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Tracing the Development of Mens Rea

Simran Upadhyaya & Sri Hari Mangalam


We all have heard of the adage "Actus non facit reum nisi mens sit rea”, which means for an act to be declared a criminal it has to be coupled with a guilty mind. This shows that mens rea is one of the essential elements of crime. The importance of mens rea can be judged from the words of the Bishop “It is, therefore, a principle of our legal system, as probably it is of every other, that the essence of an offence is the wrongful intent, without which it cannot exist."[1]

Mens rea in Latin means a guilty mind. However, it very difficult to attach a specific meaning to means rea due to its holistic view, as it has changed drastically over centuries. Therefore this paper attempts to explain to the readers the doctrine of mens rea. To do so, I will trace the historical development of mens rea along with its origin and the establishment of mens rea. Furthermore, I will explain mens rea under modern law, by raising three important questions: What made the court transition from objective standard to subjective standard of mens rea ? What are the degrees of mens rea followed under modern law ? Why is negligence a part of mens rea ? Is the hierarchal system of mens rea viable or not? Finally, to conclude my paper, I shall give my take on the hierarchal system of mens rea.

Development of Mens Rea under English Law

History is witness to the fact that criminal law developed as a result of blood feuds along with the principle of retribution.[2] Therefore, the law during those days would confine itself to provocative injuries that were intentional.[3] Furthermore, vengeance was also dependent on evil intent.[4]

However, the absence of ancient literary texts does not provide enough evidence as to how the law functioned. But scanty resources do lay down that during those times there was no distinction between the law of crime and the law of tort. [5] Therefore, initially, crime only functioned on the basis of absolute liability because “ The doer of a deed was responsible whether he acted innocently or inadvertently, because he was the doer; the owner of an instrument which caused harm.”[6] Also, during those times, if any person acted beyond the realms of the law, then he would be at war with the entire society and "it is the right and duty of every man to pursue him, to ravage his land, to burn his house, to hunt him down like a wild beast and slay him.”[7] Hence, the purpose of the law was to penalise anyone committing a crime without introspecting his innocence or guilt.

Over the years, the intent of law was to stop acts of revenges that would arise out of blood feuds and replace it with money payments as compensation to the family of the victim. That is when the concept of “wer” emerged.[8] Wer was nothing but compensation to the family members according to the social and economic standing of the person in his kin. This was usually used as a bribe to keep the person quiet.[9] Thus, it is evident that law before the twelfth century did not regard criminal intent or mens rea to be a necessary element for crime. The best example, where criminal liability had been imposed without looking into mens rea was misadventure or actions taken in self-defense. However, they did not discard the idea of mens rea in its entirety since it formed an inevitable part of certain crimes, such as, rape, waylaying, robbery, and housebreaking.[10]

It is only after the twelfth century, that mens rea made its way through criminal law as it sowed its seeds in the book of “Leges Henrici Primi”.

Origin of Mens Rea

The two major influences that laid down the inception of mens rea was the impact of Roman law and Canon law.

Under Roman law, the ideals of "dolus” and “culpa” were followed religiously for every crime. These ideals helped in proving the mens rea of the accused. The Doctrine of Dolus drew a connection between the psyche of the actor and his unlawful act and also his perspective towards the illegal act.[11] While the doctrine of culpa focused on reasonable foresight that a prudent person ought to have and in the absence of which an actor would be made liable for his acts.[12] Such an act also included undertaking hazardous tasks without possessing the pre-requisite skills or omitting to do something specific to the situation.[13]

Over the years, Canon law also started gaining dominance. The canonists emphasised, mental element to be an inescapable part in determining guilty and also urged the need to follow subjective blameworthiness to determine the legal wrong committed. [14] Therefore, according to canonists, to punish an individual on the basis of pure misadventure is against the principles of moral guilt. The Canon law was in line with the church beliefs as Chirst’s teaching mainly focused on state of mind to determine the degree of penance for the illegal act.[15]

Therefore, the dominance and popularity of Roman Law and Canon law had a major influence on English laws. This was evident from the fact that many English law books were an exact replication of the sermons of the church. A prominent example of this would be the book, “Leges Henrici Primi” written by Henry I. Though, this book dealt with absolute liability as a whole, but in the perjury section, it laid down the principle “reum non facit nisi mens rea.” This concept of mens rea was only accepted on a larger scale when it was popularised by St Augustine and Theodore of Tarsus, as part of their teachings.[16]

