A crime is committed. Society perceives that something is wrong, somebody has done wrong, some reaction must occur. What should we do? How do we confront crime, including not just those crimes that have already occurred, but also the fear and expectation of future crimes?
At the end of the day, the problem we confront here must be one of action, not intention. The intentions of other people are always in some sense inscrutable, impossible to know in some particulars–even when we have the kind of intimate insight provided by good novelists or historians (who are more similar than different, generically speaking).
The mens rea is secondary, something we look for after a crime has already been committed. We don’t look for it primarily, before a crime has been committed, because crime occurs for many reasons, in situations that involve many mental states (too many to know, let alone understand, even when the action is over, let alone before it happens).
The worst kind of police-work involves flipping the process around, looking for guilty thoughts (mens rea) before guilty actions (crimes). Because anyone, nay everyone, is always having thoughts that are problematic (at least potentially). The parent’s love for a child, the child’s love for a sibling, the human’s love for affection, etc., all become criminal at some point (i.e. mens rea). My thoughts–my loves, hatreds, passions–are not magically good because as yet they are associated with no crimes (that I am aware of, that society has noticed). The same is true of yours, and of all people. We have different thoughts, of course, different iterations of the dangerous process that manifests somewhere as mens rea–which we will have differently. Your mens rea will not be mine, but that does not make either of us categorically less guilty than the other.
The only viable filter for separating acceptable human psychology from mens rea is action. What did you do? I don’t punish people for thinking, even when they think bad thoughts (in my judgment), until I find them acting badly (and then I try to make my reaction match the level of evil in their action: a sin is not necessarily a crime, and not all crimes or sins are created equal; sometimes a slap on the wrist is appropriate, other times you need something stronger). Having ambivalent thoughts about sex, or religion, or any such thing is not the same as beating, killing, or otherwise criminally damaging other people. Some of the best people I know have ambivalent thoughts about the human condition; they turn those thoughts into good actions (avoiding harm, helping where possible, cultivating compassion that does not overwhelm its object with unwanted attention). Others use the same kind of thoughts to become criminals. When the Dalai Lama suggests that sexual or political or even human identity is unreal or in some sense unimportant, is he committing a crime, stirring the fire of human passion in an attempt to cause mayhem? Not in my book. I am still Christian enough to believe the dictum “by their fruits ye shall know them”–and I identify those fruits with actions, particular actions of motivated individuals, not nebulous social trends (“cultures” like Christianity or Buddhism or Islam) that lack coherent moral agency (everything under the sun is historically Christian or Buddhist or Muslim, including murder and mayhem, naturally, as these are permanent parts of the human condition).
Am I a horrible person for this stance I take, that action must matter primarily in judging and responding to crime? I don’t think so, obviously, but that does not mean that I am right (particularly right, unable to go wrong as I make individual judgments about how to behave in specific circumstances). My reason for refraining from criminalizing thoughts is fundamentally about compassion: I want to believe that you have the best motivations for whatever choices you make, and I will not interfere with those choices or judge them (in a particular sense) harshly, until you make that necessary by some action (e.g. walking into my neighborhood with drawn weapons). Even then, my most severe judgment is of your behavior, not your thoughts. I don’t condemn Christian culture, Buddhist culture, Muslim culture, etc. I don’t condemn Christian rape, Buddhist rape, Muslim rape, etc. I condemn rape, and I fight against rapists (individuals with agency that they use to become rapists). The broader social trends that criminals draw from to inform and color their criminality, the broader social trends that we draw from to explain it–these to me are always secondary (and doubtful). When I sit on a jury to determine guilt, I don’t want to judge the culture of the criminal. I want to know what s/he did, and only then to consider how the particular culture or circumstances might mitigate (or not) whatever reaction I make.