Mens Rea,
E-Mails, Hate Crimes and Parallels in Academic Medicine

By

Leonard Zwelling

         I don’t believe in hate crimes. I believe that the criminal
justice system ought to be built on actions not intent. You are tried and
convicted for what the state can prove you did, not what they can prove was on
your mind. That’s my world. It’s not the real world.

         In the real world, intent matters and its name in legal
terms is mens rea. It means ‘guilty
mind’ and it is an essential part of determining whether or not a punishable
offense has been committed. Did the individual know what he or she was doing
was wrong?

         FBI Director James Comey made it quite clear before the US
House Committee on Oversight and Government Reform on July 7 that the FBI
concluded that Mrs. Clinton did not knowingly or purposefully break the law
with her use of a private email server and as such the FBI could not recommend
that she be indicted for any criminal activity.

         The former First Lady, US Senator, and Secretary of State
escaped—barely. What she did was wrong but why she did it was not a purposeful
evasion of the law.

         I happen to disagree with this conclusion. I think she most
definitely avoided the use of the proper communications channels at the State
Department. Any sentient being who is Secretary of State knows that
confidential and top secret communiqués will be coming to them and out from
them. That’s enough for me. It was not enough for Mr. Comey and he is in a far
better position to judge than I am. I defer, reluctantly, to him, and am willing
to move on knowing that the person I may well vote for has miserable judgment,
but at least is not a racist, misogynist, anti-Muslim, anti-Mexican,
anti-Semitic, ranting lunatic who is so self-centered, he can’t possibly
understand that what he is doing wrong. She can and she ought to, but she
continues to demonstrate that she too is self-absorbed and will do exactly what
she can get away with and will press the limits of that as often as she is
allowed to do so. Gee, I wonder why the country is so Verklept? (see Kimberley
Strassel in WSJ of July 8: http://www.wsj.com/articles/comey-ran-true-to-form-1467932483)

         In that way, the Republican members of the committee who
claim there is a double standard are correct. There is. Mr. Comey notes that
should any low level State Department employee have done what the former Secretary
had done, he or she would be subject to stiff penalties including dismissal.
But not criminal prosecution.

         I suggest we respect the straightest of straight arrows and
give the FBI Director the benefit of the doubt. He has earned that in his
distinguished career.

         So what about the behavior of the President of MD Anderson?

         The self-dealing on CNBC? Perhaps he was not aware that
pushing the stock of your own company on national TV is a bad idea. He gets a
pass.

         The nepotism? Perhaps he negotiated with the powers in
Austin to allow his wife to have a prominent position while he served as MD
Anderson President. He gets another pass.

         The conflict of interest? Here too he negotiated with Dr.
Shine his ability to hold stock in companies making anti-cancer drugs that
might be tested at MD Anderson while he was the President. Hey, he’s no worse
than the last guy on that one. D minus.

         The foul behavior, blocking of tenure renewal, and random
firings by the President? Mens rea?
Who knows? Mean SOB? For sure. But being mean is not illegal, although it does
take a helluva toll on your corporate culture.

         It seems to me that if you need proof about what was in the
mind of a bad deed perpetrator to convict him or her, the bar has been set
pretty high.

         I really don’t care why you did a bad thing including that
the dog ate your homework. You did it. You’re guilty.

         I guess the law disagrees. I should have thought of that
when I did something my father was not pleased with. Usually he asked, “What
were you thinking?”

         The usual answer was, “I wasn’t thinking at all.”

         Then I got punished anyway.

Leonard Zwelling