Liable but not Culpable, Part 2: Lexplaining Intent in the Criminal System

Welcome to the second installment of the Lawyers & Liquor series on the difference between the criminal and civil justice systems.  I’m your host, the Boozy Barrister.

So last time we talked about the general differences between the criminal and civil justice systems.  We talked about the difference between the burdens of proof necessary to hold someone responsible for an offense, the intention of the two systems, the nature of who is bringing a case, the punishments, and where the basis for criminal and civil law is found.  That was all leading up to today’s discussion, which could possibly be useful for lawyers that have lost half of their brain, or may have been practicing in one area for so long that they’ve forgotten the differences when they switch fields.

So, today on Lawyers & Liquor, and without any further dilly dallying back and forth, we’re going to start talking about the concept of mens rea in both the civil and criminal systems.

Let’s start with a conversation today about mens rea and criminal law because, once fucking again my wonderful little shit stains, this shit is somewhat complex and I’m basically boiling down like three weeks of criminal law courses into a single goddamn post for you.

What the fuck is Mens Rea?

Mens rea  is a latin term.

Oh, you want more of an explanation? What, did your copy of Black’s Law Dictionary suddenly decide to go for a swim in a toilet? Are you an overeager beaver who was reading up on the definitions of random legal terms in the shower?  Fine then, I’ll give you the actual dictionary definition of the term.

According to Black’s Law Dictionary, the legal dictionary for those of us who enjoy having a large number of faux leatherbound volumes in our offices, Mens rea literally means “guilty mind” and is defined in law as:

The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness.

Black’s Law Dictionary, 445 (2d Pocket Ed. 2001).

You’ll notice right off the bat that mens rea is used exclusively for criminal matters.  You can tell because the definition uses the words “prosecution” and “criminal.” Sometimes the law really is that fucking simple.


No, there are no thought crimes.  In criminal law we combine the mens rea with the actus reus, meaning the criminal act.  Both of those things together must be present to secure a criminal conviction: a guilty state of mind and some criminal act.

See, this is why I fucking hated Minority Report.  Even in the future, the police fuck with the laws to suit their needs.

So…I have to intend to commit the crime to be guilty and actually commit the crime?

I didn’t say that.  What I said was that you have to have both a guilty mind and commit an act with that state of mind.  That’s different than intending the outcome that you committed, and even then it isn’t like you have to be saying “I want to kill Billy Bastard to be guilty of murder!” because, if it was that simple we’d never convict anyone.

Remember last time when we talked about the Model Penal Code? Cool, then you’ll remember that I said it was based off of commonly held crimes and shit, and you should know that the MPC also sets out the states of mind necessary to secure a criminal conviction, and yes, there is more than one state of mind that applies here.  The criminal codes of most states actually have four general culpable states of mind to secure a conviction for criminal acts.  They are, from easiest to use to toss your ass in jail to hardest to prove, as follows:

  1. Strict Liability – Your state of mind doesn’t fucking matter, you committed the act itself and that alone is enough to convict you.  This generally only applies to shit like…parking tickets.
  2. Negligently – A reasonable person in the same situation, which you definitely are not, would know that there was a “substantial and unjustifiable risk” that whatever they’re doing is illegal, will have an illegal result, and/or under the circumstances you should have known the same damn thing but didn’t.
  3. Recklessly – You know that what you’re doing will likely be criminal, and have a criminal result, but you don’t give a shit even if you don’t want the criminal thing to happen.
  4. Purposefully – Fuck the police. You know your actions will have a criminal result, and you’re undertaking the actions because you want the criminal result to happen.

You’ll note that two of the four don’t require you personally to actually want to kill Billy Bastard, only that you either a) did it or b) should have known that the result would be killing Billy Bastard.  But that’s really a thought exercise, because murder requires intent, and when we say “intent” in criminal law we’re talking about good old number 4 up there, “purposefully.”