Another significant work that led to the origin and acceptance of mens rea in the mainstream population was the book "De legibus et Consuetudinibus Anglia” written by Henry De Bracton. His ideas were primarily influenced by canon law, which was visible from his thesis that focused on English laws.[17] For example, Bracton’s idea on homicide was a replete of the views of a well-known Canonist, Bernard of Pavia and these ideas were incorporated in his book as a part of the common law.[18] In his book, Bracton writes “ We must consider with what mind (animo) or with what intent (voluntate) a thing is done, in fact, or in judgment, in order that it may be determined accordingly what action should follow and what punishment." [19] This clearly proves that he paid more weightage to criminal intent. This point can be further substantiated by the argument made by him on homicide by misadventure. He contended that homicide by misadventure was an act done without intention to kill, so an individual who commits such an act should be acquitted due to absence of mens rea. [20] Thus, his entire thesis focused on punishment only when the act was done with the intention to commit a wrong.

Therefore, it is due to the influence of Roman and Canonist law that these authors incorporated the doctrine of mens rea in their books which became widely accepted in the larger public.

Establishment of Mens Rea under English law

Over the years, English criminal law insisted on the requirement of mens rea to prove crime. In order to do so, scholars adopted the maxim “reum non facit nisi mens rea” used in Leges to develop newer ideas which finally evolved and become the part of Coke’s Third Institute as “ actus non facit reum nisi mens sit rea.”[21] Moreover, after Bracton’s writings, society mainly focused on “ general moral blameworthiness”.[22] This aided in the distinction of laws between crime and tort. By the later half of the seventeenth century, it was unanimously agreed that an evil mind is necessary for the act of felony to be punished as “ will and intention, as well as the act and event, make the offence capital”. [23]

Thus, mens reas become a vital element in proving the element of crime.

Mens Rea under Modern Law

Initially, the concept of mens rea was very vague and was loosely used by the judges in different cases. This led to many conflicting opinions. However, over the years, the doctrine of mens rea underwent gradual changes before the people could unanimously accept it as a driving force for the criminal act.

In this part of the paper, I shall limit my scope to three important questions to understand mens rea under modern law :

1) How did the court move from an objective standard of mens rea to a subjective standard of mens rea ?

2) What are the degrees of mens rea ?

3) Why is negligence a part of mens rea ?

4) Does the hierarchy of different degrees of mens rea stand?

  1. the transition from objective standard of mens rea to subjective standard of mens rea

As discussed previously, mens rea came about as a necessary ground to punish an individual for his criminal act. Therefore idea of mens rea was intertwined with the idea of legal crime, which served as a basis for the test of guilt. This meant that, initially, the test of mens rea was used objectively.

The courts would study the facts of each and every case and then decide whether the act of the culprit was as per the morally accepted behaviour followed during that time. In such a process, the courts would assume that their standard of right or wrong was the correct one, and the prisoner ought to have known this standard.[24] This further indicated that if the culprit did not follow the moral standard laid by the court, then his mens rea would be established and he would be punished accordingly.

Thus, the adoption of an objective standard of morality aided the courts in proving mens rea, but there arose cases where the act done was against the standard of morality, but the culprit never intended on doing such acts. In such a situation, the criminal act would be nullified based on the argument that the act was "not the prisoner's act".[25] This posed problems in demarcating actus reus from mens rea and also led to an ambiguous interpretation of mens rea. [26]

Eventually, the courts realised that the morality standard was unstable as it kept on changing over the years. Moreover, there was a shift of the criminal jurisprudence from retribution to rehabilitation of the prisoner.[27] This meant that in order to punish someone for a grievous offence, there was a need to consider the actual intent, and thus this brought about the existence of the subjective standard of morality.[28]

The new standard helped in dealing with issues of homicide committed as a result of self-defence and misadventure as the person did not have to wait for a pardon from the king but could directly be acquitted by the jury.[29] The subjective standard also laid down the basis, where mistake of fact was accepted as a ground of defence under criminal law. [30]

  1. The degrees of mens rea under the modern law

The subjective standard of mens rea along with industrialisation and urbanisation paved the way for the establishment of different degrees of mens rea, namely, intent, knowledge, recklessness, negligence.[31] Also, the concepts of giving punishment according to the degree of moral guilt helped in creating different degrees of culpability.[32]

For the sake of simplicity, let us look into each of these elements in details to understand its meaning: -

Intention – “Intention is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end.” [33] Therefore, intention is carrying out an activity with certainty with respect to its end result. Here the focus is on the consequence of act and not the act in itself. [34]

Knowledge – Knowledge means that a man is aware of the consequences of his act.[35] Knowledge is very subjective[36] and depends on the facts of the case[37]. There is a thin line of difference between intention and knowledge. Knowledge refers to “conscious awareness of certain facts in which human mind remain inactive”[38] while intention refers to “conscious state of mind in which mental faculties are summoned into action for deliberate actions”[39].

