A. Mental State

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

A. Mental State

1. Alternative Approaches to Mental State

a. Specific Intent and General Intent

The traditional definitional approach to the mental part of criminal offenses has been to distinguish those requiring only a general criminal intent, mens rea, from those requiring additionally a more specific intent. This approach has not been entirely satisfactory for two reasons. First, mens rea has proved a most elusive quarry, next to impossible to define with precision; it means, perhaps, simply a "guilty mind," "an evil meaning mind," or "a general criminal intent." Sometimes the phrase is acknowledged as being incapable of definition, yet nonetheless useful as a shorthand label attached to the state of mind which must accompany those physical acts that are to be condemned by the criminal law. Rollin M. Perkins and Ronald N. Boyce, Criminal Law 826-27, Foundation Press (3rd ed. 1982) [hereinafter cited as Perkins and Boyce]. This description is, of course, circular and tells us nothing about the characteristics of that state of mind to which it refers.

The second difficulty with the traditional approach is that its other component, "specific intent" has been hardly less ambiguous except in the context of the carefully delineated requirements of each particular offense; the phrase might refer to one level of conscious activity in one crime and a different level in another. Sometimes specific intent is used to refer to offenses including a mens rea element of purpose or knowledge, with "general intent" reserved for offenses requiring a less culpable state of mind, such as recklessness or negligence. Joshua Dressler, Criminal Law 112 (West 1994). Other times, as noted above, general intent is used in a more generic sense to refer to whatever mental state is required by a given offense, ranging from purpose to negligence.

The rather unhelpful specific intent/general intent approach has been used in recent assault and battery with intent to kill cases, in which the courts reject a requirement of a "specific intent to kill" in favor of malice based on a general intent. State v. Fennell, 340 S.C. 266, 531 S.E.2d 512 (2000); State v. Foust, 325 S.C. 12, 479 S.E.2d 50 (1996); State v. Glenn, 328 S.C. 300, 492 S.E.2d 393 (Ct. App. 1997).

A recent general intent case involved the appeal of convictions for kidnapping, armed robbery, grand larceny, and failure to stop for a blue light by a defendant who claimed he was acting on behalf of the CIA. State v. Blurton, 352 S.C. 203, 573 S.E.2d 802 (2002). There was no offer of proof that he actually was working for the CIA when he robbed a Walmart store, but the convictions were reversed because of the trial court's refusal to admit evidence which, if credited, would indicate that the believed that he was. The opinion does not indicate how the evidence, once admitted, would relate to the issue of criminal intent. Blurton is discussed in more detail in Chapter VI.Q., Apparent Authority, infra.

For a discussion of specific and general intent by the United States Supreme Court, see Carter v. United States, 530 U.S. 255, 267-71 (2000).

South Carolina does not recognize the doctrine of diminished capacity, sometimes referred to as partial responsibility. Gill v. State, 346 S.C. 209, 552 S.E.2d 26 (2001). Under this doctrine, recognized in a minority of jurisdictions, a defendant who does not meet the definition of insanity may have the jury instructed that his mental condition may have precluded his having the state of mind requisite for commission of the crime. Partial responsibility is discussed in LaFave, infra, 475-87 (5th ed. 2010).

b. The Hierarchical Approach: Purpose, Knowledge, Recklessness, Negligence, and Strict Liability

Given the shortcomings of the traditional specific intent/general intent approach to mens rea, a movement developed toward a system of classification capable of greater precision. This movement became firmly established with the American Law Institute's adoption of the Model Penal Code in 1962, which has served as the model for statutory revisions in numerous jurisdictions. E.g., Ala. Code § 13A-2-2 (1999); New York Penal Law Ch. 40 § 15.05 (McKinney 2000).

The Model Penal Code defines in section 2.02(2) four different mental states in descending order of strictness: purpose, knowledge, recklessness, and negligence. The Code also recognizes in section 2.05 the concept of strict or absolute liability that authorizes the imposition of criminal liability without any mens rea. All of these terms will be defined in subsection A.2., infra.

The Model Penal Code, or hierarchical, approach to mens rea is developed in some detail in Chapter 5 of Wayne R. LaFave, Criminal Law (West 5th ed. 2010) [hereinafter referred to as LaFave] and is succinctly presented in Mr. Justice Rehnquist's opinion for the Court in United States v. Bailey, 444 U.S. 394, 402-09, and in F. Patrick Hubbard, Adopting the Model Penal Code Approach to Mental State, South Carolina Lawyer 29 (Jan/Feb. 1995).

