Model Penal Code’s Mens Rea

The Model Penal Code recognizes four different levels of mens rea: purpose (same as intent), knowledge, recklessness and negligence.

The key feature added by the Model Penal Code's system is that for any criminal statute, unless the statute specifically states otherwise, the defendant must commit all elements of the crime with a mental state of recklessness or greater (i.e., recklessness, knowledge of purpose).

• Purpose: A person acts purposefully (intentionally) if he acts with the intent that his action causes a certain result. In other words, the defendant undertakes his action either intending for, or hoping that, a certain result will follow.
• Knowledge: A person acts knowingly if he is aware that his conduct will result in certain consequences. In other words, a person acts knowingly if he is aware that it is practically certain that his conduct will cause a specific result.

The difference between acting intentionally and acting knowingly is somewhat subtle, but the following example should clear it up a little.

EXAMPLE: Fred and his new wife, Betty, decide to go to Hawaii on their honeymoon. Wilma, Fred’s jealous ex-wife finds out what flight they are on and plants a bomb on the plane with the intent of killing Fred and Betty. Wilma knows that there will be ninety-eight other passengers on the flight and, though she feels bad that they will die too, her hatred of Fred and Betty is so strong that she decides to proceed with her plan anyway. Sure enough, the bomb explodes in the middle of the flight, and all one hundred people on board are killed. According to the Model Penal Code’s breakdown of mens rea, Wilma has intentionally killed Fred and Betty because she acted with the intent that Fred and Betty would die. However, Wilma only acted knowingly with regard to the killings of the other ninety-eight passengers because, although it was not her intent to kill them, she acted knowing that her actions would result in their deaths. In other words, with respect to Fred and Betty, Wilma acted with the desire to cause their deaths, but with respect to the other ninety-eight passengers, Wilma acted not with the desire to cause their deaths, but with the knowledge that their deaths would result from her actions.

• Recklessness: A person acts recklessly if he is aware of a substantial risk that a certain result will occur as a result of his actions. The risk must be substantial enough that the action represents a gross deviation from what a reasonable law abiding person would do.

The difference between recklessness and knowledge is that where a person acts knowingly he acts with the certainty that a certain result will follow from his actions. However, where a person acts recklessly, the person does not know for sure that a specific result will follow. Rather, he only knows that there is a substantial risk that the result will follow. For example:

Fred and his new wife, Betty, decide to go to Hawaii on their honeymoon. Wilma, Fred’s jealous ex-wife, finds out what airline they are taking and what day they are flying and what plane they will be flying on, and she plants a bomb on that plane. Wilma has no idea what time the flight takes off, but she sets the bomb to go off at 7:00 in the morning. Sure enough, the bomb goes off at 7:00 in the morning, killing a baggage handler who is loading luggage onto the plane. In this case, Wilma has not purposefully killed the baggage handler since it was not her intent to kill him. Further, she did not knowingly kill him because it was not certain that the baggage handler’s death would result from Wilma’s actions. However, because there was a substantial and unjustified risk that Wilma’s actions would result in someone’s death or serious injury, she has acted recklessly.

• Negligence: A person acts negligently if they should have been aware of a substantial and unjustifiable risk that a certain consequence would result from their actions. Although the level of risk is the same for both recklessness and negligence, the difference between the two is that with recklessness, the actor must be aware of the risk involved with her actions, whereas, for negligence, the actor is not aware of the risks but should have known what those risks were. In other words, where Wilma sets the bomb off to go at 8:30, knowing that there is a risk   that someone might get killed, she has acted recklessly. However, if for some reason, she doesn’t recognize that someone might get killed, she has acted negligently because a reasonable person would be aware that someone could get killed if they were to put a bomb on an airplane.

Concurrence of the Actus Reus and Mens Rea

As you can probably imagine, there must be a concurrence between the mens rea and the act or result required by the crime that the defendant has committed. In other words, in order to be convicted of a crime the defendant must have had the requisite intent at the moment he performed the act. This is called the concurrence rule. For example:

As we will discuss later on in this course the crime of burglary is defined as the breaking and entering into the dwelling of another at night with the intent of committing a felony therein. According to the concurrence rule, in order for the defendant to be convicted of burglary, the prosecution must show that the defendant intended to commit a felony at the time he broke in to the dwelling. In other words, if Fred breaks into Barney’s house and steals Barney’s bowling ball, the prosecution will have to prove that Fred intended to steal the bowling ball when he broke into Barney’s house. If, however, Fred is a homeless person and breaks into Barney’s house on a cold night with the intent of simply warming up and only then, after he has broken into the house, decides to steal the bowling ball, Fred will not be convicted of burglary because there is no concurrence between his act of breaking and entering and his intent. See Jackson v. State, 15 So. 344 (Ala. 1894).

Where the relationship between the mens rea and the result are at issue because the crime in question requires that there be concurrence between the mens rea and the result (as opposed to the act), the prosecution must show that the result was attributable to the mens rea in order to sustain a conviction. Typically, the prosecution will sustain a conviction if they can show that the defendant intended for the result to occur at the time he committed his act. For example:

Fred and his new wife, Betty, decide to go to Hawaii for their honeymoon. Wilma, Fred’s jealous ex-wife, finds out which plane Fred and Betty will be taking and she plants a bomb on the plane with the intention of killing Fred and Betty. Before the flight takes off, Wilma has a change of heart and tries to alert the airline that there is a bomb on the plane. She fails. The plane takes off, and the bomb explodes, killing Fred, Betty and everyone else on the plane. Since Wilma intended for Fred and Betty to die when she planted the bomb on the plane, the required concurrence between Wilma’s mens rea and the result of her actions exists here. It is not essential that the intent and the result occur at the same time. In this case, when the result occurred, Wilma did not have the intent that she had when she planted the bomb. However, it only needs to be shown that the result was attributable to the intent for the concurrence to exist.