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The Doctrines of Mens Rea

”Traditional” and “Statutory” Mens Rea

Clearly heavily influenced by religious notions of sin, the criminal law as early as the thirteenth century encapsulated the need for a “vicious will” in the Latin term “mens rea.” This view that a defendant could be punished only if he were a “sinner” influenced the common law and created the traditional mens rea concept described earlier. Between that time and the middle of the twentieth century, both common law courts and legislatures used a dizzying variety of adverbs in an attempt to capture the notion of general malevolence and blameworthiness at the heart of the original Latin term. These adverbs included “feloniously,” “unlawfully,” “maliciously,” “corruptly,” “fraudulently,” “spitefully,” and “willfully.” The Model Penal Code found that there were 76 terms in federal statutes alone that were used to describe mens rea.[2] This abundance of terms might have been amusing except that, under the principles of legality (see Chapter 1), courts faced with this wide variety of legislative terms felt compelled to conclude that there must be differences among each of them.[3] Explaining the nuances between 76 different terms challenged the creative limits of the courts’ ingenuity. As courts focused on the statutory words, however, the moral content of mens rea became diluted. If Mary, for example, is given a box to deliver to Jessica, and is told that it contains books, when she is charged with “intentionally transporting heroin” (the real content of the box), under traditional mens rea she will claim lack of moral blameworthiness. As we will see, she will likely be exonerated. Under a statutory mens rea approach, however, the court might ask only whether she “intentionally” “transported” the box. If so, she will be found guilty. Again, as we will see, recent court decisions seem to be moving toward providing rules of statutory construction that would “readopt” the common law approach and exculpate Mary.[4]

The distinction between traditional and statutory mens rea can work either to the benefit or detriment of a person charged with crime. If recklessness, for example, is morally blameworthy, a reckless defendant who is charged with “intentionally” doing x would be convicted under traditional, but acquitted under statutory, notions of mens rea. On the other hand, if “intentionally doing x “ means only that the defendant must intend only the conduct (transporting drugs) and not the fact (see Chapters 5 and 6), then a nonblameworthy actor who intentionally does an act that turns out to result in x might be found guilty under the statute.

As discussed later in this chapter and in Chapters 15-17, it is now fairly clear that there is no federal constitutional requirement that states observe “traditional” mens rea notions of blameworthiness before imposing criminal liability. Nevertheless, the division between the two types is still useful, both theoretically and practically. An example may help. In Regina v. Cunningham, 41 Crim. App. 155 (Ct. Crim. App. 1957), the defendant tore a gas meter off the wall of a house. The gas escaped, and V (an occupant of the house) was nearly poisoned. Defendant was charged with “unlawfully and maliciously” causing V to inhale the gas, to which he responded that he had absolutely no intent that she inhale the gas. The trial judge instructed the jury that it would be sufficient for conviction if they were persuaded that the defendant had acted “wickedly.” The defendant’s conviction was reversed on appeal because, although he intended to remove the gas meter (and thus commit theft), he did not intend (even obliquely or by transfer) to hurt V in any way. In the terminology we are using here, the trial court instructed the jury that if the defendant had traditional mens rea (just plain wickedness), that was enough. But the appellate court held that that was not enough; the defendant had to have statutory mens rea as well.[5] The moral—keep in mind “traditional” as well as “statutory” mens rea when analyzing criminal charges.

[2] Model Penal Code §2.02, commentary at 230 n. 3 (1980).
[3] Thus, in Rex v. Davis, 168 Eng. Rep. 378 (1788), a statute prohibited “wilfully and maliciously” shooting, but the indictment charged that the defendant “unlawfully, maliciously, and feloniously” shot. The indictment was ruled invalid because “wilfully” must mean something different than “unlawfully and feloniously.” There was certainly no doubt that the indictment charged the defendant with having traditional (i.e. blameworthy) mens rea, but that was insufficient: There was a requirement that the prosecution charge and prove statutory mens rea as well.
[4] ”Once upon a time, mens rea meant culpability … During the Enlightenment, its essential normativity remained, wrapped in the language of evil and wickedness, malice and passion…. For much of the past fifty years, the conventional view has tried to bury this judgmental feature. It has attempted to isolate the individual as the object of mens rea and to make mens rea look less like ‘guilty mind’ than simply ‘mind’.” V.F. Nourse, Hearts and Minds: Understanding the New Culpability, 6 Buff. Crim. L. Rev. 361, 365-6 (2002).
[5] Cunningham is often interpreted as saying that whether the defendant has traditional mens rea is irrelevant, but that is not the holding. The holding is that traditional mens rea is not sufficient; whether it is necessary is not raised by the case.

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