Subjective Test of Mens Rea

Subjective Test of Mens Rea

In criminal law, a subjective test of mens rea is preferable to an objective test for a variety of different reasons. First, strict liability laws already punish people without regard to specific state of mind. Second, an objective test of mens rea is sexist. Third, an objective test of mens rea is racist. Fourth, a subjective test of mens rea allows the fact finders to consider cultural considerations. Fifth, a subjective test of mens rea allows the fact finders to consider religious considerations. Finally, a subjective test of mens rea allows the fact finders to consider the entire range of circumstances to determine if any reasonable person could have engaged in the same behavior as the defendant, whether than determining whether the defendant engaged in the same way as the average reasonable person. Changing the test of mens rea from an objective to subjective test would help ensure that those convicted of criminal laws have the appropriate criminal intent, rather than holding people to an objective standard of reasonableness that no longer applies in today's society.

People who continue to advocate an objective standard for determining mens rea seem concerned that some people would escape liability for various offenses if the state was unable to prove subjective state-of-mind. However, this requirement can be dealt with in a variety of ways. For example, not all laws require a specific state of mind. The most well-known of these laws are probably the statutory rape laws, which criminalize sexual contact with minors, without regard to the actor's state of mind. Therefore, if an offense is considered so shocking or horrible that no person, regardless of their state of mind, should engage in the behavior, the state has the option of making it a statutory offense, where simply proving the commission of the crime is sufficient to obtain a guilty verdict. Therefore, moving to a subjective standard of mens rea would not remove culpability for status and similar offenses.

Second, the objective reasonable person standard was developed when criminal defendants were predominantly male. As a result, the objective standard of reasonableness tends to ignore concerns that are particularly female in nature. For example, women are much more likely than men to use a weapon when committing a homicide, which, using the reasonable person standard, might make it seem like these women were intent on causing death. However, if one can apply a subjective test that takes into consideration the fact that women are physically weaker than men, one can come to understand how a woman could use a weapon against a weaponless attacker and still be behaving in a reasonable manner.

In addition, an objective reasonable person standard can be used in a racist manner. The idea of what behavior is reasonable has been developed to reflect the prevailing cultural and societal norms of the dominant society, which means that it is biased towards Caucasians. However, subjective reasonable behavior may vary according to racial considerations. For example, blacks are much more likely to be the victims of police violence than members of other racial groups. Therefore, a black person who flees from the scene of a crime may not be demonstrating the same evidence of guilt as a non-black person fleeing the scene of a crime. Since many criminal convictions are based on circumstantial evidence, it is important that the finder of fact understand that different behavior can have different meanings, based on race. Therefore, a subjective reasonableness standard would ask whether a defendant behaved in a way that was reasonable for members of his or her racial group, and not in accordance to prevailing cultural norms.

Fourth, race is not the only factor that can impact judgment. Therefore, a finder of fact should be able to take a defendant's culture into consideration when determining guilt. For example, domestic violence victims live in a culture that is completely different from the surrounding culture, even though, outside of the home, they interact with normal society on a daily basis. However, domestic violence has been more appropriately described as domestic terrorism, and the heightened fear and heightened awareness experienced by victims has an undeniable impact on their reasoning skills. As a result, it is important that battered women who use deadly force against their batterers when they are not in an immediately life-threatening situation be able to demonstrate that their behavior was reasonable without resorting to a quasi-insanity plea, like battered women's syndrome. Instead, if someone who has consistently battered and abused someone threatens to hunt a victim down and kill them, that victim can reasonably believe that nothing short of the batterer's death will save the victim's life. This changes how the victim views other legal terms, and can make them feel like the threat of death is imminent and unavoidable, even if there is no overt threat of violence. This is an important consideration, because it allows a victim to escape criminal liability for a non-criminal action without affirmatively pleading a condition like battered women's syndrome, which could be used against them in civil proceedings regarding custody and estate distribution.

Fifth, a subjective test of mens rea allows one to consider a victim's religious considerations when determining state-of-mind. Many people would have issues with allowing religious considerations to impact whether or not a defendant would be found guilty. However, those concerns are based upon assumptions that all religious share the same basic behavioral norms, which simply is not the case. Therefore, some behavior that would seem absolutely unreasonable to members of one religious group may seem appropriate to members of another religious group. This standard is especially important when viewed in conjunction with affirmative insanity defenses. For example, some women who suffer from post-partum psychosis actually suffer from delusions that direct them towards killing their children, and some of these delusions can be overtly religious in nature. Looking at a defendant's religious background can help one understand whether, in light of that background, a defendant acted in a reasonable manner. Many religions explicitly state that their deity would not direct a person to behave in such a manner, so that such delusions should be sufficient to inform the person that they are not acting in a reasonable manner. However, other religions build on a history of parental sacrifice by children and suggest that every follower has the ability to speak directly with God. Therefore, a person engaging in that belief could honestly state that they followed their compulsions because they were directed to do so by God. This would not entitle the person to an absolute guilty verdict, but would allow her to successfully utilize an insanity defense.