Unit 10: Mens Rea (MPC)


  • Dressler 131-138

  • Nations (CP)

  • Flores-Figueroa (CP)

Key Terms: 

  • Legislative Intent

  • Specific Intent

  • General Intent

  • MPC definitions of Intent, Knowledge, Recklessness, and Negligence


There is potential for interpretive confusion when reading statutes with multiple material elements but only one mens rea term, as the statutory language is often ambiguous as to which elements the mens rea term should apply. One of the greatest developments in making mens rea understandable is §2.02 of the Model Penal Code (MPC), which creates a consistent framework for helping understanding mens rea language in statutes. Although the MPC is not binding unless formally adopted by a legislature, it has proven to be highly influential on criminal law and mens rea. §2.02 states that anything more severe than a violation requires some kind of mens rea, and that if a statute contains a single mens rea term, then that term distributes to all material elements of the crime (unless an obvious contrary interpretation exists). The MPC also states that, if no mens rea term appears, then a minimum of recklessness is required to establish guilt. Note that this rule does away with offense-level mens rea, and also reduces mens rea to four categories: negligence, recklessness, knowledge, and intent.

Intent, or purpose, has a different meaning depending on if it’s applied to a result or conduct element of an offense, or to an attendant circumstance. When applied to a result or conduct element, it is necessary that the result or conduct is the actor’s purpose. It is no longer sufficient, as it was at common law, that the actor merely knows that the conduct or result will occur. When applied to an attendant circumstance, however, intent can be satisfied by knowledge, or by subjective belief or desire.

Knowledge, when applied to a result element, is satisfied if an actor is aware with practical certainty that a certain result will occur. When applied to attendant circumstances or conduct, knowledge is satisfied if the actor is aware of the attendant circumstances, or that the conduct is of the type described. Controversially, the MPC sought to prevent willful blindness by stating that knowledge of attendant circumstances can be established by knowledge of a “high probability” that the circumstances exist, unless the actor actually believes it does not exist.

The MPC defines recklessness as a conscious disregard for a substantial and unjustified risk. A risk is “substantial and unjustified” if it is in gross deviation from the standard of a law-abiding person. Negligence is when someone should be aware of a substantial and unjustifiable risk, but is not. “Substantial and unjustifiable” risks are risks that a reasonable or law-abiding person would be aware of and avoid. This approach to negligence and recklessness treats the essential risky behavior as the same, and differentiates based on mental state.

The reasonable person as defined by the MPC is someone in the same situation as the actor, with similar physical traits. The MPC rejects considerations of hereditary and mental traits, however, but courts continue to have difficulty determining to what degree a “reasonable person” standard should be subjective or objective.

Additional concepts: Two particularly difficult concepts in criminal law are “specific intent” and “general intent,” in part because neither has a fixed definition. Although the distinction between the two was discarded in §2.02, it is still important to be familiar with. Historically, the two were often used to refer to offenses that don’t call for any particular mens rea beyond a culpable state of mind (general intent) and offenses that require a particular state of mind (specific intent). Consider, for example, a statute that criminalizes maliciously endangering someone’s life, and a statute that criminalizes intentionally endangering someone’s life. Assuming malice in the first statute is interpreted in the lay sense of ill will or an evil mind, the statute is a general intent one because it does not specify any mental state beyond a morally blameworthy one. So, if Alex stole the batteries from her neighbor’s carbon monoxide monitor, she would be guilty of violating the first statute even if she didn’t know she was creating a risk, because the theft was done with a blameworthy mind. The second statute, however, is a specific intent one in that it calls for a particular state of mind (namely, the purpose of endangering someone’s life). Alex would not be guilty of violating this statute unless she intended to create a risk. This usage of specific and general intent has lost prevalence as it has become common practice for statutes to contain specific mens rea terms.

Another use of “specific intent” is to refer to offenses where the actor must have a specific purpose or motive, or must be aware of certain attendant circumstances. All other offenses would be “general intent” offenses. Consider, for example, a statute that criminalizes possession of a firearm with intent to use it in a drug deal, and a statute that criminalizes possession of a firearm in a school zone. Because the first offense has as an element a particular purpose for the firearm, it would be considered a specific intent offense. The school zone statute, however, does not consider the actor’s mental state or what he knew, and thus would be considered a general intent offense.

Questions for Review:

Q1. A statute reads, “It is unlawful to intentionally fire a gun in public, and thereby injure a bystander.” Marcus, who lives near Wall Street and is tired of all the protestors, goes to the protest and fires his gun. Marcus does not want to hurt anyone, but rather to scare the protestors so that they will disperse. Unfortunately, his bullet strikes and injures someone. Marcus is charged with violation of the statute. Analyze whether or not you think Marcus is guilty under the MPC.

Q2. The MPC states that anything above a violation requires a mens rea of at least negligence, effectively eliminating the possibility of strict liability crimes. Do you agree that there shouldn’t be strict liability crimes? Explain.

Q3. The MPC states that when a mens rea term is not present in a statute, a minimum of recklessness is required. This means that negligence would be insufficient to establish guilt. Why do you think the MPC draws the line at recklessness? Why not include negligence, or draw the line at knowledge or intent instead?