Mens Rea Explained

Mens Rea

Mens Rea


In criminal law, some crimes require that the accused have “Mens Rea” (Latin for “a guilty mind”) before being found guilty of the crime. In legal systems with due process, actus reus (“a guilty act”) must be accompanied by mens rea (“a guilty mind”) to demonstrate these crimes have been committed with intent and have produced criminal liability.

Mens Rea is not required in civil law but may come into play when making judgements on cases with a contract is intentionally breached and the plantiff is going for additional damages.

In a number of countries around the world, the two terms have been replaced by “fault elements” for mens rea and “physical elements” for the actus reus to make understanding of the concepts easier than the old latin terms.

Edward Coke developer the terms in the English legal system to explain that in certain cases, a person is not guilty unless their mind is also guilty. That makes the test for guilt a combination of evidence of the commission of the crime, culpability, and blameworthiness in both behavior and mind.

Actus Reus requires that an act exists. The definition of act is: “A bodily movement whether voluntary or involuntary”, some kind of external state of affairs which affects others in some way. However the omission of an act can also also be used to demonstrate guilt of a crime. If the law requires individuals file a tax return, for example, then not filing one is the omission of an act and criminal. The legislation must very clearly spell out that omission of an act is criminalized. If the omission of an act that would normally be expected of a person occurs and causes injury – an actus reus has occurred.

There are other special considerations as to what is considered actus reus. Possession of illegal items is considered an act because their illegality has been legislated in a way that makes it so. The possession is considered a “voluntary act”.

All actus reus must be a voluntary act. So if a person has a convulsion, bodily movement while sleeping, or other reaction which is out of their control, it may not be considered a voluntary act.

For example, if an individual had a seizure and accidentally hit another person causing injury, it could be considered not to be actus reus. However if they person had a history of such seizures and put themselves in a situation where the seizure would occur, actus reus may be demonstrated.

So, under the traditional common law interpretation, the guilt or innocence of an individual depends up whether they had committed the crime and whether they had intended to commit the crime. However in modern penal codes there are often varying modes of culpability, which are based on different levels of mens rea amongst other things.

The modern courts interpretation of actus reus and mens rea have been modified so that it is:

actus reus: any conduct resulting in the death of another individual;
mens rea: intent or knowledge that the conduct would result in the death.

The levels of mes rea in the English legal system are as follows:

  • Direct intention: the accused has a clear notion of the results of his actions and intends the result (the death of other person/s).
  • Oblique intention: the result of the action or inaction of the defendant would inevitably lead to death, a “virtual certainty”.
  • Knowingly: the person knows or show know that their actions would lead to death.
  • Recklessness: the actor foresees foresees potential for death and does not care
  • Criminal negligence: the actor did not actually foresee that the particular consequences would occur, but a normal and competent person would

The same standards are applied in most of the state in the United States.