Condoning the Crime: the Elusive Mens Rea for Complicity

Sarch, Alexander (2015) Condoning the Crime: the Elusive Mens Rea for Complicity Loyola University of Chicago Law Journal, 47. pp. 131-178.

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Abstract

There is a long history of disagreement about what the mens rea for complicity is. Some courts take it to be the intention for the underlying crime to succeed while others take mere knowledge of the underlying crime to be sufficient. Still others propose that the mens rea for complicity tracks the mens rea of the underlying crime-the so-called "derivative approach. " However, as argued herein, these familiar approaches face difficulties. Accordingly, we have reason to continue our search for the elusive mens rea for complicity. This Article develops a new account of the mens rea for complicity, drawing on an older approach informed by agency law principles. In particular, I argue that a distinct attitude of condoning the underlying crime is best seen as the mens rea for complicity. This approach yields a more principled framework for determining when accomplice liability is warranted than the existing approaches do. Moreover, it demonstrates that certain reforms to the current legal regime are warranted. Most importantly, the law should recognize that complicity comes in degrees. While reforms of this sort have been previously proposed for reasons relating to causation, this Article argues that different levels of complicity must also be recognized on independent mens rea grounds.

Item Type:	Article
Subjects :	Law
Divisions :	Surrey research (other units)
Authors :	Name Email ORCID Sarch, Alexander a.sarch@surrey.ac.uk
Date :	2015
Copyright Disclaimer :	Copyright 2015 Loyola University Chicago
Related URLs :	Publisher
Depositing User :	Symplectic Elements
Date Deposited :	16 May 2017 15:37
Last Modified :	24 Jan 2020 15:07
URI:	http://epubs.surrey.ac.uk/id/eprint/820935

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