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Mens Rea: An Explanation

Mens Rea: An Explanation


Srishti Shrivastava
Second-year law student,
University of Mumbai Law Academy.


Mens rea is a Latin term which means ‘guilty mind’. It is the mental element of a person’s intention to commit a crime, or it is the knowledge that one’s action or lack of action that would result in a crime.

Mens rea enables the criminal justice system to distinguish between a person who did not intend to commit a crime and a person who intentionally committed a crime.

In order to convict a person accused of misconduct, a prosecutor must be able to demonstrate beyond a reasonable doubt that the suspect was actively and knowingly involved in a crime that harmed another person's life or property.

The term mens rea was stated in one of the writings of Edward Coke, an English jurist who wrote about common law practice. He advocated that “an act does not make a person guilty unless (their) mind is also guilty”.[1] This means that while a person may have committed a criminal act, but they can only be found guilty of criminal activity if the deed was done deliberately.

The law test of criminal liability is commonly expressed in the standard Latin phrase “actus reus non facit reum nisi mens sit rea”, which means that the act is not culpable unless the mind of that person is guilty. ‘Presumption of Innocence’ and the maxim ‘actus non facit reum nisi mens sit rea’ are considered to be the fundamental tenets of the Criminal Justice system in common law countries.[2]

The concept of mens rea was developed when judges began to realize that it is important that an act alone cannot create criminal responsibilities unless it is accompanied by the condition of defendant’s guilty state of mind.

Following are the two scenarios’;

There are two drivers who end up hitting and killing a pedestrian in the following two cases:

1. In this case, the driver never saw the person until it was too late, he tried his best to hit the brakes, but couldn’t do anything to stop the accident from happening and in fact ended up killing the pedestrian. But he will still be held liable in the civil court for monetary damages.

2. However, in another case, the driver was out looking for the pedestrian, and upon seeing him, he steered towards him, hit the gas pedal and slammed into him, killing him instantly.

Here the driver is criminally liable because he intended to kill the pedestrian, or at least he intended to cause him bodily injury.

Even though the pedestrian is killed in both the scenario’s (the outcome is same), though the intent of both the drivers was different, and their punishment will be substantially different as a result.

The motive is an indirect way to prove that if something was done intentionally or knowingly. It is described as a cause that helps in moving people to induce a certain action. For example, in the event that a defendant, in an attack case, can claim that he accidentally hit the victim and therefore did not have the necessary intention to attack. If the prosecution can show that the defendant made a pleading shortly before the alleged attack, that reason can, in many cases serve as circumstantial evidence and the defendant had no intention of beating the victim. Alternatively, the defendant can use the lack of evidence of motive as an advantage for prosecution as a "reasonable doubt" to get rid of any criminal liability.

A motive is not required to be proved in case of criminal prosecution. When it comes to determining the guilt of a criminal defendant, courts are concerned with a reason behind why the defendant committed the alleged crime but is more concerned with whether the crime was committed by the defendant. However, in other stages of a criminal case, the defendant’s motive comes into the picture, such as police investigation and sentencing. In detecting the perpetrators, the potential motive is often considered by law enforcement personnel. In case of giving a verdict, judges may consider the motive of a convicted defendant in order to either increase or decrease the sentence based on whether the convicted person had an avaricious motive or if his motives were honourable. For example, If the accused acted in order to defend his family.


In order to prove a crime, different levels of criminal intent are required. The levels of criminal intent can range from no intent (in case of strict liability which is considered to be a rare criminal act) to the level of intent which is required in order to obtain a death penalty in a trail.

Lower levels of criminal intent will help in getting a lesser amount of penalties for the committed crime. In case of a greater crime, a higher level of criminal intent must be proven to get the convicted sentenced.

1) Malice aforethought-

Malice aforethought is considered to be the highest degree of criminal intent, which is usually required to get the convict sentenced for a murder or death penalty. When a person has acted with malice aforethought, it is assumed that the person has intended to kill another person prior to taking that action. A person who has acted with malice aforethought is said to have acted with prior intent to carry out the same act.

2) Intention-

When a person does not form the intent prior to taking action (which would then constitute to malice aforethought) but still intends to do the criminal act, then it is said that the person has acted with intent.

So, in case a person gets into an argument with another person (who might also be a stranger) and in the heat of the moment pulls out a gun and ends up shooting the other person has acted with the intent to kill the victim. But, the killer in this situation did not form the intent to kill prior to the killing.

Manslaughter is generally defined as wilful murder of a person but in the heat of passion or some other provocation. Wilful "cold blood" murder would generally be charged with murder.

3) Knowledge-

If a person acts without a specific intent and commits a criminal act but was also aware of the result of his act and that it would be wrong under the law. For example, if a person fires a gun in a crowded place, the person may not intent to kill any person in particular but would be held to have the knowledge that death of a victim as a likely result of the shooter’s action.


Some of the criminal laws don’t require any mens rea or mental state to be present while committing a crime. Such strict liability laws only apply to certain acts where there is a desperate need for a criminal punishment regardless of the intent, usually those where minors are involved.

The best illustration, in this case, would be the statutory state laws which help in punishing the act of having sex with a minor even if the perpetrator honestly thought that the minor was of the age of more than 18 years. These laws often seem to be harsh, but they are considered to be very important for the protection of the minors.


It was found that the defendant, in order to threaten Mrs. Booth who was her rival for the affection of Mr. X, put the burned paper in Mrs. Booth's mailbox and caused the deaths of two of her sons. She had claimed that she had no intention of killing her but expected death or serious injury as the very likely result of her actions. Judge Ackner informed the jury that the defendant was guilty if she knew that it was very likely that her act would at least cause serious bodily harm.

Although Lord Hailsham LC stated that “he did not think that foresight of a high degree of probability is at all the same thing as intention, and it is not foresight but intention which constitutes the mental element in murder, in the House of Lords by a majority of 2-3 people it was held that foresight on the part of the defendant that his action is likely, or highly likely to cause death or grievous bodily harm which was sufficient men’s rea for a murder to take place.[3]


Mens rea or the mental element in crime is considered to be one of the most important concepts of substantive criminal law. The concept of Mens rea or guilty mind, is based on the assumption that a person is in full control of his behaviour and to choose between the alternative course of conduct.

Crimes can have a deterrent effect on society, but they also ensure that certain irregularities are dealt with punishable when morally necessary. To ensure this, the courts have developed principles that circumvent the violation of the randomness principle to ensure that strict liability is possible by law.

Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.


[2] Section 84 of the Indian Evidence Act, 1872
[3] Hyam Vs. DPP (1975) Jan AL 55