Mens

Rea
 TABLE OF CONTENTS

01. 02. 03.

INTRODUCTION Mens Rea in Civil law Mens Rea in Common Law
Intent, negligence and
Intent and negligence
recklessness

04. 05. 06.

CASE 1 CASE 2 Discussion
Leiden schools and
The movie ‘München’
anonymous threats
Mens Rea in Civil law

Intent
- Dolus directus
- Dolus indirectus
- Dolus eventualis

Negligence
- Conscious negligence
- Unconscious negligence
 Intent
- Direct intent (Dolus directus)
- Intention in purest legal and linguistic sense
- Highest degree of intent: behaviour carried out willingly is considered to
reflect the highest possible degree of control and choice.
- Foresees harm and desires to bring it about

- Indirect intent (Dolus indirectus)

- When the actor knows their conduct will almost certainly bring about consequences
that he does not desire or primarily aim at.
- Deals with the side effects (cognitive element of certainty present), even though they
are not the primary aim.

- How to distinguish between dolus directus and dolus indirectus?

- Test of failure -> dependant on final outcome
 Intent

- Conditional intent (Dolus eventualis)

- The defendant is aware of the possible side effects with intended results.
- Decides to act nonetheless, accepting side effects, reconciling with the risk.
- Culpability is grounded in conscious risk taking
 Negligence (culpa)
- Conscious negligence
- Aware of the risk but trust in good outcome.
- Hey, what’s the difference with dolus eventualis then?
- Attitude of the actor: dolus eventualis is present when the actor have reconciled themselves with
the risk.

- Unconscious negligence
- Not aware of unreasonable risk of harm
- No desire to cause harm
Mens Rea in Common Law

- Intent
- Negligence
- Recklessness
- Advertent
- Inadvertent
Intent and Negligence

- Similar to the Civil law system, but less broad as to what can qualify as
intent/negligence
- Direct and indirect intent
- Unconscious negligence
Recklessness
- The conscious taking of an unreasonable risk
- Is aware of the risk, and in the circumstances known to him it was unreasonable to take
the risk
- The risk is objectively assessed;
- About the attitude of the actor
- Conditional intent and conscious negligence in civil law
Quizz
Pat kills the driver of a cab, to fulfil his
aim of killing the passenger

Indirect intent
 After a filled night of champagne
Charles decides to drive home, even
though he knows it is probably a bad
idea

Recklessness
 Lars intends to kill the waitress at the
restaurant he so often likes to go, as she
has never made him a friendly
reduction. He stabs her to death.

Direct intent
Sam pushes his friend into an iced river,
even though he knows that this will
probably kill him.

Conditional intent
Crime of genocide

Special intent
Thomas lights a campfire and when the
night comes he counts on the rain to
extinguish it, even though he shall not.

Conscious negligence
A cook uses (without noticing) a 3 year
old fish and serves it to a customer who
consequently dies after eating it.

Unconscious negligence
 CASE 1
- On Sunday 21 April 2013 an anonymous threat on the Internet, announcing a
bloodbath at
an unspecified school in Leiden caused panic in the university town.
- All schools were preventatively closed.
- The messenger – who made himself known as ‘Buck’ – indicated that he would first shoot
a teacher and next would randomly wreak havoc, suggesting that he had to settle a score.
- It soon transpired that Buck was a former student of a high school in Leiden who had been on
holiday in
Costa Rica when he posted the message on the Internet.
 CASE 1

- After some weeks, it became clear that Buck had not acted alone. Buck had received
some unsolicited assistance from a co-student, Jantien.
- She had created a page on Facebook, inviting lots of friends and acquaintances in Leiden
and surroundings, where Buck went on to publish his ominous message.
- Jantien and Buck had often discussed the Columbine massacre and she had relished
the prospect of helping him spread the word, although she had never
thought that Leiden would have taken the threat seriously.
- And indeed, the threat turns out to be a hoax.
 CASE 1

For your information:

- Article 1(1) of the EU Council Framework Decision of 13 June 2002 on Combating Terrorism
defines a terrorist offence as an intentional act of violence, committed with the aim of:
- Seriously intimidating a population, or
- Unduly compelling a Government or international organisation to perform or abstain from
performing any act, or
- Seriously destabilising or destroying the fundamental political, constitutional, economic or
social structures of a country or an international organisation.

