"Mens rea" is a legal term that, in essence, means the state of mind you had to have in order to be guilty of a crime (or other legal charge). My criminal law professor introduced us to the concept by asking us if it was criminal to hit someone in the head with a golf club? Well, it depends on your state of mind. Were you practicing your stroke at the driving range and the club slipped out of your hand accidentally? Or were you chasing someone down in your golf cart, while swinging your club menacingly?
Military and criminal courts have their own interpretations of the mens rea required for particular crimes. As you might imagine, these definitions can often make the difference between guilt and innocence at a trial or court-martial. So I study mens rea and how it is defined in order to put my criminal defense and military justice clients in the best position to prove their innocence of a charge.
I previously wrote about the mens rea revolution and military justice at Global Military Justice Reform. Since that post, CAAF decided multiple mens rea cases, providing more insight into how Elonis has shaped military justice.
Elonis is a U.S. Supreme Court case that interpreted a federal statute outlawing interstate threats.SCOTUS found that, in the absence of clear legislative intent, recklessness was required as the default mens rea to separate wrongful from innocent conduct. Justice Thomas’ dissent in Elonis emphasized that general intent was the background rule in the common law, and it should be adhered to when interpreting mens rea absent drafting requiring specific intent. The majority in SCOTUS implied the common law was concerned with mens rea in the same way as the Model Penal Code, with crimes focused on whether there was intent, knowledge, recklessness, or negligence. So in Elonis, it appears SCOTUS disagreed on the past and what the common law said when prescribing a forward-looking rule. Regardless of who interpreted the past more accurately, Elonis signaled a shift away from general intent as a background interpretative rule when a statute was silent on mens rea.
Post-Elonis¸ the military courts have had to define mens rea in multiple punitive articles absent clear legislative intent. In 2016, CAAF decided US v. Caldwell, where general intent was found as the default mens rea in the military specific crime of maltreatment. For the first few years of CAAF’s post-Elonis cases, it seemed like Caldwell stood on its own. But the last few terms have seen CAAF find general intent as the applicable mens rea requirement, sometimes as specifically required by Congress, and sometimes as the default interpretive one for military offenses.
In United States v. McDonald, CAAF found that under Article 120(b)(1)(B), Congress clearly intended the mens rea requirement of general intent. CAAF came to this interpretation through reading the statute holistically. Article 120(b)(1)(B) makes it a crime to commit a sexual act upon someone without their consent, but it doesn’t specify the mens rea for non-consensual sex. Surely, sexual intercourse is itself not wrong, what makes it wrongful is a lack of consent. So separating wrongful conduct from innocent conduct requires determining the mens rea for whether there was consent for the sexual act.
CAAF found Congress was clear it did not want a higher mens rea than general intent. To make this finding, CAAF looked elsewhere than Article 120(b)(1)(B). First, it found the defense of mistake of fact as to consent is based on an objective standard, that the mistake must be reasonable. Second, CAAF looked at the common law history that found rape to be a general intent crime, and said sexual assault by bodily harm grew from that common law context. Third, they looked at Article 120(g)(8)(C), which found consent is the freely given agreement of the victim. That section says nothing of the accused’s perspective and they determined Congress intended for that to apply to Article 120(b)(1)(B).
Of note, it is interesting to see the interplay of common law concepts and more modern ones like negligence, as the assumption imbued within this opinion appears to be that a general intent crime is akin to a negligence standard. That is, determining if an accused’s mistake of fact was reasonable, an objective standard relevant for negligence, is also determinative for criminal liability in a general intent crime.
In United States v. Voorhees, Appellant argued the military judge erred for failing to give a proper mens rea instruction on the offense of conduct unbecoming an officer. CAAF explicitly held this case was similar to Caldwell, another case involving a military specific offense. CAAF held that general intent applied as the adequate mens rea to separate wrongful from innocent conduct..
While CAAF indicated they are applying Elonis in military specific offenses, it appears that they are carving out an exception to Elonis’ holding for these offenses. Elonis was explicit that recklessness is the minimum mens rea necessary to separate wrongful from innocent conduct, unless there is clear legislative intent to the contrary. The Model Penal Code defines recklessly as when
“A person… with respect to a material element of an offense...consciously disregards a substantial and un- justifiable risk that the material element exists or will result from his conduct.”
Yet for maltreatment of subordinates and conduct unbecoming an officer, CAAF has found the accused’s subjective state of mind is not relevant to whether the conduct was criminal, even though the UCMJ is silent on the mens rea for the key elements. The fact-finder need not determine an accused consciously disregarded any risks before concluding they maltreated a subordinate or acted unbecoming as an officer.
So it appears the post-Elonis cases are not all finding recklessness as the minimum mens rea requirement when a specific punitive article is silent on mens rea, especially in cases involving military specific offenses. As a practical matter, attorneys should be aware of the cases interpreting the mens rea for each punitive article—and object at trial, or draft assignments of error on appeal—where there is no explicit mens rea requirement.
Connecticut attorney Josh Grubaugh is a former active-duty JAG. His current practice includes representing servicemembers in a range of military justice matters, including private representation for courts-martial and appeals. Josh welcomes potential clients to contact him for a free consultation about their cases.