Type One Baron Negligence and Mens Rea

Baron starts out his writing by examining the traditional definition of mens rea as a “mental state”. When applied to the concept of negligence this makes less sense, in every example Baron comes up with it would be a stretch to define negligence as a mental state. However negligence is seen as a type of mens rea in criminal law. Baron asserts that we should not approach mens rea as a mental state, we should examine it through the lens of culpability.

He uses a great example of parents who leave their child in the bath when greeting surprising guests. The risk they put the child in is not purposeful, yet the culpability for that risk lies entirely with them, and any reasonable person would have been aware of that risk. Thus their negligence fits mens rea without necessarily being a “mental state.”

He also discusses the concept of negligence as a “failure of belief” in the risk, in reference to Stark’s writing on rape. This discussion ties into his culpability standard because refusal to believe in a reasonable standard of risk would establish mens rea for the perpetrator. He uses this discussion to argue that an inculpatory factor should be able to be conduct based.

An Inculpatory factor as defined by Baron is supposed to be added by mens rea in criminal proceedings. However negligence doesn't seem to add this factor. He claims if you view culpability as the lack of excusing factors then negligence would add inculpatory factor.

Baron concludes by asserting that he may have brought up more new questions than he answered, however the discussion on negligence can be developed further and his questions push thinkers to do so. His questions on culpability and intent serve to hold law makers and enforcers accountable for punishment to be well thought out and fit to the crime.