Introduction
It is a common practice in the United States and indeed most parts of the world for criminal prosecutions to be done to persons who have intentionally committed a crime. The understanding of actus reus and men’s rea touch on the core of this understanding because they deal with the analysis of two factors warranting criminal prosecution; wrongful acts and intentional deeds. Actus reus in Latin means “a guilty act” and denotes offenses to be punished under criminal law (Wells, 2010, p. 117). This concept can be analyzed in two ways because it involves acts of commission, such as murder, or acts of omission, such as negligent parenting. Either way, criminal law seeks to punish people who commit crimes against the law or acts which are not expected of them.
Men’s rea means the “guilty mind” when analyzed in Latin terms, but conventionally, it denotes the element of a crime which guarantees some form of punishment for actions that offenders do, knowingly (Wells, 2010, p. 117). This should however not be confused with acts of intention because, under proper criminal law, someone should not be punished for crimes that are beyond their sphere of control. For instance, if a doctor tapped the knee of a patient to warrant a reflex action in form of a kick, the patient cannot be held culpable, even though under criminal law the kick would constitute an offense. This is true, merely because it cannot be assumed that the patient had the malicious intention of kicking the doctor (and neither was he/she in the guilty state of mind when committing the offense). From this understanding, it is correct to note that men’s rea clearly constitutes the articulation of intent, and from human understanding, the intention is one of the most difficult things to quantify. These factors withstanding, this study advances the fact that men’s rea is difficult to understand when compared to actus reus. This fact will be established through the understanding of the difference between the two.
Lack of a Common Ground of Application
Most of the time, students and scholars like to establish a common application of actus reus and men’s rea, but from a practical analysis, there seems to be a lack of common ground for the application of both. The main reason for this observation is that generally, offenses have changed in a piecemeal fashion, and chances of applying a common rationale to best comprehend such offenses are very minimal. In understanding actus reus in this context, Hall (2008, p. 50) affirms that:
“The student might be covering an offense defined in modern terms, e.g., by the Criminal Damage Act 1971, or in obscure outdated language, e.g., in the Offences Against the Person Act 1861 or the definition of actus reus may arise from the common law, perhaps amended or augmented by statute, e.g., murder”.
When analyzing men’s rea, we don’t see much difference from the above example because there is also a lack of common ground of analysis as actus reus, because if a criminal is supposed to be prosecuted through an establishment of the intention to commit the crime, then that responsibility ought to be left to the jury and not a trial judge. However, there is the attribute of recklessness which is also to be determined when establishing a common ground of analysis, but the jury ought to be informed of this when determining criminal cases. This issue outlines the complexity of determining men’s rea because if we were to consider a situation presented by Geary (1998, p. 14) in Britain, stipulating that:
“Prior to the decision of the House of Lords in R v G [2003] 4 All ER 765, a case involving criminal damage would have involved a court in trying to assess whether the defendant was reckless according to the definition laid down in Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961. But now, following the abandonment of ‘Caldwell recklessness’, the issue has been simplified so that a court has to now concentrate on whether or not the defendant was aware of the risk in question”.
In this analysis, if we were to determine dishonesty as men’s rea, the court of law should have to consider two different scenarios; first, it would have to consider whether ‘normal’ people would have considered the offense by the defendant as dishonest and secondly, it would have to determine if the defendant had realized this perception (or not). Nonetheless, there are matters of fact which conventionally, the jury would have to determine, as is expected from the analysis of R vs. Gosh (1982) 2 All ER 689. These facts imply that there are different contexts in the analysis of the case, and trying to find a common ground for the application of men’s rea would be a futile exercise. Thus, when analyzing men’s rea, there is a high likelihood that students and scholars may come up with a distorted impression of criminal law.
However, a significant shortcoming identified by many scholars in coming up with the distorted impression lies in the fact that criminal law in its sense does not have consistency in applying objective and subjective elements of liability. Geary (1998) affirms this observation by noting that:
“Subjective elements test the judge’s understanding of the defendant, regarding material facts as he honestly believed them to be. There appears to be an absence of any underlying rationale and the offenses develop independently of each other. One can understand why Sir Henry Brooke (former head of the Law Commission) and many others wish for the codification of some if not all, of the criminal law” (p. 14).
From this analysis, it is correct to expect different interpretations of similar cases, and in some instances, established concepts from previous court rulings (which have prevailed for many years) to be controversially overturned through a different interpretation by a court of law. This scenario could be easily manifested from the House of Lords in Attorney General’s reference no.3 of 1994, in Britain, where a court of law reversed a court of appeal decision which disputed the doctrine of transferred malice, regarding a defendant who injured a pregnant woman’s baby, causing its death. Lord Mustil, who was a legal officer at the time, mandated to preside over the case, criticized the ruling, saying that it had no legal intellectual basis involving a fiction, despite the fact that criminal law review affirmed the contrary (Molan, 2006, p. 8).
Inconsistencies in Defining Intentions
It is a widely known fact that for a criminal offense to be established, actus reus and men’s rea ought to be established. Actus reus is easy to establish because it is as simple as evaluating whether the physical criminal act was evident or not. However, men’s rea determines the mental aspect of crimes, and it may not be easily determined by a court of law. In as much as the physical and mental aspects of crime is the most common difference between actus reus and men’s rea, the most important question is what is intention? And how is it defined? These questions compound the dilemma associated with defining men’s rea.
