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Mens Rea

Modern Culpability Levels

Aside from their insight into the relation between mistake defenses and culpability requirements, the Model Penal Code drafters' greatest contribution in this area is their use of a limited number of defined culpability terms. This aspect of the Code's scheme has been adopted with variations in nearly every American jurisdiction with a modern criminal code, a majority of the states. Even in jurisdictions that still have not enacted a modern code, the Model Penal Code is of enormous influence. Judges rely upon the Code culpability definitions and its official commentaries in creating the judge-made law that the old codes require by their incomplete statements of offense culpability requirements.

In place of the plethora of common law terms—wantonly, heedlessly, maliciously, and so on—the Code defines four levels of culpability: purposely, knowingly, recklessly, and negligently (from highest to lowest). Ideally, all offenses are defined by designating one of these four levels of culpability as to each objective element. If the objective elements of an offense require that a person take the property of another, the culpability elements might require, for example, that the person know that she is taking property and that she is at least reckless as to it being someone else's property. In each instance, and for each element of an offense, the legislature may set the culpability level at the minimum they think appropriate either to establish liability or to set off one grade of an offense from another.

When an offense definition requires a particular level of culpability as to a particular element, it means that the required culpability as to that element must exist at the time of the conduct constituting the offense. (Culpability at the time of the result, rather than the offense conduct, is neither necessary nor sufficient. Changing one's mind after setting a bomb does not bar liability for deaths caused by the blast, if the intent to kill existed when the bomb was set.) This concurrence requirement, as it is called, reflects the law's interest in judging the culpability of the act rather than the general character of the actor. The required concurrence between act and culpability is implicit in the language of the Model Penal Code's section 2.02(2) culpability definitions.

Modern codes give detailed definitions of each of the four culpability levels. As the Model Penal Code commentary explains:

The purpose of articulating these distinctions in detail is to advance the clarity of draftsmanship in the delineation of the definitions of specific crimes, to provide a distinct framework against which those definitions may be tested, and to dispel the obscurity with which the culpability requirement is often treated when such concepts as 'general criminal intent,' 'mens rea,' 'presumed intent,' 'malice,' 'wilfulness,' 'scienter' and the like have been employed. What Justice Jackson called 'the variety, disparity and confusion' of judicial definitions of 'the requisite but elusive mental element' in crime should, insofar as possible, be rationalized by a criminal code. (Model Penal Code § 2.02 comment at 230 (1985))

Under the Code's culpability scheme, the objective building blocks of offense definitions are conduct, circumstance, and result elements (although many offenses have no result element). The culpable levels are defined slightly differently but generally analogously with regard to each of these kind of objective elements. For the sake of simplicity, the following discussion focuses on culpability as to causing a result, such as death.

Under the Code, the highest level of culpability is "purpose." A person acts "purposely" with respect to a result if her conscious object is to cause such a result. While the criminal law generally treats a person's motive as irrelevant, the requirement of "purpose" is essentially a requirement that the person have a particular motive for acting, albeit a narrowly defined motive. The requirement does not make motive generally relevant, but only asks whether one specific motive was present, such as the purpose to gain sexual satisfaction required by the offense of indecent exposure. Thus, "flashing" another in order to surprise or annoy would not satisfy the required purpose and would not support liability for the offense.

In contrast to "purpose," which requires the person's conscious object to cause the result, a person acts only "knowingly" if she does not hope for the result but is practically certain that her conduct will cause it. The antiwar activist who sets a bomb to destroy draft board offices may be practically certain that the bomb will kill the night watchman yet may wish that the watchman would go on coffee break and not be killed. The essence of the narrow distinction between purpose and knowledge is the presence of a positive desire to cause the result as opposed to knowledge of its near certainty. In the broader sense, the distinction divides the vague notion of maliciousness or viciousness from the slightly less objectionable callousness.

Most common law courts and modern codes make clear that a person's deliberate blindness to a fact does not protect her from being treated as "knowing" that fact. For example, it is a common case law rule that one who drives across the border in a car with a secret compartment but carefully avoids actually knowing what is hidden in it can be held liable for knowingly transporting marijuana if it can be shown that "his ignorance in this regard was solely and entirely the result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth" (United States v. Jewell, 532 F.2d 697 (9th Cir. 1976)).

The Model Penal Code resolves this problem of "wilful blindness" of circumstances in a slightly different way. Section 2.02(7) provides: "When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist." Thus, the smuggler is held to "know" of the marijuana if he is aware of a high probability that it is there. (Note that this standard requires something less than the "practically certain" standard that the Code uses when defining "knowingly" as to causing a result.)

In contrast to "knowingly," a person acts "recklessly" if she is aware only of a substantial risk of causing the result. The narrow distinction between knowledge and recklessness lies in the degree of risk—"practically certain" versus "substantial risk"—of which the person is aware. The distinction marks the dividing line between what we tend to scold as careless (recklessness and negligence) and what we condemn as intentional (purposely and knowingly). In a very rough sense, the distinction between purpose and knowing, on the one hand, and reckless and negligent, on the other, also appropriates the common law distinction between specific intent and general intent.

