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December 17, 2021


What exactly is intent?

Intention, more times than not, is a “catch-all” criminal charge. Why? Because you do not have to prove someone actually DID something, only that they were going to do something, or acted with intention.

So, the intent is not the actual doing of something, it is the mental preparation to do something. It seems rather odd, doesn’t it? Even a bit Orwellian, or for those in the know, a bit like something the 1920s Russian writer Yevgeny Zamyatin might have concocted.

Is it true that we can be charged with a crime by merely thinking about doing something? Yes and no. There’s more to the intent than the mere thought of committing an illegal act. But in some cases, not much more.

What is known as mens rea

A direct translation from the Latin, mens rea means “guilty mind.” What the prosecution must prove, beyond a reasonable doubt, is that the person in question had a culpable state of mind. For intent to be shown, a crime must happen intentionally. The person charged need not, necessarily, understand that their actions are illegal but must, as in Staples, v. United States, know that it is likely that their actions are illegal as stated in the judgment “as would alert one to the likelihood of regulation” (italics added for emphasis).

What is interesting in mens rea is that the court has to apply this specific mental state to each facet of the crime. It comes as little surprise then that crimes that are committed with intent typically induce more harsh sentencing.

The Model Penal Code

Because it was far too nuanced to prove general intent or specific intent, most states defer to the Model Penal Code or MPC. The MPC is a way to classify a person’s mental state, and therefore blameworthiness. There are four hierarchical states:

  1. Acted purposefully-the person acted to cause the result
  2. Acted knowingly-the person is well aware of the risk
  3. Acted recklessly- the person disregards the risk
  4. Acted negligently- the person is unaware of the risk but should have been aware given the situation

Intent, or mens rea, is a rather murky charge. How does the prosecution know what was going through a person’s mind at the time something happened? It seems that this can only be conjecture. Given that intent can be difficult to prove, there are many defenses.

These include mistaken identity, mental incapacity (including drug and alcohol intoxication), self-defense or justified behavior, duress, entrapment, infancy, and of course evidence to the contrary.

The difference, from a legal perspective, between intent and accident was most famously summed up by Supreme Court associate justice Oliver Wendell Holmes, Jr. in his1909 lecture entitled, Early Forms of Liability: “Even a dog distinguishes between being stumbled over and being kicked.”