By: Jerry Yan, PO ’18
Two maxims are central to the practice of criminal law: “beyond a reasonable doubt” and “innocent until proven guilty.” Both have appeared in countless movies, TV shows, and news articles. A third concept, equally important but less ubiquitous, is that a person should only be punished if he or she has a requisite degree of criminal intent, or mens rea.
However, the text of the Pomona College Student Code does not reflect that principle. Under the current Code, a student could well be punished for an accident, or other circumstances beyond his or her control. In order to prevent such an occurrence, the Pomona Student Code must be rewritten to define offenses using a two-pronged framework: actus reus, or the action itself, and mens rea, or the requisite mental state.
The term mens rea originates from the Latin phrase “actus reus non facit reum nisi mens sit rea.” In English, the phrase translates roughly to “an act does not make a defendant guilty without a guilty mind.”[1] According to this phrase, there are two things that make up a criminal action: the actus reus, or the action itself, and the mens rea, or the defendant’s mental state. Many criminal statutes around the world, including many in the United States, employ this two-part framework in writing Penal Codes. Consider, for example, the Federal definition of murder:
18 U.S.C. § 1111(a)
The unlawful killing of a human being with malice aforethought.
The statute can be broken down like so:
- actus reus: unlawful killing of a person
- mens rea: malice aforethought[2]
Thus, in order to find someone guilty of murder, a Federal jury must find that the defendant killed someone unlawfully and showed malice aforethought. Finding that the defendant unlawfully killed someone is necessary, but not sufficient to convict under the murder statute. Unless the prosecutor can show that the defendant demonstrated malice aforethought, the defendant cannot be found guilty of violating 18 U.S.C. § 1111(a). The same is true, of course, in the other direction: merely possessing the appropriate mens rea is not enough to convict someone under this statute. However, that is not to say that the defendant could not be found guilty under some other statute, rather, it just would not be the murder statute.
Federal law also defines many other crimes using this two-pronged framework. For example, consider the federal definition of arson, where the actus reus is italicized and the requisite mens rea is underlined:
18 U.S.C. § 81
[When a person] willfully and maliciously sets fire to or burns any building, structure, or vessel.
Similar constructions are found in the laws of all 50 states and countries around the world. However, there is tremendous variation in what the requisite mental state is for a given crime. Furthermore, the definitions and classifications of the mental states themselves vary based on the jurisdiction, even among the 50 states.
In an attempt to standardize American criminal statutes, the American Law Institute released the Model Penal Code (“MPC”) in 1962. In addition to providing definitions for many crimes, the MPC also defines four discrete criminal mental states:
- Purposely (Intentionally) – When a person acts with the purpose/intent to produce a specific result.
- Knowingly – When a person acts knowing that his or her actions will practically certainly give rise to a specific result.
- Recklessly – When a person consciously disregards a substantial and unjustifiable risk associated with his or her actions.
- Negligently – When a person should have known about a substantial and unjustifiable risk associated with his or her actions.[3]
Despite their importance to defining criminal statutes, these mental states are missing from much of the Pomona College Student Code. In other words, the Pomona College Student Code defines proscribed conduct solely as the action itself without the corresponding mental state. Consider the Pomona College Student Code’s definition of forgery with the U.S. Code’s definition and the MPC’s definition. Again, the actus reus is italicized and the mens rea is underlined.
Pomona College Student Code art. III cl. 1
Violations of the student code include […] forgery, alteration or misuse of any college document, form, record, time sheet or instrument of identification.
18 U.S.C. § 471
[When a person] “with the intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or security of the United States.”
Model Penal Code Art. 224 § 224.1 (1)
A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
- alters any writing of another without authority; or
- makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act […]
“Writing” includes printing or any other method of recording information […] and other symbols of value, right, privilege, or identification.
While both the U.S. Code’s definition and the MPC’s definition clearly specify the requisite mens rea, the Pomona Code does not address the matter. This poses a very significant problem that can be illustrated by a series of hypothetical situations.
