In order to prove someone guilty of the crime with the exception of Strict Liability crimes, the state must show evidence of both actus reus and mens rea. During the period of strict liability, severe punishments were inflicted upon the wrongdoer in order to placate the outraged deity. Later, the linking of human behavior with the harm done replaced the divine link with the harm caused, and such responsibility extended even to animals and inanimate objects like carts, cauldrons, baulks of timber, wheels, boats, and therefore the like. Before inflicting some punishments, not only the actus reus but also the mens rea with which the actus reus is done must be proved beyond doubt.
At such a period of time, criminal law was plain and crimes were also simple and limited in nature. But by the onslaught of the 13th century, serious offenses called felonies came to be recognized and the practice of bot and wit was considered insufficient to punish the guilty. This led to the primary distinction between crime and tort. Moral blame was linked with criminal liability. This change in legal thought was recognition of the mental element in liability. The two necessary elements of the crime are given as under:
- Actus reus in Cyber Crimes
The word actus connotes a ‘mental or spiritual act’ Actus reus may be defined as “such result of human conduct as the law seeks to prevent”. The actus reus of cybercrime is very dynamic and varied. In simple terms, it means a physical result of human conduct and includes all the elements except the mental element. It does not only mean an act but also includes the state of affairs.
The merely guilty intention is not enough to fix the criminal liability but some act or omission on the part of the doer is necessary to complete the offense. Actus reus in cyber crimes has become a challenge as the entire act is committed in intangible surroundings. The perpetrator may leave some footmarks in the machine itself though it becomes a herculean task to prove it in the law courts as it is required to be in physical form or a minimum of in such a form where it becomes admissible evidence.
The element of actus reus in internet crimes is relatively easy to identify but is very difficult to prove. The fact of the occurrence of the act which will be termed as a criminal offense is often said to possess taken place when an individual is making use of computer function, or accessing data stored on a computer or from a computer that has access to data stored outside, or attempt to gain access through internet or passes signals through various computers. In rape cases, the absence of consent on the part of the prosecutrix is an essential constituent of the actus reus. If this absence of consent is not proved by the prosecution then the actus reus of the accused will also not prove and here the prosecution will fail. In this sense, we can say sometimes mens rea is also part of actus reus.
- Mens rea in Cyber Crimes
“The jurisprudence of today knows that no crimes are often committed unless there’s a malice aforethought .”Mens rea is that the second essential element, which constitutes a criminal offense and is usually called ‘a guilty mind’. This interpretation underwent a gradual change until modern criminal law came to regard a guilty mind of some kind or some other such mental element as always being necessary. Mens rea, “guilty mind”, refers to the mal intent of the individual who committed the act. The act remains the same while the state of mind makes the act ‘reus’ and hence an offense. Almost all crimes require proof of a mental element of some sort. Some courts have held that ‘all crime exists primarily within the mind’. Every offense requires a particular state of mind expressed in the particular provision of the law by the words: ‘with intent’, ‘recklessly’, ‘ unlawfully’, ‘maliciously’, ‘wilfully’, ‘knowingly’, ‘fraudulently’, ‘knowing or believing’, ‘dishonestly’, ‘corruptly’, ‘allowing’ and ‘permitting’ expressing various states of mind which are different from each other. However, intention, recklessness, and knowledge are the fundamental tenets of criminal liability.
It consists of a large amount of different mental behaviors like intention, recklessness, and negligence, etc. Intention word is used for the state of mind of a man for not only his ability to foresee but also includes the will of the possible result of his conduct because it is rightly said that there cannot be intention unless there is foresight. If a man wants to do a particular act, he must have reasonable foresight of the result of such actions. Under the Common Law, there is no criminal liability for any loss or harm caused by a person without any intention or any conduct which is not unforeseen.
Mens rea has come to be recognized as an essential element of crime except in statutory offenses where liability is strict. With the advent of e-crimes, the legal world faces the difficulty, besides many others, to pinpoint mens rea in cybercrimes. As an essential ingredient for determining mens rea in internet crime, on the part of the offender is that he or she must have been aware at the time of causing the pc to perform the function that the access intended to be secured was unauthorized. There must be, on the part of the hacker, intention to secure access, though this intention is often directed at any computer and not at a specific computer. Thus, the hackers need not be aware of which computer exactly he or she was attacking. There are two essential ingredients that form the mens rea in case of hacking, firstly, the access intended to be secured must have been unauthorized, and secondly, regarding the access, there should be awareness on the part of the hacker.
The mens rea in the case of cybercrimes comprises two essential elements. First, there must be ‘intent to secure access to any program or data held in any computer, computing system, or network. Secondly, the person must know at the time that he commits the wrongdoing that the access he intends to secure is unauthorized. The nature of cybercrimes and the skills involved are such that the existing legal framework cannot do much to control and contain the same. In fact, cyberspace technology has undermined to a major extent the traditional legal concepts like property and has impacted the rules of evidence like the burden of proof, locus standi, and concepts of ‘mens rea’.
- Criminal Liability in Cyber Crimes
The concept and nature of crime have clearly stated that there are two elements of crime one is mens rea and another is actus reus. Only actus reus is sufficient to impose criminal liability in the crime against State like false evidence, counterfeiting coin, white-collar crime, etc. Under criminal law, it is the general principle that a person cannot be convicted of a crime unless it is proved beyond reasonable doubt by the prosecution and his act or omission is prohibited by the legal code. The person is liable for the same if he had a defined state of mind in relation to the crime committed. It is also considered that an actus reus without mens rea is not a crime and vice versa.
In the case of cybercrime, it is very difficult to prove both elements of Crime. The Actus reus of cybercrime is very dynamic and varied. For example, when a person starts functioning with a computer with the help of a keyboard and mouse and trying to access information on others computer without his consent then there is the existence of actus reus in cyberspace which the law wants to control.
Cybercrimes have set during a debate on whether new legislation is required to affect this new sort of criminality. There is a school of thought that believes that cybercrimes are not in any way dissimilar to ordinary crimes like trespass, larceny, or conspiracy with the difference that a computer has been used as a medium or instrument for the commission of a crime. The order school gives much credence to the unique nature of the emerging technologies and unique set of challenges, unknown to the existing criminal jurisprudence; such as nature and scope of cybercrimes, intent, and difficulty in locating the offender, jurisdiction, and enforcement. It contends that new comprehensive legislation is needed to deal with cybercrimes. To control the cybercrimes two strategies can be adopted. Firstly, computer crime must be approached both as traditional crime and modern crimes committed through using high-tech computers, and secondly, computer crime must be approached as a crime that is unique by nature for which a new legal framework is required.