Chapter 2

ACTUS REUS AND MENS REA

Introductory note: All crimes have several basic common elements. This chapter treats all but one of the major ones: (1) a voluntary act (“actus reus”); (2) a culpable intent (“mens rea”); and (3) “concurrence” between the mens rea and the actus reus (i.e., a showing that the act was the result of the culpable intention). The fourth major element, causation of harm, is discussed in the following chapter, infra, p. 55.

I. ACTUS REUS

A. Significance of “actus reus” concept: The requirement that the defendant have committed a voluntary act (“actus reus”) can best be understood by analyzing three basic kinds of situations in which the requirement may be held not to have been met. The required voluntary act is distinguished from: (1) thoughts, words, states of possession and status; (2) involuntary acts (e.g. sleep-walking); and (3) omissions (i.e., failure to act).

B. Distinguished from thoughts, words, possession and status: Mere thoughts are never punishable as crimes. Even the crime of conspiracy, and the various crimes of attempt, exist only where the defendant has gone beyond thoughts, however evil and detailed, and committed an overt act. The refusal to punish mere thoughts stems both from fears of “thought control” as well as from practical problems of enforcement and proof.

1. Statement of intent made to third party: Even if the defendant has confessed his evil intent to some third person, this will usually not be enough to constitute the actus reus. For instance, a statement “I intend to kill X” would not constitute the requisite criminal act. See K&S, p. 179-181.

a. Words as acts: But there a few situations in which, by the nature of the crime in question, words may constitute the requisite act. For instance, in some jurisdictions, an agreement between two persons to commit a crime is a sufficient act to constitute conspiracy; similarly, words spoken to encourage another to commit a crime might well be enough to give rise to a prosecution for aiding and abetting criminal activity. See K&S, p. 179-181.

2. Possession as criminal act: Mere possession of an object may sometimes constitute the necessary criminal act. For instance, possession of narcotics frequently constitutes a crime in itself.

a. Knowledge of possession: However, the act of “possession” is almost always construed so as to include only conscious possession. Thus if the prosecution fails to prove that the defendant knew that he had narcotics on his person, there can be no conviction.

b. Knowledge of guilty character of object: But for possession to be a criminal act, it is not necessarily required that the defendant have been aware of the object’s illegal or contraband nature.