Mens Rea (State of Mind)

2021 ◽  
pp. 1-6
Author(s):  
Paul Connor
Keyword(s):  
Mens Rea ◽  
State Of Mind

Crime as Prime

2018 ◽  
Author(s):  
Richard Holton
Keyword(s):  
The State ◽  
Mens Rea ◽  
Attempted Murder ◽  
State Of Mind ◽  
Actus Reus ◽  
Mental Element ◽  
Primitive Notion

This paper develops an account of core criminal terms like ‘murder’ that parallels Williamson’s account of knowledge. It is argued that while murder requires that the murderer killed, and that they did so with a certain state of mind, murder cannot be regarded as the conjunction of these two elements (the action, the actus reus, and the associated mental element, the mens rea). Rather, murder should be seen as a primitive notion, which entails each of them. This explains some of the problems around criminal attempt. Attempted murder cannot be seen simply as involving the state of mind of murder minus success; rather, it has to be seen as a self-standing offence, that of attempting to commit the murder.

scholarly journals The Prejudicial Effects of "Reasonable Steps" in Analysis of Mens Rea and Sexual Consent: Two Solutions

2018 ◽  
pp. 933
Author(s):  
Lucinda Vandervort
Keyword(s):  
Sexual Assault ◽  
Personal Experience ◽  
Common Law ◽  
Criminal Code ◽  
Decision Makers ◽  
Sexual Consent ◽  
Mens Rea ◽  
State Of Mind ◽  
Definition Of ◽  
Is Failure

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by section 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded in their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable,” given what the accused knew, the legal definition of consent in section 273.1 is easily overlooked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. The result is failure to enforce the law. The author proposes: (1) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and (2) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent.

2. The elements of a crime: actus reus

2021 ◽  
pp. 26-87
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
The State ◽  
Mens Rea ◽  
Problematic Case ◽  
State Of Mind ◽  
Two Factors ◽  
Actus Reus ◽  
Mental Element ◽  
State Of Affairs

The chapter begins the exploration of the elements of criminal offences. Two factors are crucial: the event, behaviour or state of affairs known as the external element or actus reus, and the state of mind known as the mental element or mens rea. This chapter discusses the principle of actus reus, proof and the elements of the offence, how to identify elements of actus reus and mens rea, coincidence of actus reus and mens rea, the effect of penalty provisions in determining the elements of the actus reus, actus reus and justification or excuse, the problematic case of Dadson with regard to actus reus, physical involuntariness, a ‘state of affairs’ as an actus reus, general liability for omissions, offences of mere omission, causation, the ‘but for’ principle, the connection between fault and result and negligible causes.

25. Intoxication

2017 ◽  
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Mens Rea ◽  
State Of Mind ◽  
Mental Element ◽  
The Law ◽  
Definition Of

This chapter discusses the law on offences involving intoxication. It distinguishes between voluntary and involuntary intoxication, and between ‘specific’ and ‘basic’ intent. Cases are presented to show that state of mind is both a necessary element in the definition of an offence as well as in some defences. Just as intoxication may cause a person to lack the mens rea of an offence so it may cause him to have the necessary mental element of a defence.

2. The elements of a crime: actus reus

2018 ◽  
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
The State ◽  
Mens Rea ◽  
Problematic Case ◽  
State Of Mind ◽  
Two Factors ◽  
Actus Reus ◽  
Mental Element ◽  
State Of Affairs

The chapter begins the exploration of the elements of criminal offences. Two factors are crucial: the event, behaviour or state of affairs known as the external element or actus reus, and the state of mind known as the mental element or mens rea. This chapter discusses the principle of actus reus, proof and the elements of the offence, how to identify elements of actus reus and mens rea, coincidence of actus reus and mens rea, the effect of penalty provisions in determining the elements of the actus reus, actus reus and justification or excuse, the problematic case of Dadson with regard to actus reus, physical involuntariness, a ‘state of affairs’ as an actus reus, general liability for omissions, offences of mere omission, causation, the ‘but for’ principle, the connection between fault and result, and negligible causes.

