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Criminal Offences Without Reference to Mental State


The focal point of this paper would be to evaluate the difficulty of proving state of mind while defining criminal offences and the most accepted mode of action in this context. It is believed, that it would make more sense to define criminal offences without reference to mental state, leaving mental state to be considered at sentencing in aggravation or mitigation of the offence. However, on a personal note, there is a possibility of disagreement and the paper would evaluate the fundamental reasons behind this disagreement.

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Authors Janet Dine, James Gobert, William Wilson states in their book, Cases and Materials on Criminal Law published in 2006, “The most fundamental decision in criminal law relates to what conduct should be made criminal. From this decision all else flow.” This is the point where the argument develops because without reference to mental state or circumstances criminality cannot be established or evaluated. The social problem theory claims that although an individual commits crime, the cause of the individual committing the crime was due to problems within society. On the other side, the social responsibility theory claims that an individual is directly responsible and at fault for the crimes, he or she committed.

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Individuals, especially many of the criminals in our society, grow up in adverse conditions many of which should not exist in the wealthiest society in the world. However, no matter what kind of a background someone has, they still make conscious choices regarding their behavior. A man who chooses to kill his girlfriend because of an argument made a conscious choice, even though it may have happened in a fit of rage, to murder her. If society lets criminals with adverse backgrounds off the hook, it is sending a message to society that you can do whatever you please and not have any consequences. It completely erodes the foundations of America, which state that if you work hard and behave in a morally acceptable way, you can succeed in life. In addition, the majority of social programs to reduce the crime rate are ineffective.

While there are many differences between the social problems and social responsibility approaches, there is one major difference between the two. The social problems approach takes a proactive approach to dealing with crime, while the social responsibility approach is reactive to crime already committed. While there is a proponent of the social responsibility approach, it is believed that the social problems approach is going to take center stage during the twenty-first century and this is where it is planned to use this theory into practice. This is due to a variety of reasons. One of these reasons is the liberal society we are currently living in. Most often, these people are in favor of proactive, social programs that focus on preventing youth from even committing crime, instead of reacting to criminals who have already abused the law.

In addition, the overcrowding of jails throughout the country and the increasing rate of criminals re-entering the criminal justice system after completing time served for their original crime are causing people to question whether the social responsibility approach of imposing stiffer punishments are working. Individuals will instead be seeking out social programs, which seek to prevent more people from entering the criminal justice system. For these reasons, it is believed that pressure will be placed on the government to create social programs. These programs will be aimed at correcting some of the societal problems that contribute to crime according to the social problems approach.

It should be noted that practices and Enforcement policies are instrumental in the case of the individual in concern. The OFE depicts, “The areas in which these offences are perpetrated, as well as the prior income and employment status of prison and jail inmates suggest that drug laws and laws against gambling and prostitution have generally worked against the poor more than they have against the rich.” Thus, it is certain that the mode of criminality is directly related to criminal activities and thus it is directly related to the individual and the state of mind of the individual at the same time.

For a democratic society with its democratic form of government system, it is but an obvious choice to opt for a society that is predominantly merciful and forgiving. The basis norm of a democratic society is to provide its mass with a structural form that offers equality in terms of justice and social characteristic. Hateful attitude, even against criminals, is an unwanted phenomenon but it is also extremely true at the same time that this attitude is a curse that exists among us whether we like it or not. It could be summarized that this is the result of having negative judgments, beliefs, and feelings towards certain identifiable groups or criminal activities.

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In conclusion, it should be stated that the fundamental approach of viewing crime and criminal should change and it should adopt a more humane approach considering the circumstances and the background of the problem that is responsible for the crime or the criminal activity rather than penalizing the criminal itself. To attain this goal, it is important to understand the mental situation of the criminal during the act of offence and then evaluate the nature of commitment against the law.


Dine, Janet. Gobert, James & William Wilson; Cases and Materials on Criminal Law; Oxford University Press: Oxford; 5 edition (2006).

Bartol, Curt R. & Bartol, Anne M; Current Perspectives in Forensic Psychology & Criminal Behavior, 2nd edition; Sage Publications, Inc; 2008.

OFE; Class and Crime – Definition Of Crime; Crime and Justice Vol 1 :: Class and Crime – Definition Of Crime, Measuring Crime, Definition Of Class, Early Work, Shifts In Focus; Law Library – American Law and Legal Information; 2007. Web.

Schmalleger, Frank; Criminology Today: An Integrative Introduction, Fourth Edition; New Jersey: Prentice Hall; 2005.

Fletcher, R; Beliefs and Knowledge; Believing and Knowing. (Mangalore: Howard & Price. 2006) pp 188.

King, H; Justice Today (Dunedin: HBT & Brooks Ltd. 2005) pp 126.

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Lamb, Davis; Cult to Culture: The Development of Civilization. (Wellington: National Book Trust. 2004) pp 243-245.

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StudyCorgi. (2021, September 20). Criminal Offences Without Reference to Mental State.

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