Mens Rea

Louisa Brackett
2 min readOct 5, 2020

What features must something have before we can permissibly criminalize it?

Gideon’s article deals the question should mens rea still be a required element when the state goes to criminalize a defendant. The House and Senate’s versions of the mens rea provision included a default mens rea provision and a knowledge of illegality provision. It is well agreed upon that someone’s knowledge and understanding of their own actions and how they are illegal are different from people committing crimes and not knowing the illegality in them. Farther down the line in the process of criminalization, it all kind of gets lumped together. Gideon poses that it might be a better idea for the legislature to decide on a case-by-case basis as to whether or not someone’s knowledge in their illegal act should be an element in their offense. Gideon’s frustrations reside with the legitimacy in the numerical argument and how it cuts “little if any ice when it comes to the mens rea provision.” Gideon’s argument is that what matters isn’t in the numbers, it’s about the peripheral effect they have on the outcome. The question ties back to ask what is permissible about something in order for you to criminalize it. The numerical language allows us to cease from criminalizing offenders that don’t have mens rea or the criminalizing the wrongdoing of others.

There is no question over the widely accepted top three levels of the Model Penal Code. The one in question is the forth one and whether or not it is sufficient for criminal liability for a defendant. The Model Penal Code consist of doing so purposely, knowingly, recklessly, and negligently. Negligently is when a person acts with all known facts in contrast to what a reasonable person would observe in the actor’s same situation. The main difference between recklessness and negligence is that recklessness involves conscious disregarding of a risk. A person acting recklessly is one that is aware of the risk but does so anyway. Is negligence a species of mens rea? “Does negligence provide what is needed if we are to say not just that the defendant did, but also that he or she did so culpably?” Should we punish with negligence? I do not think there are grounds to publish on negligence, but there are grounds upon to punish for mens rea. Therefore, I agree with the author. Negligence should not be in the MPC.