BETWEEN CODE AND CULPABILITY: DECIPHERING THE POSSIBILITY OF AI MENS REA FOR CRIMINAL LIABILITY THROUGH JURISTIC PERSONHOOD FOR AI

Abstract

ABSTRACT

The rapid evolution of Artificial Intelligence (hereafter AI) challenges traditional legal frameworks, including existing criminal law frameworks of attributing liability. While actus reus in AI-driven offences can be identified, determining mens rea remains complex due to AI’s autonomous decision-making and the Black Box Problem. Against this backdrop, this paper examines whether AI can be granted juristic personhood, thereby attributing mens rea directly to it, and explores the feasibility of a strict liability regime to bypass the mens rea requirement in AI-driven offences. Drawing from existing jurisprudence, the study argues that recognising AI as a juristic person is not legally untenable, and thus, it is possible to attribute mens rea to AI if the constitutive elements of its different forms are present, a possibility that cannot be ignored vis-à-vis the hypothetical “Strong AI”, thus also allowing criminal liability to be directly applied to AI entities themselves.

Keywords: Strong AI, mens rea, actus reus, criminal liability, black box problem,