Introduction

‘Actus non facit reum nisi mens sit rea’, (An act in itself is not culpable, unless
accompanied by a guilty mind) is the legal maxim that lays the groundwork for
criminal law in most legal systems, wherein mens rea is now a primary ingredient
in establishing the guilt of the accused.

Mens rea refers to some ‘blameworthy mental condition’ or ‘mind at fault,’ which,
when accompanied with an actus reus—the event that produces the proscribed
result—constitutes a crime.

The current definition of mens rea is a culmination of a vast history of laws and
practices which demanded the introduction of a mental element to establish
criminal guilt. Why is the mere commission of a morally wrong or repugnant act
insufficient to constitute a crime? Why is it necessary to consider the more abstract
concept of mens rea when determining criminal liability? How does this
requirement influence the assessment of guilt or innocence, and ultimately, the
punishment that follows? How did the need for mens rea come to be?

Thus, this essay seeks to answer such questions by delving into the need for and
importance of mens rea, while exploring the thoughts that went into the genesis
and evolution of the concept and its impact upon legal systems and criminal
jurisprudence.

The first section will focus on the historical evolution and significance of mens
rea in English law; the second will then seek to explain the moral and
philosophical thought behind mens rea; the third will briefly examine the role of
mens rea in establishing culpability and attributing punishment; lastly, we will
take a look at its need and impact upon modern society.
Research Methodology

a. Aim -

To understand the importance of mens rea and looking at its implications in both
modern and pre-modern jurisprudence.

b. Scope -

This paper is primarily limited to the notion of mens rea in Indian and English
Common law. It aspires to understand the moral and substantial reasons for the
evolution of mens rea and its implications.

c. Research Questions -

 How did the need for mens rea arise?

 What are the moral and legal implications of mens rea?
 How does mens rea lead to gradation of offences, and how is its impact on
punishment of offences justified?
 What impact might mens rea have on emerging technologies?

d. Mode of Citation: Chicago

1. The notion of Mens rea in early English law

The Deodand

To understand the need for mens rea, I believe it is necessary to examine the
antithetical. By highlighting the consequences of disregarding the mental state of
the perpetrator, we can better appreciate the value of mens rea in the legal system.

In early English law, prior to the existence of mens rea there was a gross
dependence on the actus reus. Punishment was often retributive, based on the harm
caused rather than the mental state of the offender, the neglect of which can be
exemplified with provisions such as the ‘Deodand Law’.

The ‘Deodand Law’ wholly ignored the notion of mens rea and attributed blame to
animals or inanimate objects that caused or occasioned the accidental death of a
human being1. The said animal or inanimate object would have to be forfeited to
the Crown as a punishment. In R v Eastern Counties Railway Co., for example, a
person drowned to death when a boat sunk because it was “too much laden with
turves”.2 The death was held accidental, and the boat, or its value was to be
forfeited to the king. In another case, a horse struck a person on his left breast,
causing him to die, and the horse’s value was forfeited to the king3. In both cases,
no one sought to examine the role of human negligence, leaving scope for the
misuse of this law to get away with orchestrated murder under the guise of an
accident, since there would most probably exist a bias in the investigative process
of acts that appear accidental.

In the United Kingdoms, the Deodand Law was abolished by statute in 1846, and
serves as a great example for highlighting the issues with adopting a legal system
that completely disregards mens rea. The deodand laws led to unjust outcomes and
allowed people to avoid blame through scapegoating objects and animals. There
have been several instances where the objects or animals accidentally cause the

1
ibid, s. 34-44
2
ibid, s. 25-33
3
Noyes, Anne F. (1946) "Early Development of the Term Malice Aforethought and Origins of Express Malice,"
Kentucky Law Journal: Vol. 34: Iss. 2, Article 5, 145
death of a person and human negligence is altogether ignored, holding no one
accountable for their fault, and causing economic losses to innocent owners.

