Aspects of Mens Rea

Question 1

In legislation

Answer 1

NL :

• Murder - Art. 289
• Manslaughter - Art. 287
• Negligent manslaughter - Art 307(1)
• ‘Recklessness’ - Art. 307(2)

GR :

• Murder - Art. 211
• Manslaughter - Art. 212
• Negligent manslaughter - Art. 222

UK :

• Murder - Intention to kill + cause grievous bodily harm = Life imprisonment
• Voluntary manslaughter - Mens Rea for murder but mitigating circumstances
• Involuntary manslaughter - Mens Rea for murder is missing

Question 2

Civil law - Direct intent

Answer 2

Knowledge and willfulness

Question 3

Civil law - Indirect intent

Answer 3

Offender foresees the consequence of his conduct as almost certain

Question 4

Civil law - Conditional intent

Answer 4

1. Awareness of a risk

2. Acceptance of the risk (without desiring them)

Question 5

Civil law - Conscious negligence

Answer 5

Offender is aware of the consequence but wrongfully believes it will not happen

Question 6

Civil law - Unconscious negligence

Answer 6

Offender wrongfully does not consider the consequences of his conduct - Requires a gross violation of a duty of care

Question 7

Common law - Recklessness

Answer 7

From the perspective of the defendant:

1. Creation of an obvious risk
2. Knows about it and still takes it
3. Or has not seen the risk at all

Cunningham v. Caldwell

Question 8

Common law - Negligence

Answer 8

You do not see the risk

What’s the difference with recklessness?