Violent acts include (i) attacks upon a person’s life which may cause death and (ii) threats to
commit such attacks. The Netherlands have fully implemented the EU Framework Decision.
Resolving the case

- potential for criminal liability and

- how the ‘terrorist motive’ fits into the
structure of mens rea.
 Perpetrators
- Buck:
- Sent the anonymous threat on the internet
- But no intention to execute it (the killing) - was abroad

- Jantien:
- Created and shared the facebook page, where Buck sent the message
 Buck and Jantien’s culpability
Intent and Knowledge

Intent:
- No intent to execute the shooting - was abroad
- Discussed the Columbine massacre and not terrorist attacks - their end goal was not to frighten an
entire population
- Shared the ‘threat’ on a large platform And did not specify the school where the shooting might occur - to
scare many people off
Knowledge:
- Well aware of how the US handle school shootings - often discussed the Columbine massacre -> should
have known how this would have been handled in NL
- School shootings mainly happen in the US, very rare in Europe/the Netherlands -> difficult to estimate how
Seriously they would take it
Does the ‘intent and knowledge’ only refer to the act itself, or also to further consequences?
- Does Buck’s and Jantien’s ‘intent and knowledge’ only refer to spreading a hoax, or also to
causing
panic and the closure of all schools in Leiden?

- Further consequences
- Knowledge implies that they be aware of further consequences
- Intent would imply they aimed for the further consequences - not the case
- Without their act, the further consequences would also not have happened

Should be liable for the further consequences

 To what extent should they be liable?
Intent
- Direct intent (Dolus directus)
- Intention in purest legal and linguistic sense
- Highest degree of intent: behaviour carried out willingly is considered to reflect the highest
possible degree of control and choice.
- Foresees harm and desires to bring it about

-> harm= executing the school shooting

l-> no desire to bring it about

To what extent should they be liable?
Intent
- Indirect intent (Dolus indirectus)
- When the actor knows their conduct will almost certainly bring
about consequences that he does not desire or primarily aim at.
- Deals with the side effects that the actor knows are almost certain to
occur (cognitive element of certainty present), even though they are
not the primary aim.

Side effects (closing of the schools): unwanted, no assumption of the risk

l-> Did not know these side effects of the act would occur, and did not accept
them as the necessary consequences
To what extent should they be liable?
Intent
- Conditional intent (Dolus eventualis)

- The defendant is aware of the possible side effects with intended

results.
- Decides to act nonetheless, accepting side effects, reconciling with
the risk.
- Culpability is grounded in conscious risk taking

-> Assumption that had knowledge about the possible side effects, consciously
took the risk

Made an actual threat and shared it, and scared people off

But no intention to harm (kill a teacher)

To what extent should they be liable?
Negligence
- Conscious negligence
- Aware of the risk but trust in good outcome.
- Hey, what’s the difference with dolus eventualis then?
- Attitude of the actor: dolus eventualis is present when the actor have
reconciled themselves with the risk.

No desire to harm: Buck was abroad

No trust in good outcome, rather consciously took the risk

To what extent should they be liable?
Negligence
- Unconscious negligence
- Not aware of unreasonable risk of harm
- No desire to cause harm

Had enough knowledge to be aware of the unreasonable risk

 Recklessness
Common law
- The conscious taking of an unreasonable risk
- Is aware of the risk, and in the circumstances known to him it was
unreasonable to take
- The risk is objectively assessed;
- About the attitude of the actor
- Conditional intent and conscious negligence in civil law

Intent too harsh, while negligence not harsh enough

 Motive
- Does not constitute criminal liability by itself
- Aggravates or mitigates the reproach and severity of punishment

Buck and Jantien: not so clear, admiration for the Columbine shooting
 Terrorist motive
Constitutes criminal liability by itself

Article 1(1) of the EU Council Framework Decision of 13 June 2002 on Combating Terrorism
defines a terrorist offence as an intentional act of violence, committed with the aim of:
- Seriously intimidating a population, or
- Unduly compelling a Government or international organisation to perform or abstain from
performing any act, or
- Seriously destabilising or destroying the fundamental political, constitutional, economic or
social structures of a country or an international organisation.

