With certain conduct, the same action may be criminal or not, depending on the intent of the person who performed it. This is basic criminal law, and in the first year of law school, students historically have learned a Latin term for criminal intent: mens rea.
The Jerry Sandusky juvenile sex abuse case is a recent reminder of this basic principle. Some of the charges were for clearly prohibited acts, such as oral or anal sex with a minor. Other charges, however, were for conduct involving overt but somewhat ambiguous acts, such as touching in the shower.
Before the jury began its deliberations, the judge gave clear instructions about what constituted a criminal mental state.
“It is not necessarily a crime for a man to take a shower with a boy, wash a boy’s hair, lather his shoulders, or engage in back rubbing or back cracking,” the judge said. “What makes this kind of ambiguous contact a crime is the intent with which it is done. You must determine it is an act of lust.”
And that, indeed, is what the jury found. On virtually all of the charges involving “ambiguous conduct,” the jury found Sandusky guilty of actions motivated by lust.