The Element of Mens Rea in Recklessness and "Criminal Negligence"

Abstract

A fundamental principle of Anglo-American criminal law is that for conduct to be punishable criminally, there must be a concurrence of criminal intent, the mens rea, and of a forbidden act, resulting in a proscribed harm. Based on the premise that criminal sanctions. should not be imposed on those who act involuntarily, or without the required criminal intent, the converse of this rule is that criminal sanctions should fall only on those who knowingly violate those rights of others which the state protects. The desirability of requiring mens rea represents an ideal, as shown by the fact that the element of criminal intent has been abrogated in the strict liability offenses. One accepting the desirability of continuing mens rea as an element of criminal offenses is hard put to find a rational basis for the concept that homicide resulting from negligent conduct alone suffices for criminal liability, and thus for the concept of involuntary manslaughter. The difficulty stems from a clash between the desire to continue the requirement of criminal intent, with the definitional inconsistencies flowing in the wake of the terms negligence and involuntary, which imply an absence of intent or of even a mental awareness that a risk has been incurred.