A subjunctive standard for mens rea

• Main Author: Bateni, Setareh
• Language: English
• Published: University of British Columbia 2010
• Online Access: http://hdl.handle.net/2429/21716

A fundamental distinction in criminal law is the distinction between actus reus and mens rea, the criminal act and the criminal intent. Two distinct standards have arisen for deciding mens rea: an objective standard and a subjective standard. The purpose of this thesis is to develop a three-step rule that will make it easier to decide whether to apply the objective or subjective standard in cases involving intoxication. Since this rule introduces a subjunctive approach to interpreting mens rea, I call this standard the subjunctive standard of mens rea. The subjunctive standard of mens rea is based primarily on a decision about whether an accused would have had the mens rea required to commit a prohibited act in the absence of alcohol. Thus, the subjunctive standard of mens rea should be used only when the accused is believed to have committed a prohibited act while intoxicated. The test for deciding whether an accused would have had the mens rea required to commit a criminal act is based largely but not exclusively on the accused’s credibility at trial. This thesis in effect gives judges and lawyers a new tool. It introduces a new rule that can be used to decide which standard of mens rea best suits a given case. This three step rule is a rule free from ambiguity and restraint and yet fully consistent with Charter values, something that is important for prosecutors and defendants alike.