Re-formulating the Observable Inadequacy of the Prevalent Approaches Followed by Islamic Jurisprudence and Statute Law in Dealing with Mens Rea

2016 ◽  
Vol 80 (4) ◽  
pp. 254-263
Author(s):  
Fatemeh Ahadi
Keyword(s):  
United States ◽  
Criminal Law ◽  
Common Sense ◽  
The State ◽  
The Other ◽  
Mens Rea ◽  
Islamic Jurisprudence ◽  
State Of Mind ◽  
Criminal Intent

The present paper constitutes an attempt towards questioning the adequacy of the prevalent approached employed by Islamic jurisprudence and statute law in dealing with mens rea and its manifestations. It also provides a kind of reinterpretation of the concept since it attaches itself to the perspective that the concepts employed in criminal law need evolution in order to preserve their function and practicality; the conditions appertaining thereto necessitating adaptability of the concepts with the contextual conditions as well as the principles of the criminal law. Under criminal law, mens rea is referred to as ‘criminal intent or the state of mind indicating culpability which is required by statute as an element of a crime’ (see, for example, Staples v United States, 511 US 600 (1994)). Under Islamic jurisprudence it is defined as ‘rebellion intent’. These conceptualisations of the mens rea may be subject to evolution as well as the other concepts. The present paper provides a reformulation of these definitions wherein mens rea is considered to be ‘the culpable linkage of mind with the forbidden conduct’. Through this reformulation the author replaces the ‘state’ with ‘linkage’ presupposing that the interpretation of the term ‘culpable’, as an independent constituent, shall vary according to the provisions of common sense and the contextual conditions.

Sexual Offenses and Consent

1998 ◽  
Vol 11 (1) ◽  
pp. 69-88 ◽  
Author(s):  
Nathan Brett
Keyword(s):  
Sexual Activity ◽  
Common Sense ◽  
The State ◽  
The Other ◽  
Mens Rea ◽  
Prominent Feature ◽  
Sexual Offenses ◽  
Other Hand ◽  
State Of Mind ◽  
Mental Element

In this paper I address a question that has not been a prominent feature of cases or articles which have concerned the issue of consent in relation to sexual offenses. Much work has been done by judges and legal theorists regarding the defendant’s beliefs about the consent of the complainant and the mental element or mens rea of this offense. But, any answers to these questions presuppose some answer to a prior question: What is consent? What must be true of a person who does consent? What must be missing, on the other hand, in a situation where sexual activity takes place without consent?Common sense provides a relatively simple answer to these questions: To consent is to give permission; a person acts without consent where no such permission has been obtained. It is this answer that I want to defend in this paper. This view assumes that talk of consent only makes sense in relation to some autonomy right. Giving consent involves autonomously making changes in a prevailing pattern of rights and obligations. It is a limited withdrawal of a right not to be interfered with; and it will make legally permissible actions that would otherwise be subject to criminal and civil penalties. To me it seems obvious that such a change in the prevailing pattern of rights and obligations can only take place where there is communication between the parties. This means that the question of consent is not just a question about the state of mind or attitude of the complainant. Rather, the matter which should be central to a court’s consideration of consent is the question of what was said or done that could be construed as granting permission to do the acts in question.

3. The elements of a crime: mens rea

2021 ◽  
pp. 88-135
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Correspondence Principle ◽  
Mens Rea ◽  
State Of Mind ◽  
Actus Reus ◽  
The Law

This chapter examines the mens rea or mental fault of the accused. Because an actus reus is treated in law as a bad thing, an intention to cause it is, in law, a bad intention, a guilty mind. Similarly, consciously taking an unjustified risk of causing an actus reus—that is, recklessness—is also a bad state of mind. Unintentionally causing an actus reus by negligence may also be regarded as legally blameworthy. Each of these implies different degrees of ‘fault’. The chapter also discusses subjective and objective fault, intention in crimes other than murder, the distinction between motive and intention, subjective recklessness and malice, wilful blindness, suspicion and reasonable grounds to suspect, the correspondence principle and constructive crime, coincidence in time of actus reus and mens rea, ignorance of the law, absence of a ‘claim of right’ as an element in mens rea and proof of intention and foresight.

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