Violent acts include (i) attacks upon a person’s life which may cause death and (ii) threats to
commit such attacks. The Netherlands have fully implemented the EU Framework Decision.
 Terrorist motive
However,

- Public fear as an end

- Did seriously intimidate a population, but was not their aim
- Disproportionate from their initial aim, a hoax
 Case 2

- The movie München, directed by Steven Spielberg, tells the story of the retaliation by the
Israeli secret service agency Mossad, led by prime minister Golda Meïr, against the plotters of
the terrorist assault on the Israeli sport team during the Olympic Games in München, in 1972
(known as ‘Black September’).
- One of the scenes evokes the moral dilemma of two Israeli secret agents who are
about to kill a Palestinian attaché, allegedly having been involved in the planning of the
terrorist assault, by detonating a car bomb.
- They discover too late that the attaché is accompanied by his daughter who is fatally targeted
by the explosion as well.
 Case 2

- Let us assume that the secret agents stand trial for both killings. They admit that they had
intended to kill the attaché, but add that they had never wished to hurt the child.
- They had assumed that she would be at school and had even made previous
investigations to reassure themselves that the attaché would be alone. To their great dismay,
they had found that plans had changed.
 Resolving the
case

- potential for criminal liability and

- how the ‘terrorist motive’ fits into the structure
of mens rea.
 Perpetrators

Two Israeli secret agents:

- Killed the attaché
- Killed the attaché’s daughter
Secret agents’ culpability
Intent and Knowledge

Intent:
- Intended the murder of the attaché
- Did not intend the death of the attaché’s daughter - her execution was not part of their mission
Knowledge:
- Not fully aware of the circumstances - discovered too late the attaché’s daughter
- Fully aware of the consequences of their act
 To what extent should they be liable?
Killing of the attaché
- Direct intent (Dolus directus)
- Intention in purest legal and linguistic sense
- Highest degree of intent: behaviour carried out willingly is considered to
reflect the highest possible degree of control and choice.
- Foresees harm and desires to bring it about

No doubt about their intentions

l-> special intent: intent and ulterior motive (terrorist assault)

 To what extent should they be liable?
Killing of the child
- Indirect intent (Dolus indirectus)
- When the actor knows their conduct will almost certainly bring about
consequences that he does not desire or primarily aim at.
- Deals with the side effects that the actor knows are almost certain to occur
(cognitive element of certainty present), even though they are not the primary aim.

-> Side effects: almost certain they would not occur/not result in the child’s death
 To what extent should they be liable?
Killing of the child

- Conditional intent (Dolus eventualis)

- The defendant is aware of the possible side effects with intended results.
- Decides to act nonetheless, accepting side effects, reconciling with the risk.
- Culpability is grounded in conscious risk taking

-> Side effect: difficult to rule out potential consequences - detonating a car bomb

l-> Accept the risk that someone else might get injured
 To what extent should they be liable?
Killing of the child

- Conscious negligence
- Aware of the risk but trust in good outcome.
- Hey, what’s the difference with dolus eventualis then?
- Attitude of the actor: dolus eventualis is present when the actor have
reconciled themselves with the risk.

-> trust in good outcome, rather consciously took the risk

+ Aware of the risk

Recklessness
Common law
- The conscious taking of an unreasonable risk
- Is aware of the risk, and in the circumstances known to him it was unreasonable to take
- The risk is objectively assessed;
- About the attitude of the actor
- Intent is too harsh; negligence not harsh enough
 Discussion
Can Neurological Evidence Help Courts Assess
Criminal Responsibility?

Source: Aharoni, E., Funk, C., Sinnott‐Armstrong, W., & Gazzaniga, M. (2008). Can neurological evidence help courts
assess criminal responsibility? Lessons from law and neuroscience. Annals of the New York Academy of Sciences,
1124(1), 145-160.
 Commonwealth of Pennsylvania v. Pirela

- The victim Pablo Ortiz was killed by poisoning with battery acid.
- Perpetrators: Simon and Heriberto Pirela
- In 1982, a Pennsylvania judge sentenced Simon Pirela to death for
murder in the first degree
- Twenty-one years later, an appellate court reduced Pirela’s punishment to
life in prison on account of new evidence.
- Neuroimaging data successfully convinced the judge that Pirela was not
eligible for the death penalty because he suffered from aberrations in his
frontal lobes, diminishing his ability to function normally.
 Roper v. Simmons

