Should the Model Penal Code's Mens Rea Provisions Be Amended?

24 Pages Posted: 24 Apr 2003  

Kenneth W. Simons

University of California, Irvine School of Law

Abstract

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.

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.

Keywords: mental state, mens rea, criminal law, Model Penal Code, reckless, recklessness

JEL Classification: K14

Suggested Citation

Simons, Kenneth W., Should the Model Penal Code's Mens Rea Provisions Be Amended?. Ohio State Criminal Law Journal, Vol. 1, No. 1. Available at SSRN: https://ssrn.com/abstract=397642 or http://dx.doi.org/10.2139/ssrn.397642

Kenneth W. Simons (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Room 3800H
Irvine, CA 92697-1000
United States

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