Mens rea or "guilty mind" is the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed. It is a necessary element of many crimes.
Consciousness is a tricky concept, but most/all of us recognise it in ourselves. It is uncertain exactly how much effect it has on our behaviour, with the famous Libet experiments indicating that in some situations at least it may not be involved in decision making that is otherwise assumed to be conscious. One thing we can agree on is that it is a function of the higher brain, the cerebrum, rather than the lower and more primitive parts of the brain that control things like our heart.
Does a Mens rea need to be a conscious guilty mind to be found responsible for a crime, or does an unconscious mind have the capacity to be guilty?
The case that I was thinking about was abortion, and the criminal liability that between elective and spontaneous abortion. If we regard the implications of the spontaneous abortions that occur following traumatic events, and we assumed that certain currently unknown scientific facts were determined:
- Consciousness does have an effector role on behaviour
- The spontaneous abortions that occur following traumatic events are mediated by the brain stem, ie. defiantly in the subconscious part of the brain
- This effect can be triggered consciously, perhaps by thinking about stressful things every few hours for a few days
Given that causing an abortion is illegal in the jurisdiction considered, what would constitute a guilty mind in this situation? An abortion triggered by an extraneous stress (such as 9/11 as in the study), because the mind was involved? An abortion triggered by an internal stress, perhaps the decision to change jobs or move house? An abortion triggered by intentional stress, generated for the purpose of causing the abortion?
