§ 10.04 Frequently Used Mens Rea Terms

§ 10.04 Frequently Used Mens Rea Terms27

[A] "Intentionally"

[1] Definition

Many common law and statutory offenses are defined in terms of "intent," that is, the prosecution must prove that the defendant intentionally committed the social harm that constitutes the actus reus of the offense. At common law, a person "intentionally" causes the social harm of an offense if: (1) it is his desire to cause the social harm, i.e., he purposely causes the harm; or (2) he acts with knowledge that the social harm is virtually certain to occur as a result of his conduct.28

For example,29 suppose that bomb expert D wants to kill V, his wife, in order to obtain the proceeds from her life insurance policy. D constructs a bomb and places it on an airplane on which V is a passenger. He sets the bomb to explode while the plane is in air. Although D does not want anyone on the plane other than V to die—indeed, he prays that the others will survive—he knows that the bomb will destroy the airplane. The bomb goes off as planned, killing V and the other 100 persons on board.

According to the ordinary common law definition, how many people did D "intentionally" kill? Clearly, D "intentionally" killed V. This follows from the simple fact that D wanted V to die; it was his conscious object—his purpose—to take her life. Under the first prong of the definition of "intent" set out above, it does not matter how likely it was that the result would occur; it is enough that D desired his wife's death.

D's mental state as to the other victims must be analyzed differently. He did not desire their deaths; in fact, he prayed that they would live. Nonetheless, assuming that D was not mentally incapacitated in some manner, a jury could readily determine that he "intended" their deaths as well. According to the second meaning of "intent" set out above, he knew that the social harm of their deaths was virtually certain to occur when his bomb exploded. This second prong may be termed the "known certainties" prong, for it is not satisfied if the outcome was merely highly probable; the actor must realize, in essence, that short of a divine intervention or a secular "miracle," the undesired event will occur "for sure."30

Both versions of "intent" are said to involve subjective fault. An actor's fault is "subjective" if he actually—internally, if you will—possesses a wrongful state of mind: in this case, the conscious desire to cause the social harm, or the actual awareness that the harm will almost certainly result from his conduct.31

The significance of the subjective nature of "intent" is seen by a minor change in the bombing hypothetical. Suppose that D belonged to a religious sect that espoused the belief that members of the faith always have their wishes fulfilled by God. Therefore, as a member of the sect, D genuinely believed that his fervent prayers would save everyone on the airplane except his wife, for whom he did not pray for Divine protection. Based on these revised facts, D (as before) intentionally killed his wife, because he desired her death. However, assuming that a jury believes his testimony about his religious beliefs, D did not "intentionally" kill the other passengers because he was not subjectively aware that their deaths were a near certainty. "Intent" requires such awareness; a prosecutor has not proved "intent" by merely showing that D should have been aware, as a reasonable person, that the passengers would be killed.

[2] "Motive" Distinguished32

Some legal scholars state that motive is irrelevant in the substantive criminal law.33 This statement is only correct if they mean that the "intention" to cause social harm is no less "intentional" simply because the actor's motive was not evil in character. For example, a doctor who kills his terminally ill patient to "put him out of his misery" arguably has a benevolent motive, but the killing is still "intentional."34

A defendant's motive, however, is often relevant in the criminal law. First, some offenses (so-called "specific intent" crimes35) by definition require proof of a specific motive in order to convict the actor. For example, common law larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal (i.e., with the intent to permanently deprive the other of the property). Although this definition includes the term "intent"—English scholars sometimes call it an "ulterior intention"—the italicized language denotes the actor's motive for committing the social harm of the offense. In the absence of this motive—for example, if D, without your consent, intentionally takes and carries away your laptop computer with the intention of returning it in an hour ("I just borrowed it!")—no larceny has occurred. Yes, D has committed the social harm of larceny (he wrongfully took and carried away your personal property) and, yes, he did this intentionally, but he is not guilty of the offense of larceny because he lacked the specific intent—the specified motive—of permanently depriving you of your property.36

Second, motive is relevant to claims of defense. That is, if the defendant's motive for his intentional conduct is legally justifiable (e.g., he intentionally kills an aggressor in order to protect his own life), he will be acquitted. As this example demonstrates, the existence of a justifiable motive does not render the defendant's conduct or the consequences of it any less intentional, but it may affect his ultimate criminal liability.

