Mens Rea

The term "Mens Rea" is latin for guilty mind. Doesn't mean much to most people, but it's deeply etched into most law students' minds after the first year of law school. Deeply etched, because it is a component of every crime, as important as the facts of whether someone did or did not commit the crime itself. First you determine if there was a crime, then you determine to what extent the author of the crime had a "guilty mind"

Without doubt, there's lots of folks out there with guilty minds after a gunman opened fire on a town-hall meeting with Arizona Congresswoman Gabby Gifford yesterday. Rightfully so. But in the law, in our own thought processes, it's important to be careful to distinguish levels of guilt.

Many are ready to throw Sarah Palin and Jared Lee Loughner, suspected shooter, into the same bucket of responsibility. That's certainly not right. One used inflammatory political rhetoric and imagery to serve her political needs, the other alleged pulled out a semi-automatic weapon and fired on human beings at close range. The former is, at worst, negligent. The latter is, if true, almost certainly guilty of premeditated, intentional, first-degree murder.

The law likes to distinguish between levels of responsibility, and so should non-lawyers. I'm no fan of Sarah Palin. But in my opinion, she shares almost no responsibility for what happened. She was not negligent, because no reasonable person would have taken her target imagery to mean that Palin wanted to remove Gifford, or any other Democratic representative, with violent force.

But, starting yesterday, our state of awareness has changed. Now, as if we needed reminding, it was shown to us in painful 3-D that not everyone who is on the receiving end of these images is reasonable.

The inflammatory language of the tea party has always been reckless. But now we can't pretend otherwise. Now, anyone who uses inflammatory rhetoric involving "guns," "charges," "revolution," and "targets" must be held to a higher standard. They moment the words are uttered, the implicit responsibility for what comes next begins to accrue.