The guilty verdict against Thomas Lembong, former head of Indonesia’s Investment Coordinating Board (BKPM), in a corruption case involving sugar importation has stirred public debate. Many have questioned: did he truly possess mens rea—the guilty mind—or was he merely executing an administrative policy? This controversy reignites a fundamental issue in criminal law: can one be held criminally liable solely for an unlawful act, even in the absence of criminal intent?
In criminal jurisprudence, mens rea—the mental element of intent or knowledge of wrongdoing—is a cornerstone for determining criminal liability. Yet, the question remains: is it legally possible to impose punishment where mens rea is absent?
This article aims to clarify the concept of mens rea, its types, its correlation with the physical element of crime (actus reus), and the exceptions under Indonesian law that allow for criminal liability without proving malicious intent.
- What Is Mens Rea?
According to Indonesian criminal law scholar Sudarto, mens rea refers to the psychological state of the perpetrator which forms the basis of whether a person can be held criminally liable. It reflects the perpetrator’s state of mind, intention, or awareness at the time the unlawful act was committed.This is grounded in the legal maxim:“Actus non facit reum nisi mens sit rea”
(“An act does not make a person guilty unless the mind is also guilty”)In other words, it is insufficient to show that a defendant committed a prohibited act; there must also be proof of a culpable mental state.
- Categories of Mens Rea
Under Indonesian criminal law, mens rea is broadly classified into two primary forms:
- Intent (Dolus):
This applies where the perpetrator knowingly commits an unlawful act.
Example: Deliberately stabbing another person with a knife. - Negligence (Culpa):
This occurs when there is no deliberate intention to break the law, yet the perpetrator acts carelessly or recklessly, resulting in a criminal consequence.
Example: A reckless driver causing a fatal traffic accident.
According to Prof. Mahfud MD, four standards can be used to evaluate mens rea:
- Possessing a specific intent,
- Knowing the act is wrong or harmful,
- Acting recklessly,
- Acting negligently.
- Intent (Dolus):
- The Relationship Between Mens Rea and Actus ReusIn criminal law, mens rea is inseparable from actus reus—the physical or external element of the crime. For criminal liability to arise, both components must generally co-exist.Illustration:
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- Actus reus: Physically striking another person.
- Mens rea: Intentionally seeking to cause harm or revenge.
If a person strikes another accidentally (e.g., by tripping), then despite the actus reus, the absence of mens reatypically negates criminal liability.
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- Can Someone Be Convicted Without Mens Rea?As a general principle, convicting someone in the absence of mens rea contradicts the presumption of fairness in criminal justice. However, several exceptions exist under Indonesian law:
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- Negligent Offenses (Delicta Culpa):
A person may still be convicted in the absence of intent if proven to be negligent. For example, in fatal road traffic accidents caused by recklessness. - Strict Liability Offenses:
For certain statutory crimes—especially administrative, environmental, or public welfare offenses—liability may be imposed without proving mens rea. - Justifiable Defense (Article 49 of the Indonesian Penal Code):
A person who commits an unlawful act under imminent threat while defending oneself or another is exempt from criminal liability due to the absence of mens rea.
Article 49 of the Indonesian Penal Code (KUHP):“A person shall not be punished if they commit an act of necessary defense for themselves or for another person, provided that the act was carried out due to an unlawful attack or imminent threat of such an attack at that moment, and the defense was carried out in a reasonable manner proportionate to the threat faced.”
- Negligent Offenses (Delicta Culpa):
- Conclusion
Mens rea is a crucial element in determining a person’s criminal liability. Generally, without criminal intent or negligence, a person cannot be subjected to punishment. However, there are exceptions, such as in cases of culpa (negligence) and strict liability, where punishment is still possible even if criminal intent is not proven.
Legal References:
- Hukum Pidana I (Criminal Law I), Revised Edition. Semarang: Yayasan Hukum Sudarto FH Undip, 2009.
- Article 49, Indonesian Penal Code (Kitab Undang-Undang Hukum Pidana – KUHP).
- Ar, A. M., et al. (2024). “The Role of Mens Rea in Criminal Liability in Indonesia.” Jimmi: Jurnal Ilmiah.
- Mahfud MD. (Public Lectures and Legal Commentaries).
Authors:
Muhammad Arief Ramadhan, S.H., Petrus Gabe Pandapotan & Dina Normanza Sibagariang
Editor:
Muhammad Arief Ramadhan, S.H.