Intent and Mens Rea

Using the law to prevent crime, even with rudimentary means such as deterrence, presupposed first of all that potential offenders knew what was forbidden so that they could choose to avoid it or not.

At the other end of the spectrum, if crime were spontaneous— committed by weak characters succumbing to temptation—then social reform promised little relief. Wholly opportunistic offenses were hard to anticipate and deter. At best, you could target-harden the environment against offenses—whether impromptu or planned.⁵⁰ Between such extremes of total determinism and utter fortuity, deter­rence and prevention relied on potential offenders pondering their options before executing them and, it was hoped, concluding that— all in all—the anticipated crime did not pay.

Intent, liability, responsibility, and prevention were intertwined. Crimes heavily determined by strong natural urges (incest, sod­omy, debauchery, baby snatching, sometimes bestiality) were often considered less blameworthy than those committed with intent.⁵¹ Blaming social, biological, or other deterministic forces for crime lessened individual responsibility.

Many, possibly most, debates over crime have concerned whom or what to hold responsible. At one extreme, at least in the common law world, strict liability punished all harm caused regardless of why or how it came about. That was social utility speaking. At the other, only harm that was both intended and actually carried out was penalized. That was justice making itself heard. But many actions lay in between: the accident befalling in a moment of inattention, the killing that resulted even though just a beating was meant.⁵⁴ Intent, strengthening responsibility for acts at one extreme, and the insanity defense, removing responsibility altogether at the other, were opposing pendants, stretching the continuum of behavior— willed and involuntary—in opposite directions. A focus on mens rea sought to mediate the two extremes, punishing transgressions, but only when the requisite intent revealed moral culpability.⁵⁵ Was society liable for crime, as the Enlightenment philosophes argued, because it created the poverty that sparked delinquency? Or were vagrants the authors of their own misery, spongers on society, and therefore to be treated harshly by the law?⁵⁶ Most agreed that no one was liable for actions they had been forced to perform under duress, therefore not their volition.

The insanity defense amplified such considerations: In what frame of mind were offenders not culpable? Incapable of intent, neither the young nor the mad nor eventually animals were guilty. Roman law assumed that insanity exculpated crime.⁵⁷ In the thirteenth cen­tury, the English jurist Henry of Bracton exempted infants and the mad from culpability, and insanity became grounds for granting felons royal pardons. By the mid-1700s, acquittal by plea of insan­ity was becoming common in England.⁵⁸ In 1800, after George III was attacked by an obvious lunatic, the law was changed to ensure that defendants who successfully pled insanity were committed to an asylum, not released, as they formerly were.⁵⁹ Having been a get- out-of-jail card, the insanity defense now led to life-long lockup. Over the following years, the burden of proof shifted back and forth between prosecution and defense. The M'Naghten rule in the 1840s was the result of Queen Victoria's displeasure when the assassin of her prime minister's private secretary pled insanity. It required the jury to assume the defendant was sane unless proven otherwise. The US Model Penal Code of 1962 shifted the burden to the prosecution, which had to prove a defendant not insane if the issue were raised. That decision was reversed in 1984 after public outrage when John Hinckley, President Reagan's would-be assassin, was judged not guilty because insane.⁶⁰ Today the insanity plea is used only sparingly, and those who succeed rarely see freedom again.

Intoxication ran a similar course. The Greeks increased fines for drunken assaults, but the Romans considered intoxication reason to punish less harshly.⁶¹ Yet overinebriation could also be a double­edged sword: both a crime on its own and an exacerbating factor in other offenses.

As intent was increasingly taken into consideration, the range of offenses broadened from acts to inclinations. A crime intended ren­dered the offender clearly blameworthy. Even a dog, as Oliver Wen­dell Holmes put it, can tell the difference between being stumbled over and kicked.⁶³ Intent distinguished such actions from accidents and from acts that—though not fortuitous—were not premeditated or planned. The offender's mens rea, the intent, determined the nature of the act. Without a culpable mens rea, an act could not be a malum in se.⁶⁴ At the other extreme, intent alone—even without much of an overt act—could be a crime in itself, as with treason, conspiracy, and inchoate offenses. Someone who had no motive for a crime or refused to admit one became an enigma.⁶⁵ A concern for the mens rea behind the act thus deepened the problem raised by Locke and Kant on how inner and outer states corresponded. Being good meant more than acting lawfully. It required also wanting to do so. Taking mens rea into account, offenses arose when an inner bad intention correlated with an outer transgression. Without bad intent, the act—though harmful—might be legally irrelevant or even innocent. Conversely, with evil intent an otherwise legal act could be actionable.

Absent an intent to commit a crime, often none had occurred. With the concept of holy sin (aveirah lishmah), Jewish theology rec­ognized that intentions decided the nature of the act, which could be blameless however seemingly heinous.

Larceny was once defined as the simple possession of stolen goods, whether the accused had stolen them or not. But in the thirteenth century, Bracton, inspired by the Romans, insisted that there be an animus furandi as well, an intent to have stolen. In the late eigh­teenth century, larceny began to be conceptualized in terms not of having the goods, but of having intent. Those who took lost money thinking that the owner was unidentifiable were innocent, but if they believed the owner could be traced, they were guilty of lar- ceny.⁶9 Depending on what transpired in the offender's mind, the very same act was criminal or innocent.

