Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide

Bryn Horner
2 min readOct 7, 2020

Type 3 Critical Engagement

In this writing, the author focuses on the use of negligence in the Model Penal Code. The Model Penal Code (MPC) is the classification of mens rea. It is split into four categories: Purposeful, Knowing, Reckless, and Negligent. She creates the argument as follows: “issue of whether negligence should suffice for criminal liability” (Baron 70). Baron asks the question, what makes negligence so different from the other issues that makes it sufficient to be its own category?

Negligence can sometimes be conflated with the third category, recklessness. To describe both, negligence is an objective standard of evaluation, as a reasonable person, the defendant should be aware of the substantial and unjustifiable risk. Recklessness can be described as the subjective standard, the defendant disregarded a substantial and unjustifiable risk of which the defendant was already aware. The main difference between the two is the fact that to act recklessly, one must be “consciously disregarding the risk” (71).

The author makes an argument here that questions what actually constitutes something as substantial and unjustifiable. She poses, what if the defendant sees the idea as justifiable? Is it still reckless behavior? She believes that if D (the defendant) sees it as justifiable then it can not be considered reckless. This claim is interesting, and I would say flawed. The idea of recklessness is based off of the standard code of conduct for humans, not want someone (a criminal) perceives them to be.

Baron next argues that mens rea should not be described as ones mental state. She claims that this immediately settles the idea that negligence is not a form of mens Rea. For those that believe it does not settle this idea, that they should be able to come up with a way that renders negligence as a mental state. Baron says that the reason negligence is different from the other three categories is based on this idea that it isn’t a mental state, along with the idea that negligence itself is enough to suffice for culpability without the presence of an actus reus.

The strengths of this article include the authors clear and present knowledge on what she is writing. However, the text seems very jumbled and in a way hypothetical. Baron seemed to focus too much on the idea that negligence can not be a mental state- whereas I believe it can. To be negligent means that you are following your own mental state and disregarding that of normal human conduct. I believe that to be negligent can be a classification of mens rea and a guilty mind. The plausability of the conclusion is there. The conclusions are reasonable and are a widely controversial topic; however, the strength of her article could have been more factual based and easier to follow.

Baron, M. (2019). Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide. Criminal Law and Philosophy, 14:70–71. Retrieved October 6, 2020, from https://doi.org/10.1007/s11572-019-09509-5.

--

--