Mens Rea and Inchoate Crimes

and a concrete level. On the abstract level, the purpose is do C [the actus reus], unless X [a criminalizing condition] obtains. On the concrete level, given D 1's belief that X does not obtain, his purpose is merely do C. Therefore, D, has both an abstract internally conditional purpose and a concrete internally unconditional purpose. And we see no evidence in the case law or in the Model Penal Code that the courts are or should be interested in D1's abstract purpose rather than his concrete purpose. In any event, whether we are right or wrong in our reply to this objection-and we would be delighted were the objection well taken and the state of the law more in accord with what we recommendthere is no reason to treat the defendant with an abstract internally conditional purpose differently from the defendant whose criminal purpose is internally unconditional but externally conditional. In other words, there is no reason why D1 should fare better if he actually thinks to himself, I would not assault V were he a federal officer, which he is not, or I would not have sex with Lolita if she were under eighteen, which she is not, than if he does not subjectively entertain the possibility of his contemplated conduct's criminality but would desist were he made aware of that fact. And there is absolutely no indication that the cases and commentators who endorse the Feola symmetry approach to the mens rea of inchoate crimes would be at all hesitant to convict the latter defendant. (None of the cases or commentators even hint at the relevance of a counterfactual inquiry regarding external conditions, except, of course, for proponents of asymmetry like Enker and Fletcher). B. THE ELEMENT IN QUESTION IS A CIRCUMSTANCE AND REQUIRES A MENS REA OF NEGLIGENCE FOR THE COMPLETED CRIME Let us take the three crimes in the previous section-assaulting a federal officer, statutory rape, and driving a car with an expired registration-and assume now that the crimes require that defendant be negligent with respect to whether the victim is a federal officer, the girl is under eighteen, and the registration has expired. (Again, we 1997] 1163