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In criminal law, mens rea – the Latin term for "guilty mind" – is usually one of the necessary elements of a crime the state needs to prove to secure a conviction. The test of criminal liability is usually expressed in the Latin phrase actus non facit reum nisi mens sit rea, which means that "the act does not make a person guilty unless the mind is also guilty". The concept is often also simply expressed as “Fault”.

The state must prove, amongst other things, the unlawful conduct of the accused accompanied by some level of mens rea to secure a conviction. Criminal law does not usually apply to a person who has acted with the absence of mental fault; this is a general rule.

There are different types of mens rea, organised into two categories:

  • Intention (dolus)

An accused is at fault where he intentionally commits unlawful conduct knowing it to be unlawful. It does not matter whether it was his direct intention. Even if his main objective was something else, while he knew that the unlawful consequence would follow, he possesses the necessary intention. It is also enough where the accused foresees the possibility of the unlawful consequence, but still recklessly continues with his conduct. What is required is a purposefully chosen course of action. It has to do with the accused’s state of mind.

  • Negligence (culpa)

Simply put, when a person does not act like the reasonable person would have in the same circumstances, he was negligent.

The test can be summarised as follows:

  1. Would the reasonable person, in the same circumstances as the accused, have foreseen the reasonable possibility of the occurrence of the consequence?
  2. Would the reasonable person have taken steps to guard against that possibility?
  3. Did the accused fail to take steps to guard against it?

If all the above questions were answered yes, the accused was negligent. Which one of these (intention or negligence) needs to be proved by the state, depends on the specific crime. Murder is a crime of intention, where culpable homicide is a crime of negligence.

Let’s say, for example, a person is the driver of a car which collides with a pedestrian, thereby killing the pedestrian. If the court finds that the accused intended to kill the pedestrian, the accused would be convicted of murder.

If, on the other hand, the court finds that the accused wasn’t paying enough attention to the road and the reasonable person would have avoided the collision (thereby being negligent), he would be convicted of culpable homicide. The sentence for culpable homicide would be considerably lighter than that imposed for murder. 

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