Mens Rea - what does your conscience say?

[Fussygus]

Mens rea, the intenting mind, actus rea, the act. Simple concepts to consider but significanty difficult to comprehend…when and how to apply these ideals of law.

When a child takes a candy that he knew was intended for his little sister how does this reflect on the idealized institution that is guilty act and guilty mind? Has his taking the candy resulted in a loss or harm, the act? The sister was denied her candy. Did he know it was hers and in tune take it anyway? He knew it wasn’t his because he saw his sister receive it from their Granny, guilty mind.

So what if it isn’t so clear cut? What if he didn’t actually see his Granny give the candy to her? What if he found it on the floor? There is still the guilty act, because it was someone else’s, but is there a corresponding guilty mind?

One need only look so deep as to consider that a reasonable person would pause, even if it is just for a moment, when faced with the candy on the floor. Wouldn’t a reasonable person’s first reaction be to look around? To look around and see where it came from, see if anybody else appears to be looking for it. They would obviously know that the candy wasn’t theirs (unless of course they dropped a similar candy in the general vicinity). Is the mind not already guilty at the moment it looked around? Is the failure to not inquire about whose candy it is not an indication that they would prefer to not know, that they would rather claim it is theirs now. That they would rather ignore the obvious sister in the corner crying that she lost her candy rather than investigate whether the candy they picked up off the floor might be hers.

Is saying “I didn’t know it was her candy” be sufficient when confronted with the claim the candy was his little sisters? Would Dad forgo him from punishment? Should Dad forgo him from punishment? How could the boy respond?

· “I didn’t know it was hers!” (denial of culpability)
· “So, finders keepers!” (denial of duty to protect her property right)
· “It’s mine not hers!” (unlawful claim of property)

Unlawful claim of Property – here he is lying, he is telling Dad it is his when it is not. What is the worst sin, stealing or lying? When did your parents get most furious with you? Not when you did something wrong, it was when you lied about it when confronted on the issue. It is dishonourable to lie.

Denial of duty to protect her property right – he may honestly believe it was his candy, and has likewise claimed as such. He has remained in honour, as he as told the truth. This is an entirely reasonable position….BUT upon being provided evidence that the candy was in fact not his but his sisters, would it be honourable to maintain such a position? It would if he accepted the undeniable evidence and admitted his fault, but to maintain a position that is clearly against all logical conclusion is dishonourable and is only slightly less egregious than to lie.

Denial of Culpability – he is pleading ignorance to the fact it was hers. He is not denying he ate the candy, nor is he claiming it was his, he is simply stating he thought he could eat it. Is this an honourable response? It certainly is. What does your conscience say to do afterwards? Regain your honour! Replace the candy! If you don’t do it (or at least offer to do it) have you have not completed the cycle of honour. You have not honoured your sister by making her whole again.


As a child grows up they don’t inherit knowledge of their duties and obligations within mankind, they gain them through the experiences of their lives. You learn that benefits carry with them duties and vise versa, that nothing is for free. Have a beer, expect the duty to pay for it; tend a garden, gain benefit of food; a benefit of shelter comes at the duty to cut the trees to build the cabin; accept a duty to treat people fairly and honestly and you may gain a friend and ally. There is no free, you must alienate part of yourself in order to gain the honour or others.

The Canadian bill of rights guarantees everyone to inalienable rights. It doesn’t say they are unalienable. Everyone has guaranteed rights which they may choose to alienate.

Ask for a favour, and how does the conscience of man treat this? Is it not within the conscience of a reasonable man to consider the acceptance of such as necessitating an associated duty, a duty of reciprocity? Similar to finding the candy, where the conscience knows when something isn’t right, that equity has not been served.

If someone buys you a round at the bar, you don’t need a lawyer or judge to tell you what is right you just know what is right. You know how to preserve equity, how to preserve your honour. You were offered and received a benefit, nothing is free everything has a cost. It is not an excuse to say you didn’t owe, you always owe in some way, the extent of which and the amount of which are to be what the parties think is fare. You will not be saved judgment simply because you didn’t know or understand.

A defence that claims the lack of mens rea will only be successful in a case where the damage cannot be undone, and you could not have possibly looked around the room to doubt your actions. If the damage can be undone, then the first step is to make the other party whole again, by repair, replacement, or other means. Whether you have in fact made the other party whole will be found in the response to your actions. Whether you have done enough.

Fuzzy

[davids]

Mens rea, the intenting mind, actus rea, the act. Simple concepts to consider but significanty difficult to comprehend…when and how to apply these ideals of law.

A defence that claims the lack of mens rea will only be successful in a case where the damage cannot be undone, and you could not have possibly looked around the room to doubt your actions. If the damage can be undone, then the first step is to make the other party whole again, by repair, replacement, or other means. Whether you have in fact made the other party whole will be found in the response to your actions. Whether you have done enough.

Fuzzy

It is an interesting subject. I am not sure what you mean by the phrase "A defense that claims the lack of mens rea will only be successful in a case where the damage cannot be undone." Mens rea has nothing to do with whether the effects of one's actions can or cannot be undone. It has to do with whether one had the requisite mental state, required to be convicted of a certain crime. In law schools they talk about a sliding scale of mens rea, ranging from knowing to negligent to reckless to intention and then there is specific intent - that one intended not just the act but the specific result.

