The Independence of the Actus Reus

81 Pages Posted: 20 Feb 2011

Date Written: February 17, 2011

Abstract

Many commentators assert that the actus reus of some criminal offenses must include a mental element, that is, that it must be defined in terms of the actor’s contemporaneous state of mind. This awkward construction is believed to be necessary because without it the actus reus of some offenses would appear to be entirely innocuous and commonplace. But including a mental element in the actus reus undermines the fundamental distinction between actus reus and mens rea and complicates the many legal doctrines that are built upon the distinction. I argue that with a strict understanding of a mental state and a reformed model of the criminal act (based upon control and not willed movement), we can adequately define the actus reus of all offenses independently of any mental element. I pursue this argument with respect to those offenses whose actus reus is most commonly believed to require a mental element: namely, attempt and certain other offenses, such as theft, that involve an implied element of nonconsent.

Keywords: Criminal Law

JEL Classification: K14

Suggested Citation

Mangiafico, James, The Independence of the Actus Reus (February 17, 2011). Available at SSRN: https://ssrn.com/abstract=1763352 or http://dx.doi.org/10.2139/ssrn.1763352

James Mangiafico (Contact Author)

Independent ( email )

Washington, DC

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