Transferred intent

Transferred intent (or transferred mens rea, or transferred malice, in English law) is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible. To be held legally responsible under the law, usually the court must demonstrate that the person has criminal intent, that is, that the person knew another would be harmed by his or her actions and wanted this harm to occur. If a murderer intends to kill John, but accidentally kills George instead, the intent is transferred from John to George, and the killer is held to have had criminal intent.

Transferred intent also applies to tort law.[1] In tort law, there are generally five areas in which transferred intent is applicable: battery, assault, false imprisonment, trespass to land, and trespass to chattels. Generally, any intent to cause any one of these five torts which results in the completion of any of the five tortious acts will be considered an intentional act, even if the actual target of the tort is one other than the intended target of the original tort.

See cases of Carnes v. Thompson, 48 S.W.2d 903 (Mo. 1932) and Bunyan v. Jordan (1937), 57 C.L.R. 1, 37 S.R.N.S.W. 119 for examples.

Discussion

In the United States

In US criminal law, transferred intent is sometimes explained by stating that "the intent follows the bullet". That is, the intent to kill person A with a bullet will apply even when the bullet kills the unintended victim, person B (see mens rea). Thus, the intent is transferred between victims. However, intent only transfers between harms of a similar nature.[2] For example, if the defendant shoots at "Person A" intending to kill "A" but the bullet misses and instead hits a vase, causing it to break, the defendant is not deemed to have intended to break the vase. This is because destruction of property is a kind of harm different from that contemplated by defendant. The rationale underlying this distinction is that the defendant has only one intent. If the law were to deem that the defendant intended to destroy property, it would be placing on him an intent he never had—he would now have both the intent to kill and the intent to destroy property. In contrast, where the defendant intends to kill one person but ends up killing another, there is still only one intent—the intent to kill.[3] However, if the crime includes aggravating factors based on the victim's identity (such as a police officer, witness, or protected class), then the factors must be proven to have actually occurred in order to impose an enhanced sentence.[4] For instance, if the defendant intends to kill a police officer in a jurisdiction where that is punishable by death, but instead kills a civilian, the death penalty may not be imposed unless there was another aggravating factor that actually occurred.

The principle underlying the Unborn Victims of Violence Act of 2004 in the United States applies only to offenses over which the U.S. government has jurisdiction, namely crimes committed on Federal properties, against certain Federal officials and employees, and by members of the military, but treats the fetus as a separate person for the purposes of all levels of assault including murder and attempted murder:

Sec. 1841. Protection of unborn children

• (a)(1) Whoever engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section.
• (2)(A) Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child's mother.
• 2(B) An offense under this section does not require proof that–
  • (i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or
  • (ii) the defendant intended to cause the death of, or bodily injury to, the unborn child.
• 2(C) If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall instead of being punished under subparagraph (A), be punished as provided under sections 1111, 1112, and 1113 of this title for intentionally killing or attempting to kill a human being.

In the United Kingdom

In the UK the transferred malice doctrine is not without controversy. The House of Lords in Attorney General's Reference No 3 of 1994[5] reversed the Court of Appeal decision (reported at (1996) 2 WLR 412), holding that the doctrine of transferred malice could not apply to convict an accused of murder when the defendant had stabbed a pregnant woman in the face, back and abdomen. Some days after she was released from hospital in an apparently stable condition, she went into labour and gave birth to a premature child, who died four months later. The child had been wounded in the original attack but the more substantial cause of death was her prematurity. It was argued that the fetus was part of the mother so that any intention to cause grievous bodily harm (GBH) to the mother was also an intent aimed at the fetus. Lord Mustill criticised the doctrine as having no sound intellectual basis, saying that it was related to the original concept of malice, i.e. that a wrongful act displayed a malevolence which could be attached to any adverse consequence, and this had long been out of date. Nevertheless, it would sometimes provide a justification to convict when that was a common sense outcome and so could sensibly be retained. The present case was not a simple "transfer" from mother to uterine child, but sought to create an intention to cause injury to the child after birth. This would be a double transfer: first from the mother to the fetus, and then from the fetus to the child when it was born. Then one would have to apply the fiction which converts an intention to commit GBH into the mens rea of murder. That was too much. But the accused could be convicted of manslaughter.

In R v Gnango, the Supreme Court controversially held that under the doctrines of joint enterprise and transferred malice D2 is guilty of V's murder if D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if D1 mistakenly kills V in the course of the fight.[6]

References

1. "LexisNexis® for Law Schools – Sign In – LexisNexis". www.lexisnexis.com. Retrieved 27 May 2018.
2. "Model Penal Code, 2.03(2)". Retrieved May 11, 2012.
3. "Regina v. Faulkner Case Brief".
4. "Borchardt v. Maryland" (PDF).
5. Attorney General's Reference No 3 of 1994 [1997] UKHL 31, [1998] 1 Cr App Rep 91, [1997] 3 All ER 936, [1997] 3 WLR 421, [1997] Crim LR 829, [1998] AC 245 (24 July 1997), House of Lords
6. Regina v Armel Gnango [2011] UKSC 59 (14 December 2011)

• Dillof, Transferred Intent: An Inquiry into the Nature of Criminal Culpability, (1998) Vol 1, Buffalo Criminal Law Review, 501.
• Husak, Transferred Intent, (1996) Vol. 10 Notre Dame Journal of Law, Ethics and Public Policy, 65.