Preterintention

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Preterintention in criminal law is a degree of culpability in which a defendant intended to commit a crime but also unintentionally committed a more serious crime. It derives from the legal Latin phrase praeter intentionem, which means "beyond intention". [1] Preterintentional crimes or offenses may also be referred to as result-conditioned or consequentially aggravated. A common form of preterintentional crime is bodily harm resulting in death, in which the defendant intended to harm the victim but did not intend to kill.

Contents

Preterintentional crime as a distinct legal concept is found chiefly in penal systems of the civil law tradition. It arises from the Roman legal principle under which a criminal intent created strict criminal liability for all resulting harm, [2] which is often known by the maxim versari in re illicita. In modern times many legal systems have ceased to impose separate criminal liability for preterintentional crimes. Other legal systems have limited a defendant's criminal liability to situations where the defendant negligently or recklessly caused the preterintentional harm.

Penal systems of the common law tradition generally do not use the concept of preterintentionality, but some common law systems impose criminal penalties for unintended harms under doctrines such as felony murder.

History

Strict criminal liability [3] for preterintentional crimes can be traced back to the doctrine of "versari in re illicita", [4] and found application both in the criminal law of ancient Rome, [5] [6] and in the canon law of the Roman Church. [7] [8]

In Roman law, [9] [10] the perpetrator of a criminal act who unintentionally committed a more serious but causally connected crime [11] was still punished for the unintended crime, without it being necessary to establish willfull intent to commit the more serious offense. [12] The person was held strictly criminally liable for the preterintentional crime; thus, it was sufficient to ascertain that the preterintentional crime had been caused by an intentional act. [13]

Elements

A preterintentional crime requires an intentional criminal act or omission, and an unintended and more serious outcome. Under some legal systems, a defendant is not criminally liable for the unintended outcome unless the defendant acted with negligent or reckless disregard for that outcome.

Intentional conduct

A preterintentional crime requires an intentional act or omission in violation of criminal law. [14] However, this intentional criminal conduct does not have to be successful: a mere intentional attempt at a crime can be sufficient. The judge can condemn the agent for the preterintentional crime caused by the intentional criminal conduct, even if only attempted. For example: Tizio with a threatening attitude makes a sudden movement of his arms with a closed hand towards Caio, and the latter with a reflex movement avoids the blow but stumbles and, falling to the ground, hits his head and dies; the intended crime of assault against Caio is only attempted and not completed, but Tizio is still responsible for the preterintentional homicide of Caio. [15] A criminal attempt, in addition to being sufficient, [16] is also indispensable for the agent to be convicted of a preterintentional crime. [17]

Conversely, an attempted preterintentional crime is logically impossible: [18] if the preterintentional event does not occur, there is no preterintentional crime, and the perpetrator is responsible only for the intended lesser offense, because that is the only crime they committed. [19]

Because a subject cannot be punished twice for the same act, [20] the penalty may be determined taking into account both the crime intended and the preterintentional crime committed. [21]

State of mind

Some countries, such as Austria, in order to adapt preterintention to the principle of subjective responsibility, no one can be punished criminally unless as a result of voluntary or at least reckless, negligent or unskilled responsibility, [22] consider preterintention as a form of mixed mental state. The intent supports the conduct of the lesser crime, and fault supports the preterintentional consequence. [23]

In the United States, faithful to the ontological nature of preterintention, [24] it is considered a form of intentional crime, [25] aggravated by the unintentional event which is attributed to the author even if theydid not want the event, thus introducing a form of objective responsibility. [26] [27]

By type

Preterintentional killing

The main example of this form of liability is preterintentional killing, [28] which occurs when a person, with actions aimed at hitting or harming, unintentionally causes the death of a person: [29] the agent will be liable for objective responsibility, or fault, for the laws that require it, for the death event. [30] For example: Tizio argues with Caio and intentionally punches him, Caio falls to the ground and dies: Tizio only wanted to punch him and absolutely did not want to kill him. [31]

In praeterintentional homicide the term "killing" is used and not that of "murder", as in intentional homicide, in order to underline the agent's unwillingness to kill. [32]

Preterintentional homicide can mature under certain factual circumstances, and therefore the penalty will be aggravated according to the type of circumstance ascertained by the judge: for example, the Italian [33] legislator regulates the aggravating circumstances of preterintentional killing in art. 585 penal code, [34] and the French [35] one in art. 222-8 penal code. [36]

Preterintentional abortion

Another hypothesis expressly provided for by the law is preterintentional abortion, [37] which occurs when the agent, with actions aimed at causing injury, causes, as an unintended effect, the interruption of pregnancy. [38] For exmample, Tizio argues with Mevia and intentionally punches her, causing Mevia to fall to the ground and miscarry. Tizio only wanted to punch Mevia but did not want to cause the miscarriage of the child in her womb.