Third, motive is often highly relevant at the sentencing phase of a criminal proceeding. For example, if it wishes to do so, a state may impose enhanced punishment for an offense if the actor selected his victim on account of an unlawful factor, such as race, religion, disability, or sexual orientation.37 Likewise, in jurisdictions permitting sentencing discretion, a defendant's good motive for wrongful conduct may be considered in mitigation.

[3] "Transferred Intent"38

[a] General Doctrine

Suppose A wrongfully fires a gun at B, intending to kill him, but the bullet instead strikes and kills unintended victim C, a bystander. Is A guilty of intent-to-kill murder of C? Or suppose A attempts to strike B, B ducks, and A's fist strikes C instead. May A be convicted of battery of C (for current purposes, hypothetically defined as "intentional touching or striking of another")?

In both hypotheticals, the answer is "yes." Courts typically reach this outcome by applying the legal fiction of "transferred intent."39 According to this doctrine, which originated in the sixteenth century,40 we attribute liability to a "bad aim" defendant who, intending to kill (or, for example, injure) one person, accidentally (unintentionally) kills (or, for example, injures) another person instead.41 The law "transfers" the actor's state of mind regarding the intended victim to the unintended one. As has been said, "the intent follows the bullet."42

The transferred intent doctrine is justified on grounds of necessity and proportionality. The necessity argument is that the bad aimer should not avoid conviction for intent-to-kill homicide simply because he killed the "wrong person," i.e., someone he did not intend to kill. The proportionality argument is that the doctrine is meant "to ensure that prosecution and punishment accord with culpability."43 That is, one who intends to cause a particular harm to one individual, and instead causes precisely the same harm but to a different person, is "as culpable . . . as if the defendant had accomplished what he had initially intended."44

Unfortunately, as uncontroversial and simple a doctrine as "transferred intent" seems on quick inspection, it is neither. Some scholars have argued against the moral soundness of the transferred intent doctrine,45 which has been characterized as a "name attached to an unexplained mystery."46 This "mystery" is not only a legal fiction—states of mind hardly follow bullets to unintended victims47—but it is a potentially misleading and, therefore, mischievous doctrine.48 Moreover, as suggested immediately below, the doctrine is unnecessary to ensure a proper outcome in ordinary bad-aim cases.

[b] An Unnecessary and Potentially Misleading Doctrine

It is submitted here that the transferred intent doctrine is unnecessary and, if invoked without great care, misleading. Consider the typical "bad aim" case: A intends to kill B, but instead kills C, and is prosecuted for intent-to-kill murder of C. In this case, there is no need to "transfer" A's intention to kill B to unintended victim C; A has the requisite intent without the doctrine. There is no need to think in terms of A's mens rea following a bullet to its eventual victim. One need only look at the ordinary definition of criminal homicide to see this. The social harm of murder is the "killing of a human being by another human being." The requisite intent, therefore, is the intent to kill a, not a specific, human being.49 In the present case, A intended to kill a human being (B), so the mens rea is satisfied; and he did in fact kill a human being (C), so the social harm is proven. Thus, the elements of murder are proved without invoking the legal fiction of transferred intent.50

The correctness of this assertion—and the danger of applying the transferred intent doctrine mindlessly—is demonstrated if one looks at offenses that do require proof of a specific victim. For example, in Ford v. State,51 F threw rocks at a moving vehicle, with the intention of disabling the driver. He was charged according to an assault statute that made it an offense to "assault or beat any person, with intent to maim, disfigure, or disable such person." The trial judge instructed the jury that F's intent could be transferred to an injured passenger, although F rock was meant for the driver. Essentially, the judge believed that the "intent to disable" followed the rock, but it does not. The appellate court correctly ruled that the...

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