Consider two Pomona students, Fred and Kelly. Fred, a twenty-year-old student, photocopies his ID, changes the birthday on the photocopy, and tries to get alcohol with it. Kelly, on the other hand, photocopies a friend’s ID and draws a mustache on the picture as a prank. Both Fred and Kelly clearly committed an alteration of an identifying document, satisfying the actus reus portions of each of the three statutes. Additionally, Fred had a clear intent to defraud, that is, he acted with the intention of deceiving someone so he could get alcohol. However, Kelly clearly did not act with the intent to defraud as she never intended to use the altered ID as an actual ID. As such, Kelly does not have the sufficient mens rea to be convicted under either the federal or MPC statute.[4] Nonetheless, because there is no mens rea component in the Pomona statute, she, along with Fred, would likely be found responsible under the Pomona College Student Code’s definition of forgery and face additional repercussions. Surely any reasonable person would agree that while it would make sense to punish Fred, punishing Kelly would be entirely nonsensical.
But even if Kelly were to be punished, at least her actions were intentional. The problem with the lack of a mens rea clause becomes even more apparent when people are punished for unintentional actions. The Pomona College Alcohol Policy reads in part:
Pomona College Alcohol Policy Art. I § 2
Students under 21 years of age may not consume, possess, distribute, or sell any alcoholic beverage.
John, an 18-year-old Pomona first-year, is walking down the hall when someone comes running around corner with a bottle of beer yelling “An RA is coming!” The person thrusts the bottle into John’s hands and runs away. Before John realizes he is holding a bottle of beer, the RA turns the corner and writes John up for violating the Alcohol Policy. Under the current text of the Pomona College Student Code and the Alcohol Policy, John would be sanctioned for violating the Alcohol Policy despite really only being guilty of being in the wrong place at the wrong time.
Similarly, what if John had his juice spiked with vodka while at a party during substance free opening without him knowing and he drank it? The statute governing substance free opening is as follows:
Pomona College Alcohol Policy Art. I § 15
From the time that students arrive on campus in August until the beginning of the second week of classes, the College does not permit alcoholic beverages to be served or consumed on campus. […] All students, regardless of age or class standing, are required to observe Substance Free Opening.
John’s conduct clearly qualifies as consumption – despite that he never intended to consume alcohol. He would then have to complete 10 hours of community service, pay a $100 fine, and would be barred from returning early to campus the next year. This “violation” would foreclose opportunities like being a sponsor or a student mentor – hardly fair treatment to someone who didn’t know what he was doing.
To be sure, mens rea qualifiers in the Pomona College Student Code could – and would – be abused. For instance, some students could attempt to falsely claim that they were unaware they were consuming alcohol to get away with violating the alcohol policy. So long as a mens rea clause were added, some would invariably attempt to abuse it.
There are, however, some safeguards for this inevitability. First, the threat of further sanctions for lying would deter students from lying to abuse mens rea. Secondly, as many students can attest to, most students who are caught violating the Alcohol Policy are caught doing so at a party, where there are other witnesses. Of course, witnesses are biased. Witnesses can lie. Witnesses can be forgetful. Witnesses at a party with alcohol can be especially forgetful. But the same is true even without a mens rea clause. Moreover, as the famed legal theorist William Blackstone wrote, “it is better that ten guilty persons escape than that one innocent suffer.”[5]
Additionally, mens rea is not a means for alleged policy violators to claim ignorance of the law itself. For example, John could certainly argue that he shouldn’t be found guilty because he didn’t know he consumed alcohol, but cannot argue that he shouldn’t be found guilty because he didn’t know about Substance Free Opening. In the words of the current Chief Justice of the United States:
This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim “ignorance of the law is no excuse” typically holds true. Instead, [the Supreme Court has] explained that a defendant generally must “know the facts that make his conduct fit the definition of the offense,” even if he does not know that those facts give rise to a crime.[6]
In other words, unknowingly doing something is distinct from not knowing what the law is. Including a mens rea clause does not give alleged policy violators the opportunity to claim that they did not know the rules; rather, it merely ensures that students don’t get punished for genuine accidents or happenstance.
