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Course: Wireless Philosophy > Unit 8
Lesson 4: Mens rea requirements in criminalizationMens rea requirements in criminalization
In this wireless philosophy video, Barry Lam (Vassar College, Hi-Phi Nation podcast) asks whether the criminality of a person’s action should depend on the person’s state of mind as they carry out the action.
View our punishment learning module and other videos in this series here: https://www.wi-phi.com/modules/punishment/. Created by Gaurav Vazirani.
Want to join the conversation?
- You can use Mens rea without reducing the chance of catching burglars.Just use a lie detector(1 vote)
- The problem with using lie detectors though is that theyre unreliable. Someone can easily pass a lie detector test if they know how to keep they're pulse steady, or they just simply have convinced themselves they haven't done it when they actually have.(3 votes)
Video transcript
(music) Hi, I’m Barry Lam, associate professor
of philosophy at Vassar College, and the producer of
Hi-Phi Nation, a show about philosophy
that turns stories into ideas. In this video, we’ll ask whether
a person’s state of mind as they act should matter in determining
the criminality of their action. There’s a strip of beach on an island near
Seattle that’s a beautiful place to picnic. But it happens to be at the
base of a private mansion, and there’s a small sign warning any
wanderers that they’re trespassing. On a dark summer night, two
strangers, completely independently, walked onto the property
just a minute apart. One was a tourist who wandered onto
the strip while taking a nighttime stroll along the public beach, and decided
to sit on a rock to watch the waves. The other was a burglar
who was there earlier, and returned under
the cover of darkness. The owner had night-vision
cameras on the private beach, and called the police, who arrested
both strangers for trespassing. Both strangers trespassed
on private property. But one of them -- the wandering
tourist -- had a very good excuse. It was his first night on the island,
and it’s hard to see the sign in the dark. He had no intention of trespassing -- he
didn’t even know he was on private property. His trespassing was an innocent mistake. But the wannabe burglar knew exactly
what he was doing and did it intentionally. On top of that, the reason he did it was to
gather information for a further criminal act. His trespassing was done with mens
rea, the Latin term for “guilty mind.” Many offenses are legally punishable
only if they are carried out with mens rea. This requirement reflects a powerful
moral intuition that was famously articulated as a principle by the 18th
century philosopher, Immanuel Kant. According to Kant’s principle,
to deserve blame for an action, you must do it with an
unethical state of mind. If you violate a moral rule
accidentally, unwittingly, or unintentionally, then
your action is blameless. What you did was regrettable and
unfortunate, but not reckless or malicious. You’re morally innocent. But if you can’t be blamed for your action, it
seems you shouldn’t be punished for it either. And according to Kant, blame
and punishment is tied to mens rea. If you don’t have a guilty
mind, you don’t deserve either. If the law focused solely on giving
people what they deserve according to Kant, the wannabe burglar should be
punished, but the tourist shouldn’t. However, when it comes to passing
criminal laws, things are not so simple. Consider it from
the state’s viewpoint. If we were writing an anti-trespassing
law, the easy part would be defining trespassing as entering onto private
land without the owner’s permission. But what if we wanted to
make sure the law only punishes the wannabe burglar --
not the wandering tourist? The best way to do this would be including an
additional requirement for criminal trespassing: that the person knows they’re entering
onto private land without permission. We might even require that they
intend to do something wrong there, like vandalize or
commit burglary. But writing these mens
rea requirements into the law means prosecutors must provide evidence
not only that a person is trespassing, but also that the person
knows they’re trespassing -- maybe even that they’re
doing it with other bad intentions. Without this extra evidence,
prosecutors can’t prove to a jury that the person
criminally trespassed. These requirements would probably
ensure that the tourist is set free. But it makes it easier for the wannabe
burglar to avoid punishment too. He just has to lie, and it's on the
government to prove him wrong. To avoid the problem of burglars
trespassing and then pleading ignorance, the state might decide not to write mens
rea requirements into the trespassing law. This would mean catching someone
on the premises without permission would be enough to
prove they broke the law. Ignorance or benign intent
would never be an excuse. Crimes written in this way
are called strict liability crimes. Strict liability helps solve the
problem of proving mens rea: now the state doesn’t have to! The wannabe burglar
can’t get off by lying. On the other hand, the tourist’s innocent
mistake will also count as criminal. Is this trade-off worth it? Many legislators think the question
of including mens rea requirements in our criminal laws is about
evaluating such trade-offs -- that it’s a matter of asking
ourselves which is more important: Easily prosecuting the
wannabe burglars of the world? Or ensuring that
innocent tourists go free? This means that whether the law requires
mens rea would vary from crime to crime, depending on things like what crimes we
want prosecutors to be able to prove easily, because of a perception that they’re
particularly widespread, for example. In the U.S. today, some crimes -- such as
kidnapping and murder -- require mens rea. Many others don’t. These strict liability crimes
include traffic violations, possession of illicit materials
like drugs or stolen goods, and many white collar crimes. But the Kantian view implies that
mens rea requirements aren’t negotiable. They aren’t a tool for
engineering public policy. It’s morally wrong to punish
someone who doesn’t deserve it, even if it advances some
socially good outcome. For the Kantian, prosecuting
someone who lacks mens rea is always morally
equivalent to scapegoating, or punishing someone
as an example to others. This doesn’t mean we
can’t use the criminal law and threat of punishment as a
tool to solve social problems. But it’s going to be a lot
harder to do so legitimately if the state is only allowed to
punish people who truly deserve it. What do you think: Should mes rea be a
requirement for punishment? (music)