Condoning the Crime: The Elusive Mens Rea for Complicity

Introduction Under the federal aiding and abetting statute, "whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 1 There is widespread agreement that to be guilty under this provision, one must not only perform an action in aid of the conduct of the principal wrongdoer, but also perform that action with some mens rea (or mental state) toward the principal's underlying crime. 2 However, there is a long history of disagreement about how, precisely, this mens rea should be understood. 3 As one commentator recently observed, "the law on the aider and abettor's mental state is ... best described today as in a state of chaos." 4 Some courts have held that what is required for complicity is that aid be rendered with the intention or purpose for the underlying crime to succeed. 5 Others have held that it is enough to aid the principal's conduct while merely having knowledge that the crime will be committed. 6 Yet others have taken an altogether different view, proposing that the mens rea required for complicity tracks the mens rea of the underlying crime - the so-called "derivative approach." 7 However, as argued below, these familiar approaches face difficulties. 8 It will become clear that one of the major challenges for the existing approaches is that they allow a defendant to be convicted as an accomplice, and therefore punished "as a principal," 9 even ...