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Mens Rea: The Criminal State of Mind

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Mens Rea: The Criminal State of Mind

To be found guilty of a crime, the prosecution must prove that there was a physical action, actus reus, and a state of mind to commit a crime, known as mens rea. Mens rea is concerned with what the defendant was thinking at the time he committed the actus reus. Different crimes have different mens rea requirements.

The purpose of this presentation is to provide an overview of mens rea. First, the presentation will introduce the different categories of mens rea. Next, the presentation will analyze each of these categories, provide the key components to each, and will provide examples of crimes that are classified under these mental states.

Overview of Mental States

Mens rea is divided into three categories: general intent, specific intent, recklessness/criminal negligence. Additionally, there is a class of crimes for which no mens rea element is required. These are called strict liability crimes. Strict liability crimes are crimes for which liability is imposed without consideration of the defendant’s knowledge or intentions.[1]

General Intent

General intent crimes require that the defendant had the intention to commit an illegal act. All that is needed for a conviction is an intent to commit the act that constitutes the crime. General intent exists when the illegal act may reasonably be expected to follow from an offender’s voluntary act even without any specific intent by the offender.

To prove general intent, the prosecution must demonstrate that the defendant acted intentionally in the sense that he was aware of what he was doing. For general intent crimes, the very doing of acts that have been declared criminal shows the criminal intent necessary to sustain a conviction. For example, a defendant can be convicted for the illegal skinning of an alligator if he is merely in possession of an alligator that was not appropriately skinned. This is because a jury may infer the required general intent merely from the doing of the act. Some examples of general intent crimes are the following:

·         Rape

·         Battery

·         False imprisonment

·         Kidnapping

Specific Intent

Specific intent designates a special mental element that is above and beyond any mental state required with respect to the actus reus of the crime.[2] Specific intent is a term used to describe a state of mind that exists where a defendant objectively desired a specific result to follow his act. The prosecution must prove that the defendant acted with the intent to achieve a specific goal, as well as the intent to commit the illegal acts. Specific intent cannot be inferred from the commission of the act and specific proof is required to demonstrate that this element is satisfied.

Conspiracy is an example of a crime requiring the mens rea to be specific intent. The general federal conspiracy statute provides, ‘[i]f two or more persons conspire . . . to commit any offense against the United States . . . each shall be fined not more than $10,000 or imprisoned not more than five years, or both.’ 18 U.S.C. § 371. ‘[T]he specific intent required for the crime of conspiracy is in fact the intent to advance or further the unlawful object of the conspiracy.’

Other examples of specific intent crimes are:

·         Attempt

·         Assault

·         First degree premeditated murder

·         Burglary

·         False pretenses

Criminal Negligence and Recklessness

There are also crimes that require neither specific nor general intent. A prosecutor can secure a conviction by demonstrating that the defendant acted recklessly or negligently. Both recklessness and criminal negligence may exist when the defendant acted with a gross lack of care without paying attention to the unjustifiable risk that the circumstances exist or the result will occur. Recklessness is a higher level of guilt than criminal negligence. Both negligence standards and the possible criminal charges stemming from criminal negligence vary state to state.

Even though there are variations, the defendant’s mental state must be of such a nature and to such a risky degree that the failure to perceive the risks of his actions constitutes a gross deviation from the standard of care that an ordinary person would exercise. Unlike general or specific criminal intent, criminal negligence is negative, meaning it does not require an affirmative act by the defendant.

An example of a conviction based on a showing of recklessness occurred in a case involving drag racing.[3] The defendant was convicted of negligent homicide as the result of illegal drag racing, where speeds were at least forty miles per hour over the speed limit. After two vehicles engaged in such reckless driving, there was a crash and a fatality. The prosecution successfully proved that the defendant’s mental state was reckless. In convicting the defendant, the court reasoned that driving at those speeds while drag racing “exhibited such disregard for the interest of others as to amount to a gross deviation below the standard of care expected of a reasonably careful man.”

Strict Liability

There is another class of crimes referred to as strict liability crimes. Strict liability crimes, also known as public welfare offenses, are crimes that do not require mens rea. The defendant could be found guilty merely because he committed the act. Some examples of crimes that fall into the strict liability category are:

·         Statutory rape

·         Selling alcohol to minors

·         Bigamy

Statutory rape is a strict liability crime because even if the offender believed their partner was of consenting age, he is still guilty of committing the crime so long as the victim is under a certain age. These laws, even though very severe, are intended to protect certain classes of individuals from certain kinds of conduct.[4] Determining whether a crime is a strict liability crime depends on the state legislature’s intention.  


[1] Laurie Levenson, Good Faith Defenses: Reshaping Strict Liability Crimes, 78 Cornell L. Rev. 401, (1993).

[2] People v. Hood, 462 P.2d 370, 378 (Cal. 1969)

[3] State v. Martin, 539 So. 2d 1235, 1238 (La. 1989).

[4] People v. Travers, 124 Cal. Rptr. 728, 730 (1975).