Fordham Law Review
This article explores the problem of seemingly bad acts that go unpunished because the actor lacked knowledge of some fact necessary for conviction, most particularly in circumstances in which the harm done and the actor involved seem precisely those that the crime was intended to address. It first dissects an emotionally compelling rape case in which courts used a variety of theories to inculpate a defendant who did not have the mens rea required for the crime. In this first part, it explores the very confused state of the law regarding the mens rea of rape. In the second part, this rape case and other examples are used to analyze the larger problem of noncriminal bad acts. The article investigates the cause of this phenomenon and several possible remedies, including: lowering the mens rea of all knowledge level crimes; manipulating the doctrine of willful blindness, sometimes used as a knowledge substitute; and formulating a new mens rea of culpable "indifference." It concludes that none of these suggestions proves entirely satisfactory, and that attempts to correct this particular problem could result in even greater injustice.
Bad Acts in Search of a Mens Rea: Anatomy of a Rape, 71 Fordham L. Rev. 263
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