Mens Rea Made Cool (common law)

Hip-Hop Artist

Elegant Young Handsome Man

Model with Green Hair

Disco Punk

Common law mens rea standards are a lot less organized than the MPC. But since many crimes that you will learn for class and the exam still use common law terms it’s important that you know how the MPC and common law terms relate.

There are about six common law mens rea terms. Let’s look at each of them through the lens of the common law and in relationship to how they equate to MPC mens rea terms.

“Specific Intent” & “With Intent to”

“Specific intent” and “with intent to” are both common law mens rea terms. Like “purpose” under the MPC, the specific intent mens rea for a crime like burglary under common law would require that a defendant enter a building intending to commit a felony while inside. Notice that merely entering a building isn’t enough. The defendant must specifically intend on or have the purposeful or aim of committing a felony while inside.

To keep things interesting the common law will also use “with intent to” when describing the same mens rea requirement that the MPC calls purpose. In a case or on an exam your role is to be on the look out for either the common law or MPC terms relating to purpose so that you can apply the appropriate level of mens rea.

“Intentionally” & “Willfully”

Another pair of common law mens rea terms are “intentionally” and “willfully”. Both terms actually relate to the first two MPC levels of mental state; “purpose” and “knowledge”.

Here’s how this works. Under the common law, “intentionally” can either mean that the defendant has the purpose to cause a specific harmful outcome or it can apply to situations where the defendant does not intend but is aware of the harm that could result. As you can see, under the common law, “intentionally” can sometimes dress up like the MPC’s purpose and at other times dress up like what the MPC would consider “knowledge”.

Then there’s “willfully”. Like “intentionally”, willful conduct has two meanings under the common law. Sometimes it means that the defendant intended the act and the harm or consequence. In this way it appears more similar to the MPC’s “purpose”. However, other times willfully means to act intentionally while aware of the likely outcome. In this way willful conduct appears more similar to the MPC’s knowledge.

I know it seems confusing but look at these conflicting definitions as opportunities to earn more points by making arguments from different perspectives. The more analysis made, the more points earned.

Maliciously

The common law also uses the term “maliciously”. It sounds like something out of a wicked horror film but it just means that the defendant personally realized the risk their conduct would cause but went ahead with the act anyway. You might notice that this is very similar to what the MPC terms as “reckless”.

General Intent

Lastly, the common law uses a term called “general intent”. General intent is on par with the MPC term “reckless” as well. The difference between the common law’s general intent versus specific intent is that if battery were a general intent crime it’s enough to commit the act of swinging the club and hitting a person to satisfy the general intent requirement. However, if battery were a specific intent crime you would have to not only commit the act by swinging the club but you would also have to intend the harm or the consequence. Fortunately for victims, battery is a general intent crime and the party can make their case without knowing whether the defendant acted purposefully.

I think you can see now why the more modern MPC is favored by courts. But for the purposes of case law and exams you must know the mens rea definitions under both the common law and the MPC because the crimes you will learn and be tested on will freely use language from both approaches.

So that’s mens rea under the common law! Now that you’ve got the big picture, read your cases, listen in lecture and get practice analyzing mens rea with practice problems.