- This case involves Christopher Simmons, who was 17 when he was arrested for the murder of Shirley
Crook.
- The U.S. Supreme Court granted review in this case to rule on the constitutionality of the death penalty
for juvenile defendants (those under the age of 18 at the time of their crime).
- Missouri Psychological Association presenting scientific evidence to assist the court
- included was recent relevant MRI research on brain function suggesting that the brain continues to
develop through young adulthood in areas that may bear on adolescent decision-making.
- provides the court with research and expert opinion about the characteristics of adolescents such as
less mature decision-making, impulsivity, risk-taking, peer orientation, temporal perspective (the
extent to which long term and short term consequences are taken into account) and vulnerability to
coercion and false confession.

- In a 5-4 opinion, the U.S. Supreme Court ruled that standards of decency have evolved so that executing
juvenile offenders who committed while younger than 18 is “cruel and unusual punishment” prohibited
by the Eighth Amendment.
 Philosophical issues
(1) Every act is determined.
“I didn’t do it—my brain made me do it.”
(2) If an act is determined, then its agent is
not responsible for the act.
(3) Therefore, no agent is responsible for any
act.
Pros Cons

- This argument seems to have special force when - Neuroscience cannot demonstrate that all acts
we can trace an action to causes beyond its are determined.
- One reason is that most neuroscientific studies
agent’s control.
reveal only correlations rather than causation.
- The neural connections that affect actions - Even studies that find neural causes do not
developed long before the actions (perhaps prove that those causes are deterministic, and
during childhood) and were caused by external they clearly do not generalize to all actions of all
circumstances or prior events that were beyond sorts.
the agent’s control.
- Moreover, most agents do not know what is
going on in their brains, so they cannot choose
certain neural events rather than others with any
specificity.
Legislative issues
The relevance of neuroscientific evidence has been implicated in at least two of these roles:
- defenses that deny intentions and
- affirmative defenses, such as insanity

One way to show this lack might be to show that the defendant has abnormalities in the brain that
prevent the defendant from forming or committing to plans of action. -> a defense of diminished capacity.
- If it can be empirically demonstrated that a defendant has difficulties forming intentional actions, there might be some
probability that he lacked the capacity to act intentionally at the time of the offense.

The burden is then placed on neuroscientists to identify and measure abnormalities associated with these functions and
dysfunctions.
-> There is no known way to retroactively observe the state of the brain as it was during the commission of the offense.
Time to discuss!
What scholars say

The legal issues outlined above are all filled with

uncertainty. Even the best neuroscientific evidence will
leave us unsure whether some particular defendants
meet the conditions for criminal responsibility. Mistakes can have devastating effects in criminal
justice.

How to reduce errors:

- properly distribute the burden of proof or persuasion.
- Figure out how to fix the issue of admissibility of evidence.
- is not clear when neuroscience findings should qualify as relevant, material, or
competent, or reliable, as defined by the rules of evidence.
- it is also not obvious under what classification it should fall: real, demonstrative,
documentary, or testimonial evidence

ice.
What scholars say

A cautious step forward:

As we brace for the future, the ideal test of the validity of neuroscience technology, it might be
argued
- is to predict in advance whether a person with observable abnormalities in legally
relevant brain areas is at a specifiable risk of criminal behavior or can conform to the
law.
- A step towards mandatory neuroimaging in criminal justice?

This goal may raise an entirely new set of moral and philosophical questions about
how the law ought to regulate the behavior of innocent people and how we determine mens rea.

ice.
 Discussion
Is the doctor liable?

The doctor gives a drug to his patient which ceases his pain, but because of that his death is
accelerated.
The patient ceases to feel pain because his doctor administered him a drug to kill him, but
save him from further pain. The doctor acted in line with the patient’s consent.
The patient ceases to feel pain because his doctor administered him a drug to kill him, but
save him from further pain. However, the âtient rejected the doctors request and did not
consent to being administered that drug.
The patient suffers from a rare condition where he lost all of his senses and is in great pain.
His doctor decides to administer him a drug to kill him, but save him from further pain. The
doctor acted without any instructions from his patient.

≈
A PICTURE ALWAYS REINFORCES
THE CONCEPT