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Actus Reus-Mens Rea Distinction - Paper Example

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Carnegie Mellon University
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The Model Penal Code of the USA states that criminal liability must have both the actus reus and the mens rea: the intention to commit and offense and the actual commitment. This concept has seen emerging discussions among legal circles in different jurisdictions in the country. One of the discussions centered on this concept is Robinsons (1993) paper that delineates the incoherence of the separation of actus reus and mens rea. There is no comprehensible reason as to why a criminal should be freed due to the absence of evidence to show intent (Robinson, 1993). Regardless of the magnitude of the criminal act presented before court, the Model Penal Code provides that an accompanying and compelling reason behind the offense must be presented to justify culpability.

Indifference culpability is treated as a crime despite it being an isolated actus reus (Somin, 2002). An actor who causes death or injury to a person without prior contemplation of their action is just as guilty as the one who kills or cause injury with an intention of doing so (Simons, 2002). Indifferent culpability relates to the conviction of actors who do not mind the implications of their action. For example, a reckless driver who ultimately kills a pedestrian after avoiding hitting others before this accident is culpable even though he did not contemplate killing any pedestrian. Additionally, a person who shoots in the forest without caring if his stray bullet may injure a person is culpable even if his actions do not have a mens rea. In other words, a conviction is feasible when an actor commits a crime that is not associated with an actus reus.

Legislative Immunity versus Diplomatic Immunity

Legislative immunity is the process of granting protection from prosecution of members of parliament. A sitting member of parliament has constitutional protection from prosecution or imprisonment as a result of his actions on the floor of the parliament. Additionally, the parliamentarian is protected from arrest even after their term in the national assembly elapses. A court of law or the parliament may withdraw this immunity and expose the Member of Parliament to prosecution. The parliamentarian cannot initiate the process of the stripping of their legislative immunity. Legislative immunity differs from one country to another, although there are some exceptions in all countries like flagrant felony or conviction as private citizens

Diplomatic immunity, on the other hand, is a reserve of diplomats working in a foreign nation. Under diplomatic immunity, ambassadors and their delegations are exempted from prosecution under the host countrys legal system but may be expelled. Diplomats are also exempted from certain taxes. Most member states of the United Nations ratified the law that provided for diplomatic immunity. This immunity applies to ambassadors and their delegates even during times of conflicts to allow for the resolution of the same. Countries that do not support diplomatic immunity feel that diplomats can commit crime just like any other individual. However, diplomats in one country are few, and the magnitude of their collective crime may not have profound effects on the nation. If all the American citizens abroad were granted diplomatic immunity, they may commit crimes whose collective effects may be detrimental to the host country. Therefore, it is not reasonable to extend diplomatic immunity to American citizens in foreign countries.

Standard Sentencing Guidelines

There are standard guidelines that federal judges should apply when delivering a sentence to a convicted criminal. These guidelines cover fines, terms of probation, fees and penalties. Judges should be discrete when giving a sentence to a defendant of questionable competence to avoid undue punishment of people with altered mental state or those without competent legal representation. The sentence given by the judge must consider the mental capacity of the defendant even if they have competent defense counsel. The decision to deliver what kind of sentence must be informed by expert evidence about the metal state of the individual. The judge should, therefore, recommend a psychiatric examination for a defendant that appears to have altered mental state. If the psychiatrist proves that indeed the defendant is mentally incapacitated, the judge should not apply the standard sentencing guidelines. The judgment offered should put into consideration its effects to the welfare of the convict. Some of the waivers that the judge may give include imposing a fine rather than imprisonment for a mentally incapable defendant. The judge may also put the defendant to probation if imprisonment is likely to have adverse effects to the psyche of the defendant. In a nutshell, an apparently mentally incompetent defendant should first be subjected to a mental exam, and offered a lenient sentence if the test turns positive. There are two main reasons that warrant the waiver of sentence to an incompetent defendant. The first explanation is because the sentencing guidelines were developed for defendants of sound mental status. Additionally, the defendant may have committed a crime unknowingly, and the act lacks mens rea.

Goals of the Criminal Justice System

The criminal justice system comprises of the police, the courts, and the incarceration services which include jails and probation services. All these organs work hand-in-hand to protect the public and offer justice to victims of various crimes. The criminal justice system has four main goals that must be upheld by all the organs. These goals are deterrence, restoration, rehabilitation, and incapacitation (Criminal Justice Law International n.d.).

Deterrence is the prevention of crime from happening. Deterrence is dependent on the level of crime surveillance that the police undertake. The heavy and constant presence of the police in the streets deters criminals from engaging in crime. Once a criminal is sentenced to imprisonment, they are removed from their area of operation, and are, therefore, deterred from committing further crime. Incapacitation works in the same manner as deterrence. Once the police establish street-level protection of the public and property, criminals are incapacitated since they cannot operate freely. Similarly, imprisonment or probation of offenders removes them from their operating bases. Their capacity to act is curtailed since they are restrained by the jail walls and guards.

The criminal justice system rehabilitates convict through probation or mandatory enrolment into a rehabilitation facility. The Juvenile Justice System mediates rehabilitation of underage offenders convicted of crime (Criminal Justice Law International n.d.). Restoration, on the other hand, allows the criminal to undergo correction under the safe protection of the law. After imprisonment for a long period of time, a convict reforms and gets back to their original state of mind and body where they cannot commit another offence. The four goals of the criminal justice system protect the public from insults by the criminal. The courts are critical in the system, since they serve to determine whether a defendant is guilty of the alleged crimes or not and thus prevents the conviction of innocent individuals.


Criminal Justice Law International (n.d). Five Sentencing Goals. Retrieved from on 27/10/2018

Robinson, P. H. (1993) Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction? Criminal Law: Action, Value And Structure, S. Shute, J. Gardner, J. Horder, eds., pp. 187-211, Oxford University Press, 1993. Available at SSRN:

Simons, K. W. (2002). Does Punishment For Culpable Indifference Simply Punish For Bad Character? Examining the Requisite Connection between Mens Rea and Actus Reus. Buffalo Criminal Law Review, 6(1), 219-315.


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