Transferred intent
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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, a court typically must demonstrate that the perpetrator had criminal intent (mens rea), that is, that they knew or should have known that another would be harmed by their actions and wanted this harm to occur. For example, 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
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.
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Discussion
In the United States
In United States criminal law, transferred intent is sometimes explained by stating that "the intent follows the bullet".[citation needed] That is, the intent to kill a person by gunshot would still apply even if the bullet kills an unintended victim (