South Carolina appeared to adopt this same approach in State v. Jefferies, 316 S.C. 13, 17-19, 446 S.E.2d 427, 430-31 (1994), cert. denied, 513 U.S. 1115 (1995) (using the hierarchical approach to analyze the mental element required by the kidnapping statute, S.C. Code Ann. § 16-3-910 (Supp. 1994)). Accord State v. Ferguson, 302 S.C. 269, 271, 395 S.E.2d 182, 183 (1990). "[T]he mental state required to be proven by the State for a particular crime might be purpose (intent), knowledge, recklessness, or criminal negligence." Id. Jefferies and Ferguson are discussed infra.

The hierarchical approach of Jefferies was followed in State v. Taylor, 323 S.C. 162, 473 S.E.2d 817 (Ct. App. 1996), cert. denied (1997). The trial court had instructed in a trafficking case that the defendant must have been "at least criminally negligent; by that I mean that she had knowledge and intent to possess . . . ." Id. at 165, 473 S.E.2d at 818. The court noted that the while the trafficking statute requires knowledge, the jury might have interpreted the instruction to allow conviction on the basis of negligence, a lesser standard of mens rea, and reversed.

The Supreme Court of South Carolina, however, took a less precise analytical approach in the post-Jefferies case of State v. Foust, 325 S.C. 12, 479 S.E.2d 50 (1996), concluding that the phrase "intent to kill" in the common law offense of assault and battery with intent to kill requires simply malice, the mental element of murder, and not at all a precise term. See Chapter II.A.2.b.5. and B.5., infra. Foust was followed in State v. Fennell, 340 S.C. 266, 531 S.E.2d 512 (2000), and in State v. Glenn, 328 S.C. 300, 492 S.E.2d 393 (Ct. App. 1997).

It is extremely important to understand that a given offense may require different mental states in regard to its different elements. For example, the statute proscribing hazing in fraternity initiation rituals provides that "[i]t is unlawful for any person to intentionally or recklessly engage in acts which have a foreseeable potential for causing physical harm . . . ." S.C. Code Ann. § 16-3-510 (Supp. 2012) (emphasis added). The element of engaging in acts must be accompanied by a mental state of either intent or recklessness, while the attendant circumstance of the nature of the acts requires the objective standard of foreseeability.

An important distinction between the different types of mental states concerns the requirement of subjective awareness. The vast majority of all criminal offenses require its presence: that is, the actor must be consciously aware of the risk created by his action. Some offenses, on the other hand, demand only criminal negligence, a standard akin to the objective test in tort law, focusing on the standard of care demanded of the ordinary reasonable person and penalizing deviations from that standard regardless of whether the actor was himself aware of the unreasonable degree of risk created by his action or inaction. The majority of offenses, those demanding subjective awareness, are themselves subdivided into those requiring that the conduct be intentional, knowing or reckless.

2. How to Determine What Mental State Is Required

The common law aside, the definition of criminal offenses is a legislative task. In the example in the proceeding subsection, the Legislature specified alternative mental states for one element of the fraternity hazing statute and a different mental state for another element. S.C. Code Ann. § 16-3-510 (Supp. 2012). Applying such a statute requires determining whether the State has established the existence of each element, including its required mental state, beyond a reasonable doubt.

Unfortunately, however, the Legislature sometimes omits reference to a mental state altogether. Consider South Carolina's kidnapping statute:

Whoever shall unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry away any other person by any means whatsoever without authority of law, except when a minor is seized or taken by his parent, is guilty of a felony and, upon conviction, must be imprisoned for a period not to exceed thirty years unless sentenced for murder as provided in Section 16-3-20.

S.C. Code Ann. § 16-3-910 (2003). The statute nowhere specifies any particular state of mind, and it is easily conceivable to violate the literal terms of the statute while remaining totally unaware of any wrong doing. For example, locking a storage shed unaware of the presence of a child who is hiding in it would appear to be a "confin[ing of] . . . any other person by any means whatsoever without authority of law . . . ." Id. Surely this is not a result the Legislature intended.

The Legislature does have the authority to make an act or omission criminal regardless of fault. See State v. American Agricultural Chem. Co., 118 S.C. 333, 110 S.E. 800 (1922). Simply because the Legislature failed to include a mental state in a crime or within a particular element of a crime, the...