SHOULD THE MODEL PENAL CODE'S MENS REA PROVISIONS BE AMENDED?
Kenneth W. Simons
Boston University School of Law Working Paper 03-07
The Model Penal Code approach to mens rea was a tremendous
advance. The MPC carefully defines a limited number of mens rea terms,
firmly establishes element analysis in place of offense analysis, and
recognizes that the doctrine of mistake is part and parcel of the basic
analysis of mens rea.
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However, a revised Code could improve the drafting of the mens rea provisions
in a number of respects:
* Clarify how to distinguish result, circumstance, and result elements
* Simplify the definitions of knowledge and purpose
* Perhaps eliminate the category of mens rea as to conduct
* Clarify the fact/law distinction, and especially the distinction between
two types of mistakes of law-mistakes of governing law and mistakes of
legal element-that the MPC treats differently
* Clarify the meaning of the "reasonable person" test
* Clarify the definition of willful blindness
Moreover, more fundamental questions arise with the central concept of
recklessness. A reckless actor is one who must be aware of a "substantial
and unjustifiable" risk; are these independent or interdependent
requirements? What type or degree of consciousness is required? Of what,
precisely, must the actor be aware? Does a strict "consciousness"
requirement undermine the rule that ignorance of law is no excuse? And
should consciousness extend to "latent" knowledge that the actor
could call up if he were to consider the matter even for a moment?
Furthermore, does the MPC hierarchy always work? Is knowledge really always
worse than recklessness? Is recklessness always worse than negligence?
Should culpable indifference or a similar mental state be added to the
hierarchy? Are the MPC categories too cognitive, or too descriptive, or
too rigid? Finally, the conclusion examines some theoretical and pragmatic
implications of the analysis.
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Kenneth W. Simons Contact Information
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
Presentation and Publication Information:
To appear in Ohio State Criminal Law Journal, Volume 1, Number
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