Malice aforethought

There seems to be at least minimal consideration accorded towards the

categorisation of offences based on the state of mind in early English law.
Homicide, for example, could be broadly categorised into three groups- justifiable
(such as lawful execution), excusable (such as self-defence and accidents), and
felonious. Felonious offenses were associated with the notion of ‘malice
aforethought’, and punished with death, which might be seen by some to punish a
guilty mind. But in actuality, there existed no substantive meaning to the term, and
no such mental element was truly examined. ‘Malice aforethought’ was initially a
mere embellishment that was a part and parcel of felonious offences. 4 Notably, one
of the first instances of considering malice aforethought to be an actual element of
crime; perhaps the earliest recorded in English law, was seen in the case of one
Thomas Buckler5, a cafe owner who was indicted but later released on technical
grounds for assaulting and murdering a man. The King’s Bench draws an analogy
between robbery and murder, essentially solidifying the role of malice, a mental
element independent of the act, in cases of murder; saying that in the way robbery
requires “the act of taking feloniously”, murder requires ‘malice aforethought’.
It might seem that the felonious notion of robbery, too denotes a form of mens rea,
however, it must be noted that the act of taking feloniously is an illusory notion of
intent much narrower than that of malice, which includes multiple states of minds.
The former did not lead one to question the need for a guilty mind because the act
in itself established the guilty intention; but the latter differentiated between the
mind and the act by attributing a greater level of punishment to a blameworthy
mental state. Malice aforethought encompasses a broader spectrum of mental
states, including the intent to kill, recklessness, and depraved indifference to

4
Dostoyevsky, Fyodor, and Constance Garnett. Crime & Punishment: A Novel in Six Parts and an Epilogue. New
York: The Macmillan Company, 1922, Chapter V

5
Hart, H.L.A. Punishment and Responsibility. Oxford: Oxford University Press, 2008, 43
human life. It marks a significant departure from the simplistic view of crimes
adopted in most legal systems early on.

The recognition of mental intent, symbolised by the introduction of 'malice

aforethought' in homicide cases, was a turning point in criminal law. With the
development of the law, malice aforethought eventually evolved from just being a
phrase and a mere technical term to be an essential principle of law. It became the
basis for various gradations of homicide, including within it more degrees of
criminal responsibility. Mens rea now remains a key part of modern criminal law
and justice is served not just on the harm done but also on the state of mind of the
perpetrator. The shift from treating the act itself as paramount; to considering the
moral culpability of the offender ensures justice and proportionality in punishment.

2. Morality and mens rea

Modern society places great significance in free will; where autonomy and agency
are paramount indicators of the quality of life and the effectiveness of law.
Punishment has an odd relation to freedom. Punishment in a sense curtails
freedom, but it is accorded precisely because freedom exists. Punishment
presupposes blame, and blame arises from the autonomy of action. The
culpability hence arises not from the mere commission of an act but rather from the
misuse of one’s will—a conscious choice to act unlawfully. The law does not aim
to punish someone who had the misfortune of being involved in an event they had
no intention of participating in but rather the person who created the misfortune of
others willingly. The law also does not in any way desire to restrict punishment for
acts that are hideously immoral, but that calls for a special inquisition into
exceptions which we will explore later in this paper.6

6
STO v. Ajit Mills Ltd., (1977) 4 SCC 98, see also J.K Industries Limited Etc. Etc. v. The Chief Inspector of
Factories and Boilers and Ors. Etc. (1996) AIRONLINE 1996 SC 1129
Morality is contingent on various societal and literal factors. An act that is
seemingly the same may be as different as night and day depending on the context,
societal values, and various other factors. Let us understand through an illustration
given by P. S. A. Pillai, with some additional scenarios:

Firstly, let us say that A steps on B’s foot in a crowded street by mistake. B
will, at most, suffer from momentary frustration and annoyance. B would then
most likely accept an apology graciously. On the other hand, if A were to step
on B’s foot deliberately, B would most likely retaliate in a much more
aggressive manner than in the first scenario, and justifiably so. What if A was a
blind person or a toddler? Assuming B to be a stellar person, he would most
likely apologize in turn or walk away without the slightest hint of frustration.

In all three scenarios, the same act has been committed, but with differing levels
of moral culpability. In the first scenario, it is indeed A’s fault that B got hurt, but
being an accident, B merely expresses some dissatisfaction. On the other hand,
when the same act was committed intentionally, B can be seen reacting with
hostility. Lastly, when A could have had almost no malicious intent, he was treated
amicably by B.

It is a moral fact at the core, that the state of mind of a wrongdoer attributes
varying levels of culpability to his actions. However, this line is blurred when acts
in themselves are of heinous nature. Ceteris paribus, if A’s acts led to the death of
B, there is bound to be significant backlash from society, regardless of A’s
circumstances. This is exactly what used to happen during medieval times when an
act itself was considered so heinous that the state of mind of the accused was
ignored completely, advocating for a retributive form of justice which failed to
consider the various intricacies of the human mind; arbitrarily punishing people
without actually attempting to understand the rationale behind their actions.

