Mens rea ascription, expertise and outcome effects: Professional judges surveyed

Cognition 169:139-146 (2017)
Authors
Markus Kneer
University of Zürich
Abstract
A coherent practice of mens rea (‘guilty mind’) ascription in criminal law presupposes a concept of mens rea which is insensitive to the moral valence of an action’s outcome. For instance, an assessment of whether an agent harmed another person intentionally should be unaffected by the severity of harm done. Ascriptions of intentionality made by laypeople, however, are subject to a strong outcome bias. As demonstrated by the Knobe effect, a knowingly incurred negative side effect is standardly judged intentional, whereas a positive side effect is not. We report the first empirical investigation into intentionality ascriptions made by professional judges, which finds (i) that professionals are sensitive to the moral valence of outcome type, and (ii) that the worse the outcome, the higher the propensity to ascribe intentionality. The data shows the intentionality ascriptions of professional judges to be inconsistent with the concept of mens rea supposedly at the foundation of criminal law.
Keywords Mens rea  expertise  criminal law  mental states  theory of mind  intentionality  outcome effect  Knobe effect  severity bias
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DOI 10.1016/j.cognition.2017.08.008
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References found in this work BETA

Person as Scientist, Person as Moralist.Joshua Knobe - 2010 - Behavioral and Brain Sciences 33 (4):315.

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Citations of this work BETA

Perspective and Epistemic State Ascriptions.Markus Kneer - 2018 - Review of Philosophy and Psychology 9 (2):313-341.

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