Mens Rea

stand your ground by george zimmerman by Clay Bennett

Mens rea [mens ray-uh] is Latin for ‘guilty mind.’ In jurisdictions with due process, there must be an actus reus (‘guilty act’) accompanied by some level of mens rea to constitute the crime with which the defendant is charge. 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. 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.

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.

Prior to the 1960s, mens rea in the United States was a very slippery, vague and confused concept. Since then, the formulation of mens rea set forth in the Model Penal Code has been highly influential throughout North America in clarifying the discussion of the different modes of culpability:

  • Purposefully: the actor has the ‘conscious object’ of engaging in conduct and believes or hopes that the attendant circumstances exist.
  • Knowingly: the actor is practically certain that his conduct will lead to the result.
  • Recklessly: the actor is aware that the attendant circumstances exist, but nevertheless engages in the conduct that a ‘law-abiding person’ would have refrained from.
  • Negligently: the actor is unaware of the attendant circumstances and the consequences of his conduct, but a ‘reasonable person’ would have been aware.
  • Strict liability: the actor engaged in conduct and his mental state is irrelevant.

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