How is criminal intent established in trial?

Question

In modern criminal law, a crime is broken down int the actus reus, which is the objective act the crime consists of, and mens rea, which is the criminal intention with regard to committing the actus reus. A simple example: if John goes into someone else's house, takes money from the wallet, and leaves, then these actions are the actus reus of theft, while John's intention to steal the money is the mens rea.

At least with regard to the hudud, the sources I can find say the actus reus has to be proved beyond reasonable doubt for a punishment to be handed down by a qadi. This is based on a hadith that says "Ward off the hudud by means of ambiguities.", apparently found in the Musannaf of Ibn Abi Shayba (specific reference I can find without being able to verify it: Ibn Abi Shayba, Musannaf, XI, 70.), the Musnad of al-Harithi, and the Musnad of Musaddad ibn Musarhad.

From what i can find, the mens rea in sharia consists of

• having the power to commit or not commit the actus reus (qudra)
• knowing that the act was an offense ('ilm)
• intending to commit the actus reus (qasd)

The problem that poses itself is that we can't look into someone's head to see what someone knew or intended. 'Ilm is probably a lesser problem in hadd; very few people will be unaware that the hadd offenses are offenses, and there probably is a presumption that anyone must know these.

Qasd seems more difficult to me. If John says "I thought it was my own house and my own money", does it have to be proven he didn't, or does he have to prove that he did?

Question: How is qasd proved, who has to prove what in a criminal case if the accused claims he didn't intend the crime?

Answer 1

In Islamic criminal law, qasd (intention) is the rough equivalent of mens rea, relating to proving criminal intent. Proving qasd involves discerning the state of mind of the accused at the time of the alleged crime.

In Islamic law, as in most legal systems, the burden of proof is on the accuser or claimant (i.e. the prosecution), and presumption of guilt ('suspicion') is forbidden as per well-documented ahadith (Bukhari Vol. 8, Book 73, Hadith 90, Muslim Book 32, Hadith 6214, Riyad us-Saliheen 1573).

In your example, the defence of someone thinking it was their own house and their own money could be rebutted by examining the circumstances and evidences. A combination of facts and circumstances, such as the defendant being of sound mind, the presence of other people's things, different architectural features, etc. could be used to conclude that the defendant had no reasonable basis to believe that they actually took their own money from their own place. Who knows, someone might have witnessed the defendant act suspiciously, implying that they knew they were committing an unlawful act. Thus, while it is true that one can't look inside someone's head to read what they knew or intended, there is no dearth of ways to discern it indirectly.