Recklessness – A person is said to be reckless when the particular event that has taken place was not desired by him to happen at the first instance and also he didn’t act with the aim for the event to occur.[40] Recklessness also refers to a situation where a person can foresee the consequences of his act, but he knowingly brings forth the unwanted result.[41] This could be further substantiated with the help of the case, Hudston v Viney, where reckless was defined as “ attitude of mental indifference to obvious risks”[42]

Negligence – Negligence is nothing but a state of inadvertence.[43] A person is said to be criminally negligent when he fails to act as a reasonable person and fails to exercise proper care and caution to prevent harm to an individual or public in general. [44]The difference between recklessness and negligence is akin to the difference between advertence and inadvertence respectively. [45]

Hence, these four essential concepts define the varying degrees of mens rea which severs as yardstick for the courts to decide the nature of punishment.

  1. Why is Negligence a part of Mens Rea ?

To lay down the answer for this particular question, I will discuss the general arguments made by scholarly authors, and simultaneously bring out the flaws in these arguments. In the end, I will put forth my reasoning and analysis to do justice to this question.

The purpose of dealing with this question in this part of the project is to have a basic understanding to the ongoing debate on; why an individual should be held liable for an act, which he was not aware of (negligence) at the time of doing it? How does negligence form a part of mens rea where the former is a state of inadvertence while the later deals with a guilty state of mind?

The most common answer to justify this question is that the concept of criminal negligence originated from Coke’s doctrine on constructive murder.[46] In his words, the doctrine of constructive murder is " Where a person of sound memory and discretion unlawfully killeth any reasonable creature in being and under the King’s peace with malice afterthought either express or implied, the death following with a year and a day.”[47] This doctrine further evolved in the landmark case of R v. Longbottom, which led to the establishment of criminal negligence in English cases. [48] In this case, a group of delinquents were driving their vehicle on a public road at a very high speed due to which the vehicle smashed against the body of the deceased who was walking in the middle of the road. Both the judges in this case directed to the jury that the delinquents had been negligent in their behaviour by driving at high speed, and so they should be punished because the act of careless and negligent driving is illegal. Further in the case of R v Bateman[49], a doctor was sued for the manslaughter; whereby the judge denounced that it was for the jury to decide where the medical practitioner had been negligent in his act by discounting the safety of his patient, which was a crime worth punishment. Coke’s doctrine was again reiterated in the case of Andrews v Director of Public Prosecution[50], where the court differentiated between homicide arising from an illegal deed and homicide happening due to a negligent act. Here the court laid stress on the fact that to hold an accused guilty; the prosecution must prove to the jury that the accused by his actions has committed a higher degree ofnegligence to be held liable.

Coke's doctrine along with the above mentioned cases may have an authority of their own, but these cases fail to answer the particular question raised above because it treats "unlawfulness" of the act as a marker of negligence. This creates a situation where negligence is judged from objective basis of morality rather than focusing on the subjective element of the mind. But this reasoning cannot be accepted since, as discussed earlier, mens rea is only judged through subjective standard.

To make home the point, negligence is a part of mens rea, many arguments state that criminal negligence had been introduced to distinguish from civil negligence. This meant that the idea of criminal negligence doesn't always need to fit within the framework of subjective mens rea.[51] This argument plays reliance on the importance of introducing objectivity in criminal law due to the transformation of mens rea on day-to-day basis as a result of a society that has shifted from the values of stringent punishment to the need for social protection.[52] This argument might make sense but it is flawed on the ground that it focuses on an evolving concept of mens rea rather than directly addressing the question of why negligence was introduced as part of mens rea at the first place.

Also, they are arguments, which state that Coke’s maxim “actus non facit reum nisi mens sit rea” is not meant to focus only on mens rea, which determines the criminal’s guilt, but also justifies punishment of the criminals for their harmful act. [53] This interpretation of Coke’s maxim means that mens rea is not always about a subjective state of mind and focus is on the objective standard of morality, which justifies culpability based on negligence when the act is sufficient to blame another.

