Rethinking the Presumption of Mens Rea

This paper answers a question that has divided courts and scholars, namely: To which elements of a criminal offense does the traditional presumption of mens rea apply? Scholars long ago settled on the view that the presumption applies to every objective element — every proscribed result, for example, and every attendant circumstance. Courts, on the other hand, usually have held that the presumption applies only to elements that “make the conduct criminal” and not to elements that make the conduct a more serious offense. In this paper, I will argue that both views are problematic and that the right answer to the question of the presumption’s scope lies somewhere in between. The right answer, as Justice Stevens once suggested, is that the presumption of mens rea applies to every element except those designed exclusively to measure the degree of harm inflicted by the actor’s conduct. The reason why this is the right answer is that elements designed to measure instead the risk posed by the defendant’s conduct ordinarily cannot perform their function — cannot tell us anything about the wrongfulness of the actor’s conduct — without being assigned a mental state.