Transferred intent
Encyclopedia
Transferred intent describes the fact that intent can be transferred between victims, between torts, or both. 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, (1932) Supreme Court of Missouri. 48 S.W. 2d 903 and Bunyan v. Jordan (1937), 57 C.L.R. 1, 37 S.R.N.S.W. 119 for examples.
Transferred intent (or transferred malice in English law
) is a doctrine also used in criminal law
when the intention to harm one individual inadvertently causes a second person to be hurt instead. Under the law, the individual causing the harm will be seen as having "intended" the act by means of the "transferred intent" doctrine.
). Thus, the intent is transferred between victims. If the bullet misses the person and destroys a valuable vase, the intent transfers between both the victims and the torts. The intent was to pull the trigger, the tort is the resulting harm, or the wrong, that is done. Battery would have been the tort if the bullet had struck person A. If the bullet destroys a vase it would most likely be conversion (i.e. depriving the owner of the entire value of the vase.)
In the UK the transferred malice doctrine is not without controversy. The House of Lords
in Attorney General's Reference No 3 of 1994 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 in English law
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 English law
.
It is interesting to compare the principle underlying the Unborn Victims of Violence Act
2004 in the United States
which 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(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.(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.
Battery (tort)
At common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them . Unlike assault, battery involves an actual contact...
, assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
, false imprisonment
False imprisonment
False imprisonment is a restraint of a person in a bounded area without justification or consent. False imprisonment is a common-law felony and a tort. It applies to private as well as governmental detention...
, trespass to land
Trespass to land
Trespass to land is a common law tort that is committed when an individual or the object of an individual intentionally enters the land of another without a lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered upon may sue even if no actual harm is done...
, and trespass to chattels
Trespass to chattels
Trespass to chattels is a tort whereby the infringing party has intentionally interfered with another person's lawful possession of a chattel...
. 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, (1932) Supreme Court of Missouri. 48 S.W. 2d 903 and Bunyan v. Jordan (1937), 57 C.L.R. 1, 37 S.R.N.S.W. 119 for examples.
Transferred intent (or transferred malice in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
) is a doctrine also used in criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
when the intention to harm one individual inadvertently causes a second person to be hurt instead. Under the law, the individual causing the harm will be seen as having "intended" the act by means of the "transferred intent" doctrine.
Discussion
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 reaMens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
). Thus, the intent is transferred between victims. If the bullet misses the person and destroys a valuable vase, the intent transfers between both the victims and the torts. The intent was to pull the trigger, the tort is the resulting harm, or the wrong, that is done. Battery would have been the tort if the bullet had struck person A. If the bullet destroys a vase it would most likely be conversion (i.e. depriving the owner of the entire value of the vase.)
In the UK the transferred malice doctrine is not without controversy. The House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
in Attorney General's Reference No 3 of 1994 reversed the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
decision (reported at (1996) 2 WLR 412), holding that the doctrine of transferred malice could not apply to convict an accused of murder in English law
Murder in English law
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...
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
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
was part of the mother so that any intention to cause grievous bodily harm
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
(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 English law
Manslaughter in English law
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea . In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option...
.
It is interesting to compare the principle underlying the Unborn Victims of Violence Act
Unborn Victims of Violence Act
The Unborn Victims of Violence Act of 2004 is a United States law which recognizes a "child in utero" as a legal victim, if he or she is injured or killed during the commission of any of over 60 listed federal crimes of violence...
2004 in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
which applies only to offenses over which the U.S. government has jurisdiction, namely crimes committed on Federal
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
properties, against certain Federal
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
officials and employees, and by members of the military, but treats the fetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
as a separate person for the purposes of all levels of assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
including murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
and attempted murder
Attempted murder
Attempted murder is a crime in England and Wales and Northern Ireland.-Today:In English criminal law, attempted murder is the crime of more than merely preparing to commit unlawful killing and at the same time having a specific intention to cause the death of human being under the Queen's Peace...
:
"Sec. 1841. Protection of unborn children(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.(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."