Crimes aggravated by the event

Then there are the preterintentional crimes in the broad sense: [39] intentional crimes aggravated by an unwanted harmful or dangerous event, [40] which reproduce the typical preterintentional criminal progression: [41] intentional unlawful conduct that produces a more serious involuntary crime. [42] For example: Tizio intentionally slaps his daughter Filena, and Filena suffers serious injuries so much so that she goes to the hospital; in the following days Filena dies from complications from infections on the injuries sustained. [43]

By penal system

The concept of preterintentional crime is found primarily in legal systems of the civil law tradition. [44] Preterintentional crimes are or have formerly been recognized by many countries, [45] including the following:

Other legal systems that recognize preterintentional crimes include those of Georgia, where preterintentional crimes require at least negligence, [54] Colombia, [55] and Venezuela. [56]

Many civil law legal systems have rejected preterintentional offenses and the underlying doctrine of versari in re illicita, as reflecting a strict liability approach incompatible with modern constitutional guarantees. [57] In some countries including Spain, [58] Sweden, [59] and Switzerland, preterintentional crimes have been split into their intentional and unintentional parts, and therefore defendants are charged with a voluntary crime for the intentional act, e.g. grave bodily harm, and an involuntary crime for the resulting unintended harm, e.g. negligent homicide. [60] Some legal scholars have argued that cases in which someone commits a preterintentional offence must be regulated, as a legal vacuum is unacceptable. [61] [62]

Other countries in which preterintentional crimes were formerly recognized but have been abolished or greatly limited include South Africa [63] and Botswana, [64] both of which rejected the traditional versari principle in the 1960s as embodying a form of strict liability not compatible with modern approaches to criminal law. In South African criminal law, the state of mind necessary for a defendant to be criminally responsible for an unintended consequence of a criminal act is dolus eventualis , which requires both foreseeing the potential for harm and acting in reckless disregard of the consequences. [65] The courts of Zimbabwe and Namibia have similarly adopted a requirement that a defendant foresee the reasonable possibility of the preterintentional harm occurring. [66]

Countries of the common law tradition have typically followed a comparatively flexible approach to preterintentional crimes. [67] In United States criminal law, depending on the state, preterintentional offenses may include felony murder and voluntary manslaughter. [68] [69] In English criminal law, preterintentional crimes are generally punished where there is sufficient similarity between the intended crime and the result. This approach is justified based on the doctrines of "unforeseen mode", "mistaken object", and "transferred fault". [70]

Related Research Articles

In the terminology of law, an assault is the act of causing physical harm or unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may result in criminal prosecution, civil liability, or both. Additionally, assault is a criminal act in which a person intentionally causes fear of physical harm or offensive contact to another person. Assault can be committed with or without a weapon and can range from physical violence to threats of violence. Assault is frequently referred to as an attempt to commit battery, which is the deliberate use of physical force against another person. The deliberate inflicting of fear, apprehension, or terror is another definition of assault that can be found in several legal systems. Depending on the severity of the offense, assault may result in a fine, imprisonment, or even death.

<span class="mw-page-title-main">Murder</span> Unlawful killing of a human with malice aforethought

Murder is the unlawful killing of another human without justification or valid excuse committed with the necessary intention as defined by the law in a specific jurisdiction. This state of mind may, depending upon the jurisdiction, distinguish murder from other forms of unlawful homicide, such as manslaughter. Manslaughter is killing committed in the absence of malice, such as in the case of voluntary manslaughter brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.

Negligence is a failure to exercise appropriate care expected to be exercised in similar circumstances.

In criminal law, mens rea is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of mens rea and actus reus before the defendant can be found guilty.

Delict is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.

In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily has normative force, for in nonlegal English, a person is culpable only if he is justly to blame for his conduct". The guilt principle requires that in order to convict a person it is necessary to ascertain his voluntary or reckless behaviour, Strict Liability being prohibited.

In criminal law, strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offense. The liability is said to be strict because defendants could be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e. there is not even criminal negligence, the least blameworthy level of mens rea.

Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.

In most common law jurisdictions, an element of a crime is one of a set of facts that must all be proven to convict a defendant of a crime. Before a court finds a defendant guilty of a criminal offense, the prosecution must present evidence that, even when opposed by any evidence the defense may choose, is credible and sufficient to prove beyond a reasonable doubt that the defendant committed each element of the particular crime charged. The component parts that make up any particular crime vary now depending on the crime.

Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws.

