§ 10.02 Definition of "Mens Rea": The Dual Meanings

§ 10.02 Definition of "Mens Rea": The Dual Meanings

[A] Ambiguity of the Term

Professor George Fletcher has observed that "there is no term fraught with greater ambiguity than that venerable Latin phrase that haunts the Anglo-American criminal law: mens rea."⁸ Holmes, too, has noted "that most of the difficulty as to the mens rea was due to having no precise understanding what the mens rea is."⁹ "Mens rea" has been described as "chameleon-like, [because it] takes on different colors in different surroundings."¹⁰ Professor Sanford Kadish has ruefully observed that "the term "mens rea is rivaled [by few legal terms] for the varieties of senses in which it has been used and for the quantity of obfuscation it has created."¹¹

Generally speaking, "mens rea" has two meanings. Particularly during the early development of the doctrine, the term had a broad meaning, described below in subsection [B]. Over time, however, "the law [has] embarked upon the long journey of refinement and development"¹² of the doctrine, resulting in a narrower, more precise meaning, considered in subsection [C]. Although the latter meaning has gained prominence, both usages of the term "mens rea" persist today, so both should be understood and remembered.

[B] Broad Meaning: The "Culpability" Meaning of "Mens Rea"

Broadly speaking, "mens rea" is defined as "a general immorality of motive,"¹³ "vicious will,"¹⁴ or an "evil-meaning mind."¹⁵ Although each of these phrases has a slightly different connotation, "mens rea" as used here suggests a general notion of moral blameworthiness, i.e., that the defendant committed the social harm of an offense with a morally blameworthy state of mind, one that renders him deserving of punishment. For current purposes, this may be termed the "culpability" meaning of "mens rea."

According to this definition of "mens rea" guilt for an offense is not dependent on proof that the actor caused the proscribed harm with any specific mental state, i.e., it is not necessary to show that he committed the offense "intentionally," "knowingly," or with any other particular frame of mind. Indeed, common law definitions of some offenses failed to specify any particular mens rea term.¹⁶ It was sufficient that the defendant committed the social harm in a manner that demonstrated his bad character, malevolence, or immorality.

For example, in Regina v. Cunningham,¹⁷ C entered the cellar of a building, where he tore the gas meter from the gas pipes and stole the coins deposited...