However, Turner in his book[54], argues that negligence cannot be regarded as a degree of mens rea on the ground that a reasonable man should have been able to foresee his activities. His criticism is that if the prosecution can prove actus rues then there is a presumption of mens rea, which puts a burden on the accused to prove that he did not have foresight at time of doing the act.[55] But if he cannot prove his case then he will be criminally liable on the ground that he could foresee his consequences, even though in reality, his act may be one of negligence that falls under tort law and not criminal law. [56]

I, personally, do not concur with Turner’s argument because my argument on negligence being a part of mens rea is justified on the grounds of reasonable man standard. We know that to prove an offence, the doctrine of reasonable foresight applies in certain cases where the prosecution has to prove the result of the crime was a natural consequence of the act and the reasonable man could have foreseen the result.[57] Thus, the former part deals with actues reus and the later part deals with mens rea. Similarly, “criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.”[58] Therefore, criminal negligence focuses on the mens rea by following the reasonable foresight threshold that is required by the reasonable man. It is not always necessary that mens rea may mean evil will, it can also focus on reasonable foresight. Therefore, it is just to punish someone who does not foresee his acts while doing them because you are expected not to harm others and free yourself from liability on the excuse that you did not think about the consequences. Further, negligence is made a part of crime based on the degree of negligence, which helps in distinguishing it from civil negligence. "A higher degree of negligence has always been demanded in order to establish criminal offence that is sufficient to create civil liability.”[59] Therefore, negligence under criminal law has to focus on mens rea.

I may agree that my argument might be full of flaws and can be subjected to further criticisms. However, this is the only plausible argument that I concur with, which will help us come out of this pandora’s box.

  1. The viability of the hierarchal system of mens rea

In this part of the paper, I will be discussing the arguments put forth by three scholarly authors and then concluding the discussion with my inputs. Here the focus is on the hierarchy of the degrees of mental states, followed under the Model Penal Code and Indian Penal Code.

Kenneth Simons in his article[60] questions the hierarchy of culpable mental states followed by the Model Penal Code (hereinafter, MPC). He argues that knowledge always doesn't need to be more culpable than recklessness and the doctrine of "willful blindness supports his argument"[61] and “extreme indifference murder category”[62].

The doctrine of willful blindness lays down that an individual who recklessly avoids the circumstance component of an offence should be punished similarly to the individual who is aware of the circumstance.[63] The doctrine presupposes that a person, who is reckless in his action, deliberately avoids knowledge, which he should ought to have known and therefore, such an individual needs to be punished.

The extreme indifference murder category states that if a person is reckless in his actions and causes the death of someone, then he should be punished similarly to the individual who had the intention or the knowledge to kill the person.[64] For example, if a person shoots at an occupied building, then he might be reckless of not being aware that his action will lead to death, but he will be still punished for murder as if he had the intention to commit crime.[65]

Both these theories reject the hierarchy degree of mental states as they regard the difference between knowledge and reckless is be too narrow.

The author also argues that it is not always true the recklessness will be worse than negligence. There may be situations, where a negligent actor may have a state of mind, which is equal to a reckless advertent individual, who knows the risk associated with his act.[66] In such a scenario, the author suggests the MPC should expand the scope of the term recklessness so that it punishes offenders who are aware of the risks of their actions and also those offenders who are oblivion about the resulting circumstance of their action. [67]

He further argues that MPC categories are too cognitive since there is no proper distinction between recklessness and negligence. The minimum threshold for recklessness is that the offender should be aware of the risks, but this threshold is difficult to infer in many cases.[68] Moreover, negligence is only seen through the lens of risks,[69] which makes this approach too restrictive.

While, Douglas N Husk argues that as MPC accepts four degrees of mental state so the code should create four distinct categories for the same offence.[70] For example, for the offence of theft, the code should distinguish between different levels of theft, such as, intentionally stealing, knowingly stealing, recklessly stealing and negligently stealing.[71] This distinction will lead to different degree of punishment being imposed for each level. However, the reality is that, except for murder, no other offence fits the hierarchal system. In fact, different individuals who commit an offence with varying degrees of culpability are punished similarly. This means, a person committing an act with a lower level of capability will be punished similarly to the person who commits an act with a higher degree of culpability.