[Let’s take a brief moment here and clarify: Not all homicides are murders. Murder is a specific offense normally codified as “Homicide in the X degree” or something, and pretty much always requires actual intent.  Meanwhile, things like “Reckless Homicide” and “Manslaughter” are also homicides, but don’t require the specific intent of causing death and have lower mens rea requirements, such as recklessness or negligence, to be founded.  However, they are all homicides, even if they aren’t all murders].

Who decides what mens rea applies to what crime?

The legislature.  Here, let me show you a sample of the Pennsylvania Statute for a crime:

§ 2701.  Simple assault.

(a)  Offense defined.–Except as provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he:

(1)  attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;

(2)  negligently causes bodily injury to another with a deadly weapon;

(3)  attempts by physical menace to put another in fear of imminent serious bodily injury; or

(4)  conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of a correctional institution, county jail or prison, detention facility or mental hospital during the course of an arrest or any search of the person.

18 Pa.C.S. § 2701(a).

See what it says up there?  “Intentionally, knowingly, or recklessly.”  Those are the states of mind that the legislature has said a criminal defendant has to have in order to be guilty of Simple Assault in Pennsylvania.  That means, with the exception of the “deadly weapon” provision, just the fact that someone should have been aware their action would cause bodily injury to another but wasn’t actually aware of the risk isn’t sufficient to sustain a conviction under Simple Assault.

And this runs through the code: where there is a specific level of mens rea identified, the prosecution must show in their case that the defendant had that level of knowledge and intent before a conviction can be sustained.

And “negligent” conduct is, frankly, pretty fucking rare in the criminal code, used for only offenses that carry relatively minor penalties in the grand scheme of things.

Oh, and if the statute is silent?  Well, we cover that shit too:

(c)  Culpability required unless otherwise provided.–When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto.

(d)  Prescribed culpability requirement applies to all material elements.–When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

(e)  Substitutes for negligence, recklessness and knowledge.–When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts intentionally.

18 Pa.C.S. sec. 302(c)-(e).

The take away here, once again, is unless the law specifically says negligence is a culpable state of mind, someone has to have actual knowledge that their conduct will result or is likely to result in harm before they can be convicted of a crime.

Oh, and you can’t say “the law says reckless, but my client actually intended to beat Billy Bastard with a bat so NOT GUILTY!” We closed that loophole.  Where the law specifies a lower level of mens rea than the Defendant had, the higher level will still support a conviction.

Wait, you said “actual knowledge.”

I sure did!  Great reading comprehension!

That’s the major fucking difference between the civil and criminal law systems right there, really, as we’ll see more when we get to the civil shit.

See, outside of that “negligent” level, criminal law does not look at things objectively, meaning disregarding the actual mindset of the individual and substituting in what any reasonable person would have known.  Instead, criminal law, when it comes to mens rea and intent, looks at the matter subjectively, which is “Did this specific person know and understand or at least accept the risks of their behavior when they were acting?”  Now, this is shown by evidence and not merely by someone saying “I had no idea beating him 50 times with the ball bat I wrapped up in barbed wire two days ago would kill him!” but it’s a question of fact that’s important, because subjective intent asks “What did this person actually mean to do” versus “what would a reasonable person have expected to happen?”

By the way, this is exactly why the “mental illness” defense even exists: because the standard in criminal cases is the actual knowledge of the defendant, not what society at large would expect to happen as a result.

But that’s a whole complex thing for another day.

How is this different from civil law?

Oh, it’s really fucking different from how we look at the state of mind in civil law.  Really different. Like, couldn’t be more different.

But we’re over my 1,500 word limit, so that’s a post for Monday, isn’t it?

Join me next time for the thrilling conclusion to “Liable but not Culpable,” wherein I advise you as to why none of you are actually reasonable people.


4 thoughts on “Liable but not Culpable, Part 2: Lexplaining Intent in the Criminal System”

  1. I see the phrase “reasonable person” used a lot. Does that have an actual legal definition?

      1. “It’s totally useless and tautological and it varies by jurisdiction and context.”

        That sounds like a phrase that can be used to describe a great number of things in several different industries.

        1. I actually am reserving that whole “reasonable person” thing till Monday in the portion regarding civil law, because it’s an extremely important phrase in civil law and can be discussed more in depth there.

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