Latin is obsolete but for vestiges in our English language. So, too of course, is the concept underlying the Latin term "mens rea" i.e. "guilty mind" in our criminal culture. Our police authorities are launching detailed, resource-laden investigations over wildfires in the mountains because they want to find the bad guys who torched the mountains. Maybe there aren't any bad guys. Hemingway once said, "Sometimes sharks are just sharks." So, in Hemingway-esque manner, sometimes accidents are just accidents. No one was irresponsible or carried any evil/criminal intent.
Now, in first year law school, most of us learn about "mens rea" in our Criminal Law classes, the "intent" of a crime. Suffice it to say for our purposes here that "mens rea" is simply Latin for "guilty mind."
There are levels of guilt, or intent, in the human mind according to the criminal code nationwide, and though various states and the federal government see shades of differences, generally all agree that there is a big difference between taking an apple from the produce section of a grocery store because you are starving (thanks Alladin for that), and bludgeoning to death the old grandpa in the car in front of you because he is driving too slowly for you to get past him. Between these examples lies a vast gulf of "guilty mind" levels. I don't like how that previous sentence reads, but it is as close as I can get this morning. There is your Criminal Law 101. Mens rea. Intent.
Notice that what is NOT included in criminal intent is the "accident" scenario - you are driving along a neighborhood street, completely sober, obeying every law in a car that meets all standards, and a child runs out from between two parked cars at the last second before you are on top of them. The absolute worst outcome and literally no intent to harm involved, not even stupidity.
What I have not addressed, and apparently what is the impetus for my writing today, is the "guilty mind" level that precedes the apple example, but before the car and little child. It is something we see in both traffic tickets and dog bites in the State of Colorado. We call it "strict liability" in the legal sysem, and it means if it happens on your watch, you have committed a crime, whether or not you had the specific intent to do so. You are out walking your 2 year old Golden Retriever on a leash at the bike path, passing by a family riding their family bicycles. Your retriever has NEVER showed any signs of aggression or bitten anyone. Today is different. The 4 year old, low to the ground on his new mini-bike with tetra flames and horn, reaches out to touch the dog without warning. The dog defends and bites the hand that does not feed him. He's a dog. He bites. (Public Service Announcement: Dogs bite. If owners tell you the dog is nice and doesn't bite, run. Dogs bite.)
The child was bitten. You had no specific intent on any level to harm that child with your dog. But, you have just earned yourself a "dangerous dog" citation. It does not matter that the dog has never bitten before. It does not matter that the child reached out to pet the dog. What matters is that you failed to restrain the dog, the dog did harm to another person, and YOU are held criminally responsible. No mens rea though, no "guilty mind". You are just held strictly liable for all damage.
To bring that all around to today's thought: We sure are holding a lot more people "strictly liable" for things that are making no sense to me. I think in Colorado at least, it is spawned by a restitution law (criminal law only) that passed some years ago, allowing insurance companies to be "victims" within the meaning of the law, and to get "restitution" from the criminals who caused the damage that the insurance companies had to pay for. So, in order to get a court order for restitution, ya gotta have #1 a crime, #2 a criminal, #3 a victim, and #4 some kind of monetarily-based loss. Then you can have #5 restitution, or payment for the damage of the crime. You break into my home and steal my prized Yugioh card collection. The cops find you. You have sold my prized Yugioh collection. After determining its value (THAT's a riot in itself), the Courts will generally enter a restitution order against you, saying you must pay me that amount of money to restore me.
But did you do anything wrong to cause your dog to bite that little 4 year old? No. The dog, for whatever reason in his instinct, felt threatened, but YOU must pay for it and YOU have violated the criminal code, here in Colorado anyway.
So, during wildfire season in Colorado, I see newsarticles all over about whom to hold responsible, whom to cite for the fires beginning......and I am struck once again that our society spends an inordinate amount of time calling all the wrong folks criminals. There is no mens rea. I think that concept is as dead as the Latin language. We have lost our minds.
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