In the French penal code, murder is defined by the intentional killing of another person. Murder is punishable by a maximum of 30 years of criminal imprisonment . Assassination and murder in some special cases in accordance with Article 221-4 ) are punished by a jail term up to life imprisonment. The same punishment is given to murder committed in connection to other criminal offenses according to Article 221-2.

In Italy the penal code regulates intentional homicide, "praeterintention" homicide corresponding to the Anglo-Saxon Felony-Murder, and manslaughter. <<Thus - to summarize - we see that murder includes murder committed with the intention of producing [...] serious injury, or with the intention of producing that which either can easily produce the other and, therefore, also includes cases in which death is preceded by criminal intent and which is the consequence of an illegal act, which by its nature constitutes a crime. Involuntary manslaughter, however, includes homicide caused by omission, involuntary manslaughter, accidental homicide resulting from an unlawful act which is not a crime, and the like>>.

Under Dutch law, moord (murder) is the intentional and premeditated killing of another person. Murder is punishable by a maximum sentence of life imprisonment, which is the longest prison sentence the law will allow for, unless the sentence is commuted or pardoned by the Sovereign of the Netherlands. However, this happens and few appeals to the King for clemency have ever been successful.

In the United States, the law for murder varies by jurisdiction. In many US jurisdictions there is a hierarchy of acts, known collectively as homicide, of which first-degree murder and felony murder are the most serious, followed by second-degree murder and, in a few states, third-degree murder, which in other states is divided into voluntary manslaughter, and involuntary manslaughter such as reckless homicide and negligent homicide, which are the least serious, and ending finally in justifiable homicide, which is not a crime. However, because there are at least 52 relevant jurisdictions, each with its own criminal code, this is a considerable simplification.

<span class="mw-page-title-main">Criminal law of the United States</span>

The criminal law of the United States is a manifold system of laws and practices that connects crimes and consequences. In comparison, civil law addresses non-criminal disputes. The system varies considerably by jurisdiction, but conforms to the US Constitution. Generally there are two systems of criminal law to which a person maybe subject; the most frequent is state criminal law, and the other is federal law.

Manslaughter is a crime in the United States. Definitions can vary among jurisdictions, but manslaughter is invariably the act of causing the death of another person in a manner less culpable than murder. Three types of unlawful killings constitute manslaughter. First, there is voluntary manslaughter which is an intentional homicide committed in "sudden heat of passion" as the result of adequate provocation. Second, there is the form of involuntary manslaughter which is an unintentional homicide that was committed in a criminally negligent manner. Finally, there is the form of involuntary manslaughter which is an unintentional homicide that occurred during the commission or attempted commission of an unlawful act which does not amount to a felony.

<i>Tribunal correctionnel</i> French court of first instance for criminal matters

In France, the correctional court is the court of first instance that has jurisdiction in criminal matters regarding offenses classified as délits  committed by an adult. In 2013, French correctional courts rendered 576,859 judgments and pronounced 501,171 verdicts.

<span class="mw-page-title-main">French criminal law</span>

French criminal law is "the set of legal rules that govern the State's response to offenses and offenders". It is one of the branches of the juridical system of the French Republic. The field of criminal law is defined as a sector of French law, and is a combination of public and private law, insofar as it punishes private behavior on behalf of society as a whole. Its function is to define, categorize, prevent, and punish criminal offenses committed by a person, whether a natural person or a legal person. In this sense it is of a punitive nature, as opposed to civil law in France, which settles disputes between individuals, or administrative law which deals with issues between individuals and government.

This glossary of French criminal law is a list of explanations or translations of contemporary and historical concepts of criminal law in France.

The French code of criminal procedure is the codification of French criminal procedure, "the set of legal rules in France that govern the State's response to offenses and offenders". It guides the behavior of police, prosecutors, and judges in dealing with a possible crime. The current code was established in 1958 and replaced the code of 1808 created under Napoleon.

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  57. ↑ Melia, Manuel Cancio (2003). "Victim Behavior and Offender Liability: A European Perspective". Buffalo Criminal Law Review. 7: 539.
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  65. ↑ Hoctor, Shannon (2008). "The concept of dolus eventualis in South African law-an historical perspective". Fundamina: A Journal of Legal History. 14 (2): 14–23.
  66. ↑ Hoctor 2008, pp. 23 n.64.
  67. ↑ Ambos 2006, p. 4.
  68. ↑ Varela, Lorena (2016). "Strict-Liability como forma de imputación jurídico-penal". Indret: Revista Para el Análisis del Derecho (3): 19–26.
  69. ↑ Plantamura, Vito (2016-01-01). "L'omicidio preterintenzionale, anche come species del genus omicidio improvviso". Pisa University Press (in Italian).
  70. ↑ Asworth, Andrew (2013). "Principles of Criminal Law" (PDF). pp. 38, 41.
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