Historically, a crime involved an act, a mental state, and a victim. Sometimes the victim is "the people." These elements each had to be proven to the right burden of proof - beyond a reasonable doubt. In your example, if one had facts sufficient to conclude that the kid knowingly took the cookie, that might suffice to convict if the statute calls for knowing as a mens rea.

But what is knowing? Knowing that one is picking up a cookie is not a criminal mindset. Having a mens rea that low on the sliding scale, where it is falling off the end, is effectively having no mens rea at all as it punishes non-criminal modes of thought and the actions attached to them.

If knowing means knowing that it might belong to someone else, or knowing that there is a law that criminalizes picking up cookies, then you have a slightly higher standard, but not much.

If you get to "knew of should have known" then there are oodles of caselaw which equates that to a "negligent" frame of mind. If you get to "knew of a risk but ignored it" you are talking recklessness. And so on from there.

If the damage of one's actions can't be undone, that increases the severity of the situation for sure - look at reckless driving laws - vehicular manslaughter for example. It isn't a murder as it isn't intentional - except under some questionable state laws in the US here and there - but it still resulted in a death. Typically that results in greater punishment but the mens rea is the same, one of recklessness.

[Arthur Rubin]

I think this is in the wrong forum (SovCit/Canada), but I'm really not sure where it should be.

[Dr. Caligari]

I think this is in the wrong forum (SovCit/Canada), but I'm really not sure where it should be.

...a college dorm room at 2:00 AM?

[davids]

I don't know what it is about the subject of mens rea that brings out negativity on this forum. If the comment is to imply it is something that is only discussed by college kids that is wrong. If it is to mean that it is insignifcant, that is wrong too. Mens Rea and mental states apply in every criminal and tort case there is virtually, and unless that college dorm serves the law school, I doubt any kind of real discussion of it takes place in a college dorm at 2 am.

I realize there are all sorts of non lawyers or practitioners of weird areas of the law like "tax" where mental state means zippo in the modern era that post here, but in the real world, it is a subject that matters and is discussed, and people's cases and lives are won and lost on it.

[Arthur Rubin]

But what does it have to do with "Sovereign Citizen"s? Due to misuse, Quatloos no longer allows general discussions in the "Potpourri" forum. It's an important legal issue, but not relevant for this forum.

[Famspear]

In the context of Federal criminal tax law and tax protesters, mens rea has been discussed in detail many times in the Quatloos forum -- in the threads on tax protester scams. The holdings of the U.S. Supreme Court in the Cheek case deal with the intricacy of the mens rea element of willfulness in federal tax crimes. Those discussions generally are tied to a particular aspect of a particular scam, such as the Cracking the Code scam, where Peter Hendrickson's arguments about his "actual belief" betray his misunderstanding of the mens rea element.

I think Arthur and Caligari are just wondering: What does the general, theoretical musing about mens rea in this particular thread have to do with "sovereign citizen" scams, the subject of this area of the forum?

[Dr. Caligari]

I think Arthur and Caligari are just wondering: What does the general, theoretical musing about mens rea in this particular thread have to do with "sovereign citizen" scams, the subject of this area of the forum?

You said it better than I did, but yes, that was my point.

[Arthur Rubin]

I think Arthur and Caligari are just wondering: What does the general, theoretical musing about mens rea in this particular thread have to do with "sovereign citizen" scams, the subject of this area of the forum?

Thank you.

[Fussygus]

But what does it have to do with "Sovereign Citizen"s? Due to misuse, Quatloos no longer allows general discussions in the "Potpourri" forum. It's an important legal issue, but not relevant for this forum.

The reason it is here (not saying it is perfect forum for issue) is because I have seen the defense of mens rea being part of the selling of sovereign type claims.

Th point of the post is to bring about the discussion on the fundamental understanding of what it means. Sure as it is noted that the court has ruled many times on the issue, but that doesn't necessarily bring out where such a determination comes from, only what the determination is. For one to understand why the court rules the way it does, one must understand what it would be without the court. Understand what in human nature brings about a consensus about a guilty mind being required to illicit a guilty determination.

The way I see it the likes of Dean Clifford and such seem to operate with a conviction that they are free to do whatever they want, because they believe they are doing so honestly. I.e. they don't have requisite mens rea. That regardless of any factual discussion, they seem to consider in the face of mounting factual evidence to prove actus rea, that they continue simply because they hold firm to their beliefs because to do otherwise would expose them knowing. Would expose the guilty mind.

So the point here is that if he knew that the reality is he does have the guilty mind. That his further ambivalence to the logical reasoning brought before him in the proceeding doesn't insulate him from a finding that he had the requisite mens rea, it only furthers the obvious fact he does.

So my apologies if this forum is wrong title for such a discussion. Also I would note that though the forum is more associated to attacking those that would stray from the requisite social norms, per sa, I find it entices very educational discussions on the topics which others have notably sourced (i.e. BMX) for guidance.

Sincerely,

Fuzzy