§ 10.07 MODEL PENAL CODE

JurisdictionNorth Carolina

§ 10.07. Model Penal Code122

No aspect of the Model Penal Code has had greater influence on the direction of American criminal law than Section 2.02 of the Code, which sets out the "General Requirements of Culpability."123 The purpose of Section 2.02 is to "obliterate[] ill-defined, confusing common law language and concepts and replace [ ] them with four specifically defined hierarchical levels of culpability . . . used to define crimes."124

[A] Section 2.02: In General

Section 2.02 takes an exclusively "elemental"125 approach to the concept of mens rea. Subsection (1) provides that, except in the case of offenses characterized as "violations,"126 a person may not be convicted of an offense unless "he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense." In other words, "violations" aside, the Code requires the prosecution to prove that the defendant committed the social harm of the offense—indeed, each material ingredient of the social harm of the offense—with a culpable state of mind, as set out in the specific statute. Furthermore, the legislature may choose to require different levels of culpability for each material element. For example, a statute could be drafted with the following structure: "It is a felony to purposely do X and knowingly do Y, so as to recklessly cause Z."

This provision is noteworthy in various regards. First, a person may not be convicted solely on the ground that he acted with a morally blameworthy state of mind, i.e., the Code eschews the "culpability" meaning of "mens rea." Second, the common law distinction between "general intent" and "specific intent"127 is discarded.

Third, the Model Penal Code removes the clutter of common law and statutory mens rea terms, and replaces them with just four carefully defined terms: "purposely"; "knowingly"; "recklessly"; and "negligently."128 They represent the Code's hierarchy of culpability, in which purposeful misconduct is deemed the most culpable, leading down to negligence, the least culpable.129

Fourth, the phrase "material element of the offense," as used in Section 2.02 and throughout the Code, includes "elements" relating to the existence of a justification or excuse for the actor's conduct,130 i.e., to defenses to crimes. As a consequence, since Section 2.02 states that one of the four culpability terms applies to every material element of a crime, this Section is also relevant in determining whether a person is entitled to acquittal on the grounds of an affirmative defense.

[B] Culpability Terms

[1] "Purposely"

The term "purposely" has two definitions in the Code, depending upon whether the material element of the offense under consideration pertains to a result or conduct, on the one hand, or to an attendant circumstance, on the other. In the context of a result or conduct, a person acts "purposely" if it his "conscious object to engage in conduct of that nature or to cause such a result."131 So defined, "purposely" is a mental state comparable to the first—but only the first—of the two alternative common law definitions of the word "intentional."132 For example, in the airplane bombing hypothetical discussed earlier,133 the death of V, D's wife, was "purposeful" because it was D's conscious object to take V's life, but the deaths of the remaining passengers were not "purposeful" (although they were "intentional" as the common law defined that term).134 The Code also follows in most respects, the common law "transferred intent" doctrine.135

A person acts "purposely" with respect to attendant circumstances if he "is aware of the existence of such circumstances or he believes or hopes that they exist."136 For example, if D enters an unoccupied structure in order to commit a felony inside, he has acted "purposely" regarding the attendant circumstance that the structure was unoccupied if he was aware it was unoccupied or hoped that it would be.

[2] "Knowingly"

The Code provides two definitions of the term "knowingly," one that applies to results, and the second that pertains to conduct and attendant circumstances. A result is "knowingly" caused if the actor "is aware that it is practically certain that his conduct will cause such a result."137 Thus, again in the airplane bombing hypothetical,138 D knowingly killed V's fellow passengers, assuming D was aware that his bomb would almost certainly kill those on board.139 If D lacked normal mental faculties, or for any other reason had a distorted sense of reality, so that he was not subjectively aware that their deaths were practically certain to result, then a finding of "knowledge" would be inappropriate.

With "attendant circumstances" and "conduct" elements, one acts "knowingly" if he is "aware that his conduct is of that nature or that such [attendant] circumstances exist."140 For example, suppose D fired a loaded gun in V's direction, and was prosecuted for "knowingly endangering the life of another." D is guilty if he was aware that his conduct endangered the life of another person. If he was not aware (perhaps because he did not see anyone in the vicinity), then D did not endanger another knowingly, no matter how obvious V's presence may have been to others.

The same approach is used with attendant circumstances. If D purchased stolen property and was prosecuted for "knowingly receiving stolen property," D would be guilty of the offense if, when he received the property, he was aware that it had been stolen. In order to deal with the controversial concept of "willful blindness"141 the Code includes...

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