Mens rea and actus reus, and how to stop reading minds

One of the first concepts students learn in criminal law is about actus reus and mens rea. Actus reus is the physical action of the crime. For example, in a murder, the actus reus is the act of killing another person. Mens rea is the mental state of the accused. For example, murder requires the mens rea of prior intent to kill, whereas manslaughter requires no such mens rea. Two people could act with the same actus reus but be found guilty of two different crimes because they have different mens rea.
 
It’s really hard to prove that someone has the necessary mens rea for a crime. It’s really hard to know what someone else is thinking. You could get them to confess to their intent after the act. You could get a diary entry, or other statement from before the act. But it’s hard. This is why it’s tricky to prove murder beyond a reasonable doubt, because it’s hard to know what someone is thinking.
 
But the concepts of actus reus and mens rea doesn’t just apply in criminal law. They apply in ordinary life. It’s really hard for me to know someone else’s intent. I’m not a mind reader. I can’t know what the other person is thinking. I can guess, but it’s just a guess. The only way to know what someone is thinking is to ask them, and even then, they might not be telling the truth.
 
So when I relate to people, I ask myself two questions: (1) what is the actus reus I observe? (2) what are the possible mens rea that they may have? If someone ignores me, I can observe (1) they are ignoring me, and (2) it’s possible they don’t like me. But maybe they didn’t see me. Maybe they’re having a bad day. Maybe they just need some alone time. I then focus on the actus reus and how I will choose to respond, rather than the mens rea (which I really have no way of knowing).
 
This is why I don’t like it when people start ascribing intent to others. “You said X, but the real reason is because Y. The real reason you’re doing this is because you’re a racist. The real reason you said that is because you’re a bigot. The real reason you act this way is because you hate Christians.” It seems like folks are saying, “You claim X, but I know you. I know the secret things that you believe. What is really going on is Y.” Folks are claiming that they know the other person’s mens rea. Folks are claiming to be mind readers.
 
One phrase I learned from my counseling class is “What I’m making up about this is…” I can’t read another person’s mind, so when I claim to know another person’s intent, it’s really my own imagination. “What I’m making up about this is that you’re doing this because you’re a racist. What I’m making up about this is that you said that because you’re a bigot. What I’m making up about this is that you act this way because you hate Christians.” Maybe my imagination is correct. But I really have no way of knowing until you tell me what you’re thinking.
 
I find that it’s not productive to try to guess another person’s mens rea. I will ask them what they are thinking. If I can’t, I will focus on the actus reus and how I will choose to respond to it. “I don’t know if you intended to hurt me or not. What I observed was that you ignored me, and I felt hurt by that.”
 
So maybe it would be like this: “I am offended by your action because it bolsters the view that one race is superior to another. I am concerned by your comment because it has the effect of strengthening hateful speech. I am grieved because your activity communicates to me an animosity toward Christians.”
 
In short, I try to focus on responding to the actus reus that I can observe, and try not to worry about the mens rea that I cannot. I try to not read minds, because I’m not very good at that.

Is college like homeschooling?

A couple weeks ago, I reflected on the nature of safe spaces on university campuses, and my own safe space at the Christian Legal Society in my law school. I want to follow up with this idea about one facet of this discussion on free speech and safe spaces:
 
For most students, going off to college is their first time being homeschooled.
 
Most students who attended traditional schools had a separation between school and home life. In the morning, they would travel to a place where they would be exposed to differing and challenging perspectives. But in the evening, they would go home to a place of rest and respite. Of course, this isn’t true for all students in traditional schools. For too many students, home was not a place of sanctuary, but a place of danger. And the omnipresence of social media allows cyberbullying to creep into home life. But on the whole, students in traditional schools had a separation between school life and home life. In this way, their lives mirrored most working adults, for whom work was separated from home.
 
On the other hand, homeschooled students don’t have this separation. The same person that provides them with education also provides them with nurturing and discipline. While students can switch from “school mode” to “home mode”, it’s different than for students at traditional schools.
 
When college students arrive at a residential campus, they are faced with multiple messages. College is supposed to be a place to learn about interesting, challenging, and even painful ideas. But college is also supposed to be a place to grow as a person, to understand yourself, and to make lifelong friends. While these two impulses aren’t mutually exclusive, they can conflict. “University as Educator of Mind” doesn’t always align with “University as Nurturer of Self”.
 
It’s also true that some students feel more unfamiliar with their college spaces than others. For some students, it is harder to feel at home in college, because college is so different from home.
 
Students who ask for safe spaces can be criticized as trying to insulate themselves from the outside world. When they graduate, they will enter a work world that doesn’t have safe spaces. True enough, and I definitely disagree with the impulse to erect a bubble shield around the entire campus. But most working adults leave their jobs at the end of the shift and head home. Most people don’t live at work all day. Do college students have a similar place where they can rest?
 
Of course, all of this is armchair theorizing. I am not an educator or a psychologist, and I don’t have any empirical data. But I would be interested to know two things: (1) Do debates about free speech and safe spaces occur at the same level at a residential campus versus a commuter campus (at which students can leave school for home)? (2) Do homeschooled students have an easier time with the shift to a residential campus, given that they are accustomed to shifting between “school life” and “home life” in the same space? The latter question may be impossible to ask, since so many confounding factors exist, but worth pondering.
 
Oh, and some might find it weird to equate college with homeschooling. But you could substitute “boarding school” and the analogy still works.

Dim sum

Growing up, my family mostly ate Korean food. I grew up on kimchi jjigae (kimchi stew), naengmyeon (cold buckwheat noodle soup), and bibimbap (rice mixed with different vegetables and meat). We didn’t eat a whole lot of meat, but we would have galbi or bulgogi on special occasions.
 
Korean food is familiar, comforting, and delicious. But because it is so familiar, it didn’t feel like a special occasion to eat Korean food. What did feel like a special occasion was dim sum. Every so often, we would go to the A&W Chinese Seafood Restaurant for dim sum. I loved ordering from the steam carts rolling around the restaurant.
 
When I came to Berkeley, I made more Chinese-American friends. On special occasions, we would go to Oakland Chinatown and get dim sum. I loved chatting out with my friends, sipping tea and ordering baskets of ha gow (shrimp dumplings), shumai, and sticky rice, and finishing with dan tat (egg tart).
 
When I passed the bar exam last November, I had a celebratory lunch with a few friends. Where did we go? A dim sum restaurant in Alameda.
 
Korean food will always be important to me. But dim sum will always mean celebration.