Furthermore, Peter Karlen argues that different degrees of mens rea were adopted by the penal code so that punishment can be given according to varying levels of harm.[72] However, he believes that the application of varying degrees of culpability is hindered by the usage of inconsistent synonyms. [73] This situation arises when a particular term of mens rea is different for every other crime. For example, in R v Tolson, Stephen said, “ malice means one thing in relation to murder, another in relation to malicious mischief act, and a third in relation to libel, and so of fraud and negligence”. [74] This is also seen in cases where “intent” is defined in many ways. Though, intent commonly means aim, purpose. Sometimes, it so happens that intent includes knowledge as a part of it or a reckless actor who can foresee the result of his actions is said to have the intent to commit the crime.[75] This creates a whole of confusion in separating the varying degrees of culpability, as it gives rise to terms like, “knowledge” and “intent” or “ gross negligence” and “culpable negligence” being used interchangeably in different contexts.

He further alludes that apart from intent and knowledge, no other category focuses on the mental state of the human being.[76] A person's action may be termed as reckless or negligent when there is "lack of definable mental state".[77] Therefore, according to him, recklessness and negligence should not be treated as a degree of mens rea.

The arguments placed by the authors may have a point of their own. However, I believe that terms like "recklessness" and "negligence", which creates maxim confusion should be redefined so that the difference between the degrees are clear. However, Kenneth Simons argument of increasing scope of recklessness to account for negligence cannot be incorporated to solve this problem, as then the individual will get punished for his state of indifference and not for the act that caused the harm.

While, Douglas N Husk’s argument that punishment for every offence should be separate for different degrees cannot be accepted since that will lead to a whole lot of confusion in our penal code. This process would be really cumbersome for the draftsmen who would have to decide four different punishments for different degrees of the same offence. Also, this process may be futile for certain crimes like rape, arson since you cannot differentiate these acts into intently raping or recklessly raping.

However, I agree with the arguments of Peter Karlen, which states that the traditional definition of mens rea and various synonyms of mens rea has created a whole lot of confusion in defining the degrees of culpability. Therefore, to make the hierarchal system of mens rea viable, we should revaluate the mens rea and define each and every degree of mens rea carefully.


On tracing the development of mens rea over the years, we find that the concept of mens rea is holistic, and hence it is impossible to assign a static meaning to it. Mens rea has been involving with the changes in the objectives of the penal system of the society. As mentioned earlier, mens rea was absent from the criminal system until the 13th century. It is only due to efforts of the church and the roman notions of “dolus” and “culpa” that mens rea could emerge as a concept. After which landmark cases in the 18th century, such as, R v . Prince[78] and R v. Tolson[79], tried to define mens rea in a single term. Where the former case held “mens rea means an intent to commit some criminal offence”[80] and the latter case held “mens rea meant an intent to do something that is morally wrong”[81]. This further created a lot of confusion in the courts since the standard of morality was different for different judges. That is when the judges, redefined mens rea in a hierarchal form to bring a somewhat clear understanding of the doctrine of mens rea. Finally, in the 21st century, the courts have settled for hierarchy of relative culpability. This may be regarded as a big step forward and away from lder law. However, I believe that the lawmakers need to work upon the varying degree of mens rea to bring the doctrine of mens rea to its absolute perfection.

[Simran Upadhyaya and Sri Hari Mangalam are third year law students at the National University of Juridical Sciences, Kolkata.]

