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Although
the baseline mens rea is spoken of in terms of recklessness (in modern
codes ) or "malice" (in common law cases), there are some crimes
where there is a lower mens rea. Lower is used in the sense that
one need not have been aware that what he was doing was wrong, or that
it might inflict illegal harm. Rather, if he should have known, this
suffices for liability. This is criminal
negligence |
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It can arise
in involuntary manslaughter, and battery for example. Now as you
are learning in torts there is something called civil negligence -- one
should have know that he was breaching a duty of care that could lead to
injury. Criminal negligence, however, must be more than civil negligence.
The question is, more what? |
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Consider Santillanes
on page 209. The defendant got in a fight with his 7 year old
nephew andcut his neck with a knief. He was convicted of child endangerment.
The trial judge had instructed the jury on civil rather than criminal negligence
and the defendant appealed on the ground that the trial judge had erred.
Now note that this court states the general
rule that even what a statute is silent, it is presumed to require a mens
rea (why? -- think back to Martin case and Newton case).
Why don't we generally approve of no fault crimes? Is there such
an act as a crime without fault or is it a contradiction in terms? |
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 The
Court said criminal rather than civil negligence was the mens rea when
one risked the moral contempt of the community. The court says the
line is between "morally culpable" and "merely inadverent" conduct.
What criteria did the court give for deciding on which side of the line
given conduct was? Is all civil negligent conduct, "merely inadverent"?
Do we hold landlords in moral contempt who let a building become a safety
hazard? Note that the Code on page 212 attempts to give meat to the
difference speaking of a "substantial" risk or a "gross deviation" from
the care he should act with. How do we know when the conduct was
grossly negligent?? Is there a fixed measure?
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