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.
Marquette Law Review
Luis E. Chiesa,
Mens Rea in Comparative Perspective,
Marq. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/943