Connecting Mens Rea and Actus Reus: Toward a New Theory of Correspondence

The justifiable imposition of criminal liability requires more than possession of mens rea and performance of an actus reus. A defendant’s mens rea and actus reus must also connect in a particular way. While this is a well-recognized principle in Anglo-American criminal law, the nature of the required connection—“correspondence”—is poorly understood.

This Article identifies three conflicting existent theories of correspondence from the criminal legal literature and from judicial reasoning: contemporaneity theory, actuation theory, and normative theory. According to contemporaneity theory, correspondence requires that mens rea overlap in time with the actus reus. According to actuation theory, correspondence requires that mens rea cause the actus reus in a particular way. According to normative theory, correspondence requires that certain normative facts be true—for example, that an actus reus be a moral wrongdoing in virtue of the defendant’s mens rea.

In this Article, I argue each existent theory shares a common flaw: Each theory supposes a necessary condition for correspondence that is not genuinely necessary. In the absence of a better theory, there is no reliable way of sorting out defendants who should be acquitted for lacking correspondence from those defendants who need not, and courts cannot provide honest explanations for why a defendant falls in one or the other group.

I go on to harness what is useful about existent theories to propose a path toward a better theory of correspondence. Normative theory points the way to a “job description” for correspondence—a posit regarding what work correspondence performs in securing the truth of claims about the justifiable imposition of criminal liability. The posit is that correspondence operates to ground a defendant’s moral culpability for performance of an actus reus in virtue of mens rea. With this job description in hand, one can appreciate that unlike contemporaneity, actuation proves sufficient for correspondence. A new theory of correspondence should build off actuation theory by locating similarities between actuation and other relations that can do the work of grounding moral culpability.

I conclude by noting how a theory of correspondence can provide payoffs beyond criminal law—within any doctrinal arena that has come to be “criminal-law-like” through a dichotomization of thought and conduct.