[1] Francis Bowes Sayre, MENS REA, Harward Law Review, Vol. 45, No.6, 974 (1932). [2] Eugene J. Chesney, Concept of Mens Rea in Criminal Law, Journal of Criminal Law and Criminology, Vol.29, No.5, 627 (1939). [3] Id., 627. [4] Sayre, supra note 1, 975. [5] Sayre, supra note 1, 975. [6] Chesney, supra note 2, 628. [7] Sir Frederick Pollock, The History of English Law before the Time of Edward I, January 31, 2010, available at (Last visited on April 2, 2020). [8] Chesney, supra note 2, 629. [9] Chesney, supra note 2, 629. [10] Sayre, supra note 1, 981. [11] H.D.J. Bodenstein, Phases in the Development of Criminal Mens Rea, South African Law Journal, Vol. 36, No. 4, 330 (1919). [12] Id., 333. [13] Id., 333. [14] Sayre, supra note 1, 980. [15] Sayre, supra note 1, 983. [16] Eugene J. Chesney, Concept of Mens Rea in Criminal Law, Journal of Criminal Law and Criminology, Vol.29, No.5, 630-631 (1939) ; Sir Frederick Pollock, The History of English Law before the Time of Edward I, January 31, 2010, available at (Last visited on April 2, 2020). [17] Sayre, supra note 1, 984. [18] Sayre, supra note 1, 984. [19] Chesney, supra note 2, 631. [20] Sayre, supra note 1, 985. [21] Chesney, supra note 2, 632. [22] Chesney, supra note 2, 632. [23] Chesney, supra note 2, 634. [24] J.W. Cecil Turner, Kenny’s Outlines of Criminal Law 26 ¶ 14 (Indian Economy Reprint 2002). [25] Id., 27 ¶ 15. [26] Id., 27 ¶ 15. [27] K I Vibhute, P S A Pillai’s Criminal Law 41 (14th ed., 2019). [28] Turner, supra note 24, 28 ¶ 16. [29] Turner, supra note 24, 28 ¶ 16. [30] Turner, supra note 24, 28 ¶ 16. [31] Peter H. Karlen, Mens Rea : A New Analysis, Univeristy of Toledo Law Review, Vol.9, No. 2, 193 (1978). [32] Id., 208. [33] Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32, ¶ 13 at 42. [34] Vibhute, supra note 27, 44. [35] J.L.J Edwards, The Criminal Degrees of Knowledge, The Modern Law Review, Vol. 17, No. 4, 296 (1954). [36] Vibhute, supra note 27, 47. [37] Edwards, supra note, 296. [38] Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32, ¶ 13 at 42. [39] Vibhute, supra note 27, 47. [40] Turner, supra note 24, 37 ¶ 24. [41] Turner, supra note 24, 36 ¶ 24. [42] Turner, supra note 24, 37 ¶ 24. [43] Vibhute, supra note 27, 47. [44] Alishter Anthony Pareira v. Sate of Maharashtra, (2012) 2 SCC 648, ¶ 37 at 662. [45] Turner, supra note 24, 38 ¶ 25. [46] O.C.M. Davis & G. Hope-Scott, The Incidence of mens rea in Negligence, The Journal of Criminal Law, Vol.15, No.4, 398 (1951). [47] Id., 398. [48] Id.,399. [49] R v Bateman, (1927) 19 Cr. App. R. 8, at 4. [50] Andrews v Director of Public Prosecutions, [1937] A.C. 576, at 2 & 5. [51] Albert J Harno, Some Significant Developments in Criminal and Procedure in the Last Century, Jounral of Criminal Law and Criminology, Vol. 42, No.4, 430 (1951). [52] Id., 430. [53] George P. Fletcher, The Theory of Criminal Negligence: A Comparative Analysis, University of Pennslyvania Law Review, Vol. 119, No.3, 410 (1971). [54] Turner, supra note 24, 39 ¶ 25. [55] Id., 39 ¶ 25. [56] Id., 39 ¶ 25. [57] Vibhute, supra note 27, 35. [58] Rathnashalvan v State of Karnataka, (2007) 3 SCC 474, ¶ 8 at 477. [59] Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, ¶ 14 at 17. [60] Kenneth W. Simons, Should the Model Penal Code’s Mens Rea Provisions Be Amended?, Ohio State Journal of Criminal Law, Vol. 1, No. 1 (2004). [61] Id., 46, 196. [62] Simons, supra note 46, 196. [63] Simons, supra note 46, 197. [64] Simons, supra note 46, 197. [65] Simons, supra note 46, 197. [66] Simons, supra note 46, 198. [67] Simons, supra note 46, 198. [68] Simons, supra note 46, 199. [69] Simons, supra note 46, 199. [70] D.N. Husak, The Sequential Principle of Relative Culpability, Legal Theory, Vol.1, Issue 4, 503. [71] Id., 503. [72] Karlen, supra note 31, 208. [73] Karlen, supra note 31, 209. [74] R v. Tolson, (1889) 23 QBD 168, at 187. [75] Karlen, supra note 31, 215. [76] Karlen, supra note 31, 212. [77] Karlen, supra note 31, 212. [78] R v. Prince, (1875) LR 2 CCR 154. [79] R v. Tolson, (1889) 23 QBD 168. [80] Sayre, supra note 1, 1024. [81] Sayre, supra note 1, 1025.

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