One might argue that acts of criminal nature are usually considered so because they
affect the society at large and the societal harm caused by these acts far outweigh
the need to consider the perpetrator’s state of mind. Some might also argue that
criminal acts must be deterred for the greater good, and that maintaining social
order is more important than upholding individual justice.

But we must then ask ourselves: Does A deserve to be punished the same way in
all three scenarios? Does a blind man who accidentally caused the death of a
person deserve the same punishment as a murderer who did so in cold blood?

It is a fundamental vice of man to fail, to falter and to sin. Nobody is perfect

enough to hold no blame for any bad in his whole life. But it is also man’s virtue to
forgive the faults of others, because how would society thrive when a mistake is
the end of everything? There obviously exist acts that are so heinous and tragic in
nature that one must ponder if it is truly necessary to hear the perpetrator out, if it
is possible to forgive; but we must understand that behind every wrong, no matter
how heinous, there can be reasons that attribute no guilt to the perpetrator. Why
must we punish someone who has committed such an act with no inherent fault
when he must punish himself by living with the thought of doing the same, his
mere guilt a prison in itself.7 Shouldn’t we then offer our hand as fellow human
beings who stand to falter in the same way? If he truly had no conscience, then he
would be tried not as man but as one deprived of reason, bound by the standards
of insanity rather than moral culpability. The concept of mens rea does not
provide an escape hatch to criminals to evade punishment but exists merely as such
a hand that ascribes punishment to those who deserve it and a chance at
reformation to the innocent. Even if the act is inherently wrong and deserves
punishment, a reduced punishment or rehabilitative measures might be taken for
people who have lesser moral culpability.

Interestingly, most of us already; or perhaps now understand that there exists a

significant difference in the blameworthiness and moral culpability of the accused
in various scenarios, and that a litmus test of innocence is not feasible. The history
of criminal law and moral and philosophical works have substantiated those
believes; and consequently, mens rea is now an essential ingredient of criminal law
in most legal systems.

7
Salter, Herbert Edward. Records Of Medi æ val Oxford. Рипол Классик, 1912, 44
It must finally be noted that there exist exceptions that impose strict liability upon
the accused where mens rea does more harm than good and is thus held irrelevant
in determining punishment. Such as offences related to minors, statutory rape,
possession of narcotics, public health offences, environmental and economic
matters, etc. This is due to the nature of such offences, where proving the mens rea
may prolong legal proceedings or the societal risk in being lenient in such cases. 8
Presumption of mens rea is required when it might be impractical of the
prosecution to prove the mens rea, such as in cases of transferred malice 9; or in
cases where social protection and public safety are in question, and so on. 10
Through the passage of time, mens rea has been refined; minimizing its
shortcomings through introducing both exceptions and additions, becoming a
strong cornerstone of criminal jurisprudence.

3. The impact of Mens rea upon culpability

The term mens rea includes various levels of culpability, and for convenience, let
us use the previous illustration but switching the act of stepping on the foot with
stabbing.
 If A walks through a crowded street with a kitchen knife in his hand and
ends up stabbing B; he has knowledge- the awareness of the consequences
of an action;
 If he runs at B and stabs him straight in the heart, he has intention- the
deliberate desire to bring about a prohibited outcome; If he swings around
the knife dancing in the crowded street, he was reckless- foreseeing the
possibility of harm but proceeding with the act regardless;
 And if he carried a sheathed knife through the crowd, but forgot to secure it,
causing B to be stabbed, he was negligent- failing to meet an expected

8
Union of India v. Ganesh Das Bhojraj, (2000) 9 SCC 461
9
Salter, Herbert Edward. Records Of Medi æ val Oxford. Рипол Классик, 1912, 14
10
Hart, H.L.A. Punishment and Responsibility. Oxford: Oxford University Press, 2008, 12
 standard of care that a reasonable person would exercise in the same
situation.
 If a toddler, or someone incapable by law stabbed B in the very crowd, he
would be deemed to not possess any mens rea.11

The law provides for various scenarios to ensure that an innocent person is not held
liable for acts that they had committed in extreme situations or situations wherein a
wrong act might be done without true moral blame.12

There also exists a consideration towards human nature and the natural law, the
most basic of which is the preservation of one’s own life and interest. This leads to
the need for private defence.13

The defences used against offences too rely on mens rea to a great extent. In the
aforementioned scenarios, for example; the legally incapable, such as children
(doli incapax), legally insane or involuntarily intoxicated people, are exempted
because they are deemed to not be capable of possessing mens rea. Private
defences exist because the intent is to preserve oneself and their property, not to
harm others. Similarly, there exist individual exemptions for offenses where the
requisite state of mind might differ from the others.

