Four-Level Mens Rea Scale: Criminal Law Doctrine and Judicial Practice

Aim. To justify inappropriateness of simplifying the Russian doctrine of fault elements by abandoning some of mens rea types, including in relation to the crimes where the consequences are not considered mandatory (formal compositions) that dominate the Criminal Code of the Russian Federation.

Methodology. The study is based on a comprehensive analysis of criminal legislation, judicial practice and concepts of the criteria for dividing mens rea into four types. Statistical analysis was used to assess the frequency of indicating the type of mental state in court verdicts handed down for homicide. An axiological approach was used to substantiate the need for the existence of dolus eventualis and recklessness.

Results. It is substantiated that in the theory of criminal law it is unacceptable to focus on easily understandable criminal acts, even if they constitute the majority of cases. The task of science is a detailed description of the issue under study, identifying all possible types of mens rea. It is concluded that for the courts to more easily use complex theoretical constructions to justify their decisions, it is much more effective not to remove “unnecessary” types of mens rea with a transition, in essence, to “punishment for consequences”, but to make science and practice actively interact through the amicus curiae.

Research implications. The proposals and conclusions contained in this article may form the basis for further clarification of the criteria for dividing mens rea, as well as the possibilities for the practical implementation of the amicus curiae institution.

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