Legalese: “Mens Rea”

We’ve heard the term in reference to crimes but what does it mean?  Put simply – mens rea refers to criminal intent and is Latin for “guilty mind.”  It is rooted in the Latin phrase actus non facit reum nisi mens sit rea which means “the act does not make a person guilty unless the mind be also guilty.”

There are some strict liability crimes (e.g., statutory rape) but most crimes require that the defendant had a certain level of mens rea.  The criminal statute establishes the requisite mens rea by use of the terms “intentionally,” “knowingly,” “recklessly,” or “negligently.”  If the statute or regulation is silent, then “recklessly” is typically inferred by the courts as the requisite mens rea.

To illustrate, ranchers can be held liable for criminal trespass on federal land.  Specifically, a cattle rancher may be held liable for criminal trespass on Forest Service land pursuant to 36. C.F.R. 261.7.  The regulation proscribes:

(a) Placing or allowing unauthorized livestock to enter or be in the National Forest System or other lands under Forest Service control.

(b) Not removing unauthorized livestock from the National Forest System or other lands under Forest Service control when requested by a forest officer.

(c) Failing to reclose any gate or other entry.

(d) Molesting, injuring, removing, or releasing any livestock impounded . . . while in the custody of the Forest Service or its authorized agents.

Id. The courts view the required mens rea for criminal trespass on federal Forest Service land as “recklessness.”  See U.S. v. Semenza, 835 F.2d 223 (9th Cir. 1987).  This means that a rancher can be criminal prosecuted for criminal trespass under this regulation if he/she should have known and could have reasonably prevented his/her sheep or cattle from entering Forest Service land without a permit.