These categories are hierarchical in nature, meaning that an act, initially

categorized as a lesser offense due to its mens rea, can evolve into a more serious
crime as the mental state or intent of the offender shifts 14. Thus, an act that begins
with a lower level of mens rea, such as negligence, may escalate to one with higher
culpability, like recklessness or intention, resulting in a corresponding increase in
punishment.

11
Bhartiya Nyaya Sanhita, s. 20-24, 2023
12
Shankerlal Kacharabhai v. State of Gujarat, 1964 SCC OnLine SC 131, see also R v Saunders (1573) 2 Plowd
473
13

14
Sutton, T. (1997). The deodand and responsibility for death. The Journal of Legal History, 18(3), 44–55.
4. Impact of mens rea on Modern society

The Law and Society

As we move from premodern emphasis on retributive justice to modern focus on

rehabilitative and reformative justice, it becomes even more important to ensure
that the law targets those who maliciously or recklessly disregard societal norms,
and not those who inadvertently cause harm with no fault of their own. In the
words of Hart, we must not treat the law as a mere ‘system of stimuli goading the
individual by its threats into conformity,’ but rather as a ‘choosing system,’ where
the law provides people with information about the repercussions of their actions,
and men as rational agents can then weigh these costs and make informed
decisions; making law a choice and not a coercion.15

Justice bolsters faith in the law and incentivises adherence to the same; because
when a man is free from the fear of being wronged, he will not wrong others. By
specifying the mental states that attract liability, the law leaves little room for
doubt. Man is a social animal, and he strives to be accepted by society. The clearer
the moral code of society is, the more he tries to conform to it; because man fears
ostracism. That clarity is ensured by telling him that he will be punished greatly
for his malice, Modern law differentiates between these acts and accords varying
levels of liability for each scenario, ranging from murder to grievous hurt and so
on.

15
Dyer, James. Reports of Cases in the Reigns of Hen. VIII, Edw. VI, Q. Mary, and Q. Eliz. Edited by John Vaillant.
Part 1. London: Printed by E. and R. Brooke, 1794, 69.b.
Need for Mens Rea due to Technological Advancements
In today’s society, the significance of mens rea is enhanced further due to various
modern problems. With technological advancements and heavy reliance on
complicated software and programs, it becomes important to ascertain the state of
mind of the accused. For example:

 Cybercrime: Laws must assess whether a programmer maliciously

furthered illegal activities or negligently allowed vulnerabilities that were
exploited, and if so, what punishment to give for the same.
 Artificial Intelligence: If Artificial Intelligence causes harm in the future,
the state of mind of the people in charge must be ascertained. Say A.I. is
used for driving, washing, cleaning, construction, or anything along those
lines; who is to blame if the A.I. Causes injury or death? The developer, the
branch head, the service provider, the owner? There remain many such
scenarios wherein there is room for mens rea to evolve even further.

There remains much to see about the modern implications of mens rea, but this
paper will refrain from delving too deep into the same to avoid theorising
excessively.
Conclusion

The concept of mens rea stands at the heart of modern criminal jurisprudence,
influencing the design and administration of justice by introducing fairness and
proportionality into the legal framework. By accounting for the mental state and
moral culpability of perpetrators, it ensures fairness in lawmaking and prevents
overreach that might hold the wrong people accountable. Mens rea categorises
offenses based on the state of mind, which in turn ensures proportionality in
punishment and prescribes appropriate remedies befitting of a person’s blame;
such as adopting a reformative approach for negligent offenses and a stringent one
for those with malicious intent.
In a world where individuals, particularly the youth, may in their naivety be
influenced by ideologies or technology to commit wrongful acts, the law must
strike a balance by punishing those with a malicious intent and offering
reformation to those deserving of a second chance.
The concept of mens rea is undoubtedly one of great necessity. It aligns with the
principles of fairness, morality, and justice, ensuring that punishment corresponds
not merely to the act itself but to the mental state behind it. By prioritizing the role
of free will and culpability, the concept upholds the very essence of law as a
rational and just system.