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A subjunctive standard for mens rea Bateni, Setareh
Abstract
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.
Item Metadata
Title |
A subjunctive standard for mens rea
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Creator | |
Publisher |
University of British Columbia
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Date Issued |
2009
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Description |
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.
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Genre | |
Type | |
Language |
eng
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Date Available |
2010-03-09
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Provider |
Vancouver : University of British Columbia Library
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Rights |
Attribution-NonCommercial-NoDerivs 3.0 Unported
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DOI |
10.14288/1.0069253
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URI | |
Degree | |
Program | |
Affiliation | |
Degree Grantor |
University of British Columbia
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Graduation Date |
2010-05
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Campus | |
Scholarly Level |
Graduate
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Rights URI | |
Aggregated Source Repository |
DSpace
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Item Media
Item Citations and Data
Rights
Attribution-NonCommercial-NoDerivs 3.0 Unported