While knowing and reckless culpability focus on the likelihood of causing the result—"practically certain" vs. "substantial risk"—purposeful culpability pays no regard to the likelihood of the result. Even if the chance of killing another is slight, a killing is purposeful if it nonetheless is the person's "conscious object." This characteristic of the purpose requirement reflects an instinct that trying to cause the harm, whatever its likelihood, is more condemnable than acting with the belief that the harm will or might result without desiring it. The practical effect is that reckless conduct can be elevated to purposeful conduct if the person hopes that the risk will come to fruition. This characteristic of purpose also illustrates how specially demanding it is. When determining whether knowing or reckless requirements are met, a jury might logically deduce those culpability levels from other facts. They may conclude that a person "must have known" the certainty or the risk of harm if she knew this fact or that. A purpose requirement, on the other hand, requires the jury to determine a person's object or goal, a somewhat more complex probing of a defendant's psychological state. To uncover a "purpose," a jury may have to dig deeper into the person's psyche, her general desires and motivations. If a jury is conscientious in adhering to the proof-beyond-areasonable-doubt standard constitutionally required for offense elements, this may be a difficult conclusion to reach.

In contrast to acting "recklessly," which requires a person consciously to disregard a substantial risk, a person acts only "negligently" if she is unaware of a substantial risk of which she should have been aware. If it never occurs to a person that her conduct creates a prohibited risk, such as causing death, she can at most be held negligent in causing the death. Nor can negligent culpability be elevated to recklessness if the person is only cognizant of a risk of causing lesser injury. Absent a special rule, causing death while being aware of a risk of injury, but not death, will result in liability for negligent homicide, but not reckless homicide.

One might think that "negligence" has something to do with omissions. An omission occurs when one "neglects" to act. The terms seem to share a common root. Older cases sometimes suggest or assume such a connection, but it has long since been agreed that "negligence," when used to refer to a level of culpability, can apply as easily to a commission as to an omission. The crux of negligent culpability is the failure to perceive a risk of which one should be aware while doing either an act or failing to perform a legal duty. It is equally clear that one can have any level of culpability as to an omission, not just negligence. Where a parent fails to obtain needed medical care for a child and as a result the child dies, the parent may have been purposeful, knowing, reckless, negligent, or faultless as to allowing the resulting death. The parent may have failed to get medical care because she desired to cause the child's death; or, she may not have desired to cause the death, but she may have been practically certain that her omission would result in the death; or, she may have been aware only of a substantial risk; or, she may have been unaware of a substantial risk but should have been aware. Generally, the culpability requirements apply to omissions in the same way that they do to commissions.

The distinction between negligence and the three higher levels of culpability is one of the most critical to criminal law. A person who acts purposely, knowingly, recklessly is aware of the circumstances that make her conduct criminal and therefore is by all accounts both blameworthy and deterrable. A defendant who acts negligently, in contrast, is unaware of the circumstances and therefore, some writers argue, is neither blameworthy nor deterrable. While writers disagree over whether negligence ought to be adequate to support criminal liability, it is agreed that negligence represents a lower level of culpability than, and is qualitatively different from, recklessness. For this reason, recklessness is considered the norm for criminal culpability, while negligence is punished only in exceptional situations, as where a death is caused.

Recklessness and negligence share an important quality that distinguishes them from purpose and knowledge. The latter asks a specific empirical question. Did the person have the required purpose or practical certainty of causing the prohibited result? The culpability requirement of recklessness and negligence, on the other hand, require a normative rather than an empirical determination. The recklessness inquiry admittedly begins by asking whether the defendant had a particular state of mind—awareness of a specific risk—but then shifts to an inquiry into whether the disregard of that known risk was sufficiently blameworthy to support criminal liability. In the language of the Model Penal Code, the disregard of a specific risk is reckless and the failure to perceive a specific risk is negligence only if the disregard or failure to perceive "involves a gross deviation from the standard of care that a reasonable person would observe in the person's situation" (Model Penal Code § 2.02 (2)(c)&(d)). A jury can come to this conclusion only after making a judgment about what the reasonable person (the law's objective standard) would do in the situation, comparing the defendant's conduct to that of the reasonable person's, and then assessing the extent of the difference.

Further, it is generally understood, and intended by the Model Penal Code drafters, that the reasonable person standard to which the defendant is compared when determining recklessness or negligence is a standard properly adjusted to take account of the defendant's "situation." This may include not only the physical conditions but also the facts known to the defendant and even personal characteristics of the defendant. Such individualization of the objective reasonable person standard gives decisionmakers some leeway in making what is essentially a general blameworthiness judgment, one that is not possible in judging purpose or knowing. That such a general blameworthiness assessment is permitted in judging recklessness is made all the more significant by the fact that recklessness, recall, is the norm, the most common level of culpability in modern codes. The common law was much less likely to individualize the objective standard of recklessness and negligence, tending instead to ignore differences in education, intelligence, age, background, and the like. In contrast, it is the characteristic of a modern code to attempt to assess what might reasonably have been expected of the particular defendant given the "situation."

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawMens Rea - The Development Of Mens Rea, The Mens Rea–actus Reus Distinction, Modern Culpability Levels, Disagreements Over The Minimum Culpability Requirement