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Rape and Mens Rea

Published online by Cambridge University Press:  01 January 2020

M.T. Thornton
M.T. Thornton*
Affiliation:
Victoria College, Toronto
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Extract

‘Actus non facit reum nisi mens sit rea.’ But when is a mens rea? In the last twenty years discussions of this question have been stimulated by controversial decisions in the English House of Lords in the cases of Smith, Morgan and Majewski.

The case of Smith decided that a man might be guilty of murder if a reasonable person, knowing the circumstances, would have foreseen that death would result even if the agent himself did not so foresee. This appeal to the ‘reasonable person’ imports what is known as the ‘objective test’ as opposed to the ‘subjective test’ of the agent's actual foresight or knowledge. The case of Morgan inclined per contra to the subjective test.

Type
Research Article
Information
Canadian Journal of Philosophy Supplementary Volume , Volume 8: New Essays in Ethics and Public Policy , 1982 , pp. 119 - 146
Copyright
Copyright © The Authors 1982

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References

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