It is true that the Pomona administration exercises a great deal of prosecutorial discretion and that people like John or Kelly would likely never be prosecuted even if their actions somehow came to Pomona’s attention. It is also true that the alleged offender’s attitude is a factor to be considered when deciding punishments and sanctions. However, a small likelihood does not imply impossibility. Moreover, there are matters of principle at stake here: rules are written to be enforced, not to be disregarded. No one should ever be punished, no matter how lightly, for something silly or for something they frankly do not deserve to be punished for. Additionally, individuals who find themselves in situations like Kelly or John would have their “violations” put on their permanent previous conduct record. That could go on to affect their ability to participate in College programs like study abroad or RHS (sponsors and RA’s) and would lead to harsher sanctions should either of them ever break the Pomona College Student Code again, whether accidentally or intentionally.
Adding mens rea clauses to the definitions of each form of proscribed conduct would obviously be a very dramatic and fundamental shift in the Pomona College Student Code. Large portions of the Student Code and other policies, including the Alcohol and Substances Policies, would have to be rewritten from the ground up. In the first place, the Code should be written in a similar manner to the statutes in the MPC, both structurally and substantively. The first part of the new Pomona Student Code should contain a series of definitions of jargon and basic terms, including the four mental states. From there, the rest of the Code should be focused on defining individual offenses and forms of proscribed conduct that includes the actus reus and a mens rea qualifier. For example, a new forgery statute could read like so:
Forgery. When a person, with purpose to defraud or injure any member of the College community, or with knowledge that he/she is facilitating a fraud or injury to be perpetrated by any member of the College community, either:
- alters any College writing without authority, or
- makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of a College official who did not authorize that act.
“Writing” refers to any official College document, form, record, time sheet, or instrument of identification.
This statute would immediately rectify the most glaring flaw in the current definition of forgery. It clearly indicates both the actus reus and the corresponding mens rea. Using the MPC as a model, the College could adapt pre-existing statutes to include mens rea components. However, the College should not by any means adopt the entirety of the MPC. The MPC was never intended to be adopted by a College (or, arguably, by a State either) and is not tailored to the College’s needs. Furthermore, the MPC was merely intended to provide guidance and introduce some degree of uniformity, not to be fully implemented. Moreover, adopting the MPC would pose a multitude of logistical challenges as the document is hundreds of pages long. Instead, the College should use the MPC as a point of reference in the process of designing and drafting a new Pomona College Student Code.
The Pomona College Student Code, as it stands right now, is very much an imperfect document. Adding mens rea to the definitions of the various forms of proscribed conduct would not resolve all of the Pomona Code’s faults, but it would certainly resolve some. Without mens rea requirements built into the definitions of the various offenses outlined in the Pomona student code, some hapless student will inevitably be punished for an accident or other circumstances beyond his or her control. It is well within the Pomona administration and student government’s power to prevent that from ever occurring and there is little doubt that they should do so.
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[1] http://www.duhaime.org/LegalDictionary/A/ActusReusNonFacitReumNisiMensSitRea.aspx
[2] “Malice aforethought” refers to when the defendant thought about or planned to kill the person in question before it happened as opposed to killing that person in the heat of the moment in response to some kind of provocation. It is commonly referred to as “premeditation.”
[3] Model Penal Code Art. 2 §§ 1.12, 2.01, 2.02
[4] Although there is a conceivable argument that Kelly had the intent to injure her friend, a claim over such a small “injury” would likely be resolved in civil court, not criminal court. The larger point stands: the Pomona College Student Code’s definition of forgery is flawed.
[5] Blackstone, Commentaries on the Laws of England (1765)
[6] Elonis v. United States, 575 U.S. ___, ___ (slip op. at 9) (2015), quoting Staples v. United States, 511 U. S. 600, 608, n. 3 (1994) (internal quotation marks omitted)
