Document Type
Article
Publication Date
Winter 12-1-2018
Rights
Abstract
This Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. As a result, jurisdictions without jury trials are better equipped to incorporate attitudinal kinds of mens rea into their criminal laws.
Publication Title
Marquette Law Review
First Page
575
Last Page
603
Recommended Citation
Luis E. Chiesa,
Mens Rea in Comparative Perspective,
102
Marq. L. Rev.
575
(2018).
Available at:
https://digitalcommons.law.buffalo.edu/journal_articles/943