You are here


Mens Rea Required


No person shall be guilty of a federal crime unless the person’s mens rea has been proved beyond a reasonable doubt.

Mens Rea Required: Proposed Language

No person shall be guilty of a federal crime unless the person’s mens rea has been proved beyond a reasonable doubt.


The term mens rea is Latin for “guilty mind.” The due process requirement in American jurisprudence has always required some type of fault in addition to the particular action causing a crime. However, there is a growing body of strict liability crimes that result in penalties and punishment for which a guilty mind need not be proved. This trend adversely affects our freedoms as more and more federal crimes are passed. Since 2000, Congress has created at least 452 additional crimes. By 2007, the total number of federal crimes exceeded 4,450. 

One experienced criminal attorney has stated:

…there are just too many federal crimes, many created by regulator fiat or otherwise without meaningful oversight by elected officials. [I am concerned] about how a great many of them are apparently drafted by people with no understanding of how criminal law works and why. About how, as a result, there are an insane number of federal crimes (all felonies, of course) that penalize without any mens rea requirement at all. The most innocent accident, the most harmless and unintentional error, can make any honest and decent citizen a felon.

The growing trend to permit crimes without establishing mens rea opens the door to a tyrannical government. One can envision a situation in which a particular bureaucrat develops a negative animus against a citizen and then charges him with violation of numerous regulations imposing criminal penalties. There are circumstances in which the person did not have any idea he was doing anything wrong. It is one thing to assess a person civil damages for harm to the public occasioned by his actions, but it is another thing to label him a criminal, imprint that upon his public record, and make him the scourge of society when he did not know he was doing anything wrong.

The concept of mens rea has received its fair share of attention from legal scholars. Some have said that mens rea contains two factors: an actual harm (a social disvalue) and the mental state of the actor who commits the harm. These scholars disagree on whether the harmful act need imply immorality and whether a harmful act committed with laudable motives could be a crime. Oliver Wendell Holmes said, “It is quite futile to seek to discover the meaning of mens rea by any common principle of universal application….” Since motive has no easy definition, its involvement in mens rea prevents formulation of a common principle essential to legality.

The courts will be challenged by this amendment as they attempt to formulate the mental elements essential to crimes and the requirement of “guilt”. However, attention to this concept by the federal government is essential to our freedom. The States may depart from the standard subject to limitations of the Constitution.

It is not above the government to avoid the mens rea requirement. Thus, there are some cases where, for example, a federal prosecutor has argued that he did not have to prove “knowingly” when the person was charged with illegal “acquires” where the crime was “knowingly uses, transfers, acquires, alters, or possesses…[an illegal drug].” The reason: The term “knowingly” applied only to the term “uses” and not to other terms. The mere fact that the government would make such an argument establishes its proclivity to seek recognition for convictions regardless of the justice thereof. Today, where a criminal statute is silent as to mens rea, the courts will require proof of general intent (“general intent” means you knew you were committing the act complained of even though you did not know it was wrong to do so). The courts will enforce a criminal statute without mens rea if Congress so requires. 

In the interest of protecting the freedom of individuals, we deem it important that mens rea be required as an element of proof in any federal crime.

Voice Your Vote

Do you support the proposed Mens Rea Required amendment?

How much "Importance" does this proposal hold for you?