It is widely expected that in serious crimes such as murder, there would be a common application of determination of intention in crime, but sadly, this is not true (Leigh, 1982, p. 36). The difficultly in proving intention and just how the judge will direct the jury is a matter without clear definition, but from a blanket analysis, the intention would probably define the determination of a purpose or desire, although scholars, academicians, observers, judiciary, and commentators all have different interpretations of the concept (Molan, 2006, p. 10). This complicates the application of men’s rea, but as if the concept is not difficult enough to apply, men’s rea also has a component of ulterior intent, where it ought to be established that when a person commits a criminal offense, he has to have a related purpose in doing so (Molan, 2006, p. 10).
This means that, if a court of law was to determine intention in a criminal proceeding, it need not only establish that but prove that there was an ulterior motive in doing so. For instance, in the case of a random person breaking into someone’s house, a court of law need not only establish that the person had the intention of breaking into the house, willingly but also establish that the offender had the intention of doing so with an ulterior motive. If the offender probably broke in to shelter from the weather, it would mean a different thing as when the offender broke in to steal a stereo. It is therefore correct to note that in determining men’s rea, such a task may be complicated because intention and motive are not essentially synonymous to each other, as most people would think.
Since it is more difficult to determine men’s rea, juries are often given the privilege of determining this element, but the unfortunate thing is that most juries have a different interpretation of the concept (Molan, 2006, p. 10). Some juries only establish ‘purpose’ to convict a criminal but others have to establish ‘foresight’ as the probable consequence before they convict an offender. This further complicates the application of men’s rea.
Foresight
Even though men’s rea in literal terms means “the guilty mind”, relying on this interpretation in criminal law is a misguided concept because it is likely to lead to the realization of errors of analysis, since a defendant may be found to have men’s rea, even though he/she may have acted without the intention of committing an offense (Sistare, 1989, p. 119). Sometimes, a defendant’s act may exhibit men’s rea but the defendant may have committed the act without even being aware that men’s rea may come as a result of his/her action. The correct approach in this analysis would be to regard men’s rea as to the element of fault, which a court of law ought to prove before convicting a criminal (Molan, 2006, p. 10). Most often than not, this will involve proving a positive state of mind for the criminal, but in other cases, it may just be sufficient enough to prove that the accused failed to advert the offense; an action which should seem obvious to the ordinary ‘normal’ person.
However, the two most commonly analyzed aspects in men’s rea are ‘intention’ and ‘recklessness’, but for the two to be properly established, there has to be a determination of what the defendant may have seen when he/she was committing an offense (Lanham, 2006, p. 198). The biggest dilemma in this analysis rests on this fact because it is difficult to determine two things: what is this element that the defendant had to specifically foresee? And what degree of foresight must the defendant have foreseen for him/her to be proven guilty? This means that in the determination of men’s rea, different types of subjective analysis ought to be established before a criminal is convicted of a crime.
Since men’s rea is based on the intention to commit a crime, it is obvious to note that intention will be based on the defendant’s state of mind; meaning that a subjective approach ought to be established first. The rationale for this study, therefore, becomes quite clear because, from obvious understanding, it is quite difficult to establish ‘intention’ if there is no obvious evidence of the intention occurring in the first place. Even in cases where intention has been evidenced; if the possibility of an act constituting a crime may have crossed the defendant’s mind, it would still be insufficient to term the defendant guilty; meaning that the law has to have a high degree of foresight to label a defendant’s mind as having the intention to commit a crime.
Conclusion
Actus reus and men’s rea differ in the sense that actus reus denotes the physical element of crime but men’s rea denotes the mental aspect of crime. The two must be determined before a defendant is prosecuted; according to the principle of fair justice. This study however notes that it is much difficult to establish men’s rea since actus reus is a physical activity and can easily be evidenced by the naked eye. In this regard, this study shows that men’s rea is difficult to establish because there is no common ground of determining intention, since many situations present different scenarios of men’s rea, therefore leading to a distorted impression of criminal law.
In the same sense, men’s rea involves the element of intention and motive and it is difficult to establish the two since they are not synonymously related to each other. More difficult to understand is the fact that the degree of intention and motive to be established is variable and therefore, the law requires a lot of foresight to determine such. Comprehensively, it is correct to note that men’s rea is a varied concept and since not many instances where it is to be determined have evidence of it, it is increasingly difficult to determine its existence. In this regard, many people have varied interpretations of the concept and this is bound to create an inconsistency of judgments; probably causing subsequent injustices.
References
Geary, R. (1998). Essential Criminal Law. London: Routledge.
Hall, D. (2008). Criminal Law and Procedure. London: Cengage Learning.
Lanham, D. (2006). Criminal laws in Australia. Edinburgh: Federation Press.
Leigh, L. (1982). Strict and Vicarious Liability: A Study in Administrative Criminal Law. London: Taylor & Francis.
Molan, M. (2006). The Elements of a Crime: Actus Reus and Mens Rea. Web.
Sistare, C. (1989). Responsibility and Criminal Liability. New York: Springer.
Wells, C. (2010). Lacey, Wells and Quick Reconstructing Criminal Law: Text and Materials. Cambridge: Cambridge University Press.