurors Distinguish 'Knowing' From 'Reckless' Misconduct?", Justia, January 11, 2012.
54. "On the other hand, there is no uniform code that actually exists as law in all fifty states. While the Model Penal Code (MPC) may serve as a useful stand-in for such a uniform law, few, if any, states have adopted the MPC in its entirety, and most have rung interesting changes on it, accepting some parts and rejecting or modifying others. The result is that, as one wag has put it, criminal law professors are presented with the choice of teaching dead law (the common law) or mythical law (the MPC)." Chad Flanders, The One-State Solution to Teaching Criminal Law, or, Leaving the Common Law and the Mpc Behind, 8 Ohio St. J. Crim. L. 167 (2010)
55. Baron, Marcia (2019-09-28). "Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide". Criminal Law and Philosophy. 14 (1): 69–89. doi:10.1007/s11572-019-09509-5. ISSN 1871-9791. S2CID 204394428.
56. Simons, Kenneth W. (2003). "Should the Model Penal Code's Mens Rea Provisions Be Amended?". SSRN Electronic Journal. doi:10.2139/ssrn.397642. hdl:1811/72582. ISSN 1556-5068.
57. "To a large extent, the ambiguities surrounding the mens rea concept are the product of an ongoing historical process of accommodating within a single system of criminal law the virtues of two sometimes conflicting philosophical traditions: retributivism and utilitarianism. That the meaning of the 'guilty mind' requirement vacillates and evolves over time is therefore hardly surprising given the dynamics of the relationship between retributive and utilitarian theory." Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 Utah L. Rev. 635, 640 (1993)
58. "However, the law of mens rea is riddled with exceptions and qualifications, and some clarity is badly needed. The Supreme Court continues to confront the doctrine, and it is apparent that a bright line rule is needed to bring coherence to the doctrine of criminal intent and provide guidance to the federal judiciary." Connor B. McDermott, Mess Rea, 25 Lewis & Clark L. Rev. 607, 643–44 (2021)
59. Joshua Dressler, The Model Penal Code: Is It Like A Classic Movie in Need of A Remake?, 1 Ohio St. J. Crim. L. 157, 158-159 (2003).
60. "In particular, the original MPCS' bold and forceful commitment to imprisonment as a last resort and least-preferred reality, both at the time of sentencing and at all times thereafter, is a refreshing and needed perspective in an era of mass incarceration and extreme punishment terms. A fitting sense of imprisonment's horrible human realities, not to mention its inefficacies, is palpable in the original MPCS. In the MPCS revision, sentencing and imprisonment has the feel of a technical government challenge, rather than a necessary evil within a society committed to human liberty and personal freedoms." Douglas A. Berman, The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions, 61 Fla. L. Rev. 709, 722 (2009).
61. Matthew R. Ginther, "The Language of Mens Rea", 67 Vanderbilt Law Review 1327 (2019)
62. Maḥmaṣṣānī, S. R., The Philosophy of Jurisprudence in Islam, trans. F. Ziadeh (Leiden: E. J. Brill, 1961), p. 160.
63. Byron White. "John L. CHEEK, Petitioner, v. UNITED STATES (498 U.S. 192)". Legal Information Institute. Retrieved 5 May 2022. The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. [...] Thus, the Court almost 60 years ago interpreted the statutory term "willfully" as used in the federal criminal tax statutes as carving out an exception to the traditional rule. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws.
64. Byron White. "John L. CHEEK, Petitioner, v. UNITED STATES (498 U.S. 192)". Legal Information Institute. Retrieved 5 May 2022.
65. Ormerod, D., & Laird, K., Smith, Hogan, and Ormerod's Criminal Law, 15th ed. (Oxford: Oxford University Press, 2018), pp. 876–877.
66. For example, in England and Wales, parking on a cycle path is normally illegal, but not for the purpose of responding to an emergency: "Road Traffic Act 1998: Section 21", legislation.gov.uk, The National Archives, 1998 c. 52 (s. 21)
67. Duff, R. A., & Green, S., eds., Philosophical Foundations of Criminal Law (Oxford: Oxford University Press, 2011), p. 257.
68. Allen, M. J., & Edwards, I., Criminal Law, 15th ed. (Oxford: Oxford University Press, 2019), p. 81.
69. Carlan, P., Nored, L. S., & Downey, R. A., An Introduction to Criminal Law (Burlington, MA: Jones and Bartlett, 2011), p. 82.

Further reading

• Dubber, Markus D. (2002). Criminal Law: Model Penal Code. Foundation Press.
• Badar, Mohamed Elewa (2013). The Concept of Mens Rea in International Criminal Law. Hart Publishing. ISBN 9781782250661.
• Knoops, G.-J. A. (2017). Mens Rea at the International Criminal Court. Brill. ISBN 9789004307889.

External links

• Criminal Responsibility and Intent
• Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law: Hearing before the Over-Criminalization Task Force of 2013 of the Committee on the Judiciary, House of Representatives, One Hundred Thirteenth Congress, First Session, July 19, 2013.