Like modern strict liability, early law tended to punish the act regardless of its motives, if any.⁷³ In the Homeric epics, a homicide's intentionality did not influence the treatment of the killer. The same restitution or punishment applied, regardless of motive.⁷⁴ In a case of death by javelin at a fifth-century BCE Greek sporting event, much effort went into explaining how the victim, by running into the jave­lin's path, caused his own death and none on distinguishing between accidental and intentional acts. Roman law punished attempts as though they were accomplished crimes.⁷⁵ Focused on compensation for harm, early Germanic law was likewise uninterested in intent or in deterring future offenses. Regardless of why, the act had caused damage, and that had to be made good. No more composition was paid for an intentional harm (instigating a serf to kill someone) than for one caused negligently.⁷⁶ The authorities sought above all to quell blood feuds, persuading defendants to accept compensation instead. They also hoped to present themselves as firm enforcers of laws appli­cable to all. Not surprisingly, they were reluctant to get caught up in the niceties of intent. Ensuring restitution for victims, who would otherwise be avenged, was their immediate concern.

Before the twelfth century, criminal intent was not the main focus of law enforcement. The Leges Henrici Primi, a compilation of English law from the early 1100s, stated that even if an archer killed inadvertently, he should pay, for “he who commits evil unknow­ingly must pay for it knowingly.”⁷⁷ In the sixteenth century, English common law punished only acts, not intent. “The imagination of the mind to do wrong, without an act done, is not punishable in our law, neither is the resolution to do that wrong, which he does not, punishable, but the doing of the act is the only point which the law regards; for until the act is done it cannot be an offense to the world, and when the act is done it is punishable.”⁷⁸

This disregard of intent came out in that feature of early law per­haps most perplexing to modern sensibilities: the punishment of animals. In the Code of Hammurabi, oxen that gored people were stoned. Ancient Persian laws specified amputation of ears, legs, or tails for dogs that bit. Hebrew law condemned homicidal wild ani­mals to death.⁷⁹ Plato's laws prosecuted animals that shed human blood. Even inanimate objects that harmed (lightning bolts cast by gods excepted) were treated similarly.⁸⁰ Deodands were things that having caused death were forfeited to God via the king—carts, boats, mill wheels, cauldrons, and the like. Since the act, regardless of intent, was what mattered, why not hold liable a pig that ate a baby or a horse that threw its rider? Or block up a well in which someone had drowned?⁸¹ Even here, however, intent at times crept in. For damages done between fighting animals, the Romans pun­ished the one that started the scrap. The Roman jurist Ulpian con­sidered animals subjected to men's sexual advances partly culpable if they had not run away. And raped animals were duly punished—a burro in sixteenth-century Seville was hanged, his sodomizer burned.⁸²

And yet the distinction between the accidental and the intended was intuitive enough to have long been given voice in statute. Though early law may not have distinguished clearly or consistently between deliberate and accidental acts, it did so often. In the Old Testament, someone who killed accidentally could seek refuge in one of three cities, but intentional murderers could not.⁸³ Both the Old Testament and Middle Assyrian law treated extramarital sex dif­ferently according to intent, depending on whether it was adultery or rape. Both were killed if willing adulterers, but if the woman had been coerced, only the man was.⁸⁴ Ancient Chinese law also classi­fied crimes according to motivation and recognized intentional mur- der.⁸5 Both Plato and Aristotle distinguished between premediated and unplanned homicide, but Plato demanded that the attempted murderer be tried like those who succeeded.⁸⁶ Athenian law sepa­rated premeditated from accidental killings, with intent required for murder and unintentional homicide punished only by exile.⁸⁷

Roman law distinguished culpa (unintentional harm) from dolus (intentional harm). The Twelve Tables singled out numerous inten­tional acts for sanction.⁸⁸ A thief caught trespassing at night, his intent to rob thereby evident, could be killed on the spot. Uninten­tional acts were discounted: if a weapon “escaped from the hand” of the offender rather than being thrown, sacrificing a sheep suf­ficed for expiation.⁸⁹ Sharia law distinguished willful from acci­dental homicide. Germanic law, too, changed in this direction. Seventh-century Visigothic law had moved beyond early precedents to distinguish between culpable and other killings. And in ninth­century Wessex, someone who killed a man inadvertently with a spear carried over his shoulder paid the wergeld but not a fine.⁹⁰

The resurgence of Roman law in the early Middle Ages helped emphasize intent as constituent of crime, as did canon law. Medi­eval theologians assimilated crime once again to the concept of sin, where both act and its motivation mattered. In the fourteenth cen­tury, the Neapolitan jurist Lucas de Penna argued that just as sin could be merely a thought, so the crucial element of an offense was its intent, which the act itself merely indicated.⁹¹ Canonists agreed: without intent, no guilt. With Bracton in the thirteenth century, intent became integral to defining crime. Someone who killed by misadventure was to be acquitted. New techniques adjusted the legal outcome to the criminal's intent by expanding the royal par­doning powers. Even if offenders had acted without intent, the law still found them guilty, and they forfeited their goods. But the king could now pardon them, sparing their lives.⁹²

That not every similar act was also legally equivalent became broadly accepted. Those who killed inadvertently or by accident dif­fered from those who acted on purpose, deserving less punishment, if any. But to show mercy where it was due, the authorities had to probe the accused's psychic state. Scandinavian law of the twelfth and thirteenth centuries distinguished conscious “acts of hand” from unintended “handless risks.”⁹³ Taking jurisdiction over homi­cides in the early twelfth century, the English Crown categorized them as culpable, excusable, and justifiable. Killing without intent or in self-defense (though defined very restrictively) was excusable or justifiable.⁹⁴ Juries often acquitted defendants who did not, they thought, merit death for killing. Conversely, as of the late four­teenth century, the English king was forbidden to pardon killings committed with malice aforethought. Nor, as of the fifteenth, could he pardon mala in se.'9' Not just the act but an evil intent, too, was now required for a felony to have occurred. By the late sixteenth

century, the distinctions had emerged between murder and man­slaughter and between voluntary and involuntary homicide— dependent on the motives animating the act.⁹⁶