Does Mens rea need to be concious?
<p><a href="https://en.wikipedia.org/wiki/Mens_rea" rel="nofollow noreferrer">Mens rea or &quot;guilty mind&quot;</a> 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.</p>
<p>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 <a href="https://www.informationphilosopher.com/freedom/libet_experiments.html" rel="nofollow noreferrer">the famous Libet experiments</a> 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.</p>
<p>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?</p>
<p>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 <a href="https://doi.org/10.1093/humrep/deh763" rel="nofollow noreferrer">the spontaneous abortions that occur following traumatic events</a>, and we assumed that certain currently unknown scientific facts were determined:</p>
<ul>
<li>Consciousness does have an effector role on behaviour</li>
<li>The spontaneous abortions that occur following traumatic events are mediated by the brain stem, ie. defiantly in the subconscious part of the brain</li>
<li>This effect can be triggered consciously, perhaps by thinking about stressful things every few hours for a few days</li>
</ul>
<p>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?</p>

<p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" rel="tag">england-and-wales</a></p>
<p><a href="https://www.inbrief.co.uk/court-proceedings/automatism-as-a-criminal-defence/" rel="nofollow noreferrer"><strong>Automatism</strong></a></p>
<blockquote>
<p>If a defendant ... can show that they committed a crime as the result of an involuntary act they may be able to plead the defence of automatism.</p>
</blockquote>
<p>Note that:</p>
<blockquote>
<p>It is up to the jury to decide whether the defence is made out and that the defendant was acting involuntarily due to an external factor.</p>
</blockquote>

<h2>The mind is not the brain</h2>
<p>Legally, that is. Scientifically, there is no mind, only brain.</p>
<p>Science and law are different domains of human knowledge. Like cattle ranching and modern dance. The rules of one do not apply in the domain of the other.</p>
<p>Notwithstanding, where mens rea is a requirement of a criminal act (which is not always) the acts rea is also required.</p>
<p>I can wish you were dead for asking such a stupid question but unless and until I take some definite act towards that end, I’m not guilty.</p>
<p>Only kidding, I think the question is fine: I wish you were dead because I’m a psychopath.</p>

legal-terms mens-rea