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A Short Introduction to Mens Rea

Updated: Jun 2

Ankit Anand, Law Student, CHRIST (Deemed to be University), Bangalore


Criminal law may be termed as a controlling device laying down offences and punishments as well as guiding the proper behaviour whereas the other hand of criminal science is criminology aiming at the cause of crime, its analysis and precautionary measures. Here lie the two broad aspects and chief element, i.e. “Actus Reus” and “Mens Rea”. Mens Rea or the “guilty mind” is the cardinal concept in criminal law focusing on the mental element of the crime. It has developed from an old belief that anyone should not be found guilty of a crime if he had an innocent purpose. It is also known as criminal intent, fault or culpability. This article shall deal with the development of conceptual emergence of mens rea through centuries along with the closely connected concepts.


The guilty mind is the central distinguishing feature of criminal law. In the absence of criminal intent or guilty mind, one might be charged for any civil wrong but certainly not under criminal law. To put a criminal charge or arise a criminal liability one must prove a particular state of mind along with the prohibited harm. Mens rea is surprisingly confused with “motive”. A motive is a cause that moves people to induce a certain action.[1] The motive is alone not sufficient enough until made sure by the prosecution that intention is difficult to be deducted. In broader terms, Mens rea is a synonym with somebody’s condition to accept the blame with the excusable defences such as insanity, immaturity, duress, coercion, force etc. Its focus on personal culpability relates it to philosophy or psychology, and when looked at modern use, it becomes narrower. Technically speaking, the essence of crime consists of the elements that define the crime. These elements describe the mental state that the defendant must possess when the crime occurs, but do not include defences or other doctrines outside the definition of the particular offence.

Mens rea being the Bible of criminal law study

Having its origin from the writings of an English jurist, Sir Edward Coke, Mens rea was then used in common law practices to find out how deliberately an act or criminal activity has been done. Simply put, it differentiated between an accidental or purposeful act. For instance, it is an essential factor to determine the accused’s mental state at the time of the commission of the crime, and in lack of proving so or alternatively proved it was an accidental or inevitable or unavoidable act, the suspect would be set free.

In India the Indian Penal Code, 1860 is the main penal code defining all the major crimes and punishments thereof. There is no other issue instead of determination of Mens rea in criminal law having fundamental importance of such standard. From past hundreds of years, we have been relying on the phrase Actus non facit reum nisi mens sit rea which means there can be no crime of any severity without a guilty mind. I would include several other “offences” under tort laws or civil laws which certainly requires the guilty mind to be proven according to this maxim.

If we go on adding the continuous evolution or transitions of Mens rea, some arbitrary distribution might be laid down as the pre-requisite of mental state in the early thirteenth century, development of a conceptual understanding of mens rea, such state to be proven for a criminal offence, mens rea in felonies, mens rea later seen with added defences of insanity, mistake of fact, infancy, lunacy, accident etc. At this point, it remains difficult to trace all the small transitions or specifics in the development of mens rea.

Although varied views are there on the subject matter, I would be of the opinion that ascribing a certain definition or meaning to the term would be impossible. Time and again, the definitions of negligence, prudence, reasonableness, intention, recklessness and common knowledge have been jointly and severally used to construct mens rea.

There are stories which proof earlier criminal justice relied on a degree of vengeance or blameworthiness as decided by the church. Apparently, the truth could be that the very slim existing and surviving records concerning earlier justice delivery system or administrative offices could be tainted or vitiated. The lack of distinction in those days (early 12th Century) between a crime and a tort, as evident from existing books, it could be easily inferred that the requirement of Mens rea was not an imperative pre-requisite. The law used to set very strong allegations without any guilt or criminal intent. The killer was held liable of murder even after killing in private defence of accidentally where only those were spared who killed under the king’s orders to execute.

The constant connection between the church and state laws by the end of the 12th Century lead to the development of Canon laws which were much harsher and painful. Being under the percolating leverage of the church, moral guilt later developed and gave immense momentum to its growth. Thus the criminal law in Britain transformed from the usual assistance of blameworthiness and started to focus upon finding out the element of Mens rea although this conception was later called as vague by legal critics when seen with a moral aspect. Law of homicides was under continuous transformation during 12th -15th centuries and henceforth criminal responsibility started to be moved from those coming under the concept of “General Exceptions” under modern IPC. Rather it was a good movie; the seriousness of criminal responsibility was decided on the basis of the Actus reus.

Looking at the development of General Defenses, it can be said that the concept of blame or morality must be based on the free thought of voluntarily choosing “the bad” instead of “the good”. If there is no freedom of choice or willpower to exercise the normality of free choice, there will be no crime on moral defects.


Mens rea may be given the character of a slippery surface as when compared to Actus reus. In order to penalize an act, we need evidence and witnesses to testify. The situation becomes difficult as well as confusing for the judges to decide in case of breakable evidence or unworthy witnesses to prove Mens rea as it might go on defeating cardinal principle of criminal law, “may hundreds of guilty be set free but not a single innocent be punished”.


[1] Garner, Bryan A. (2005). Black’s Law Dictionary, abridged Eight Edition. Thomson / West. P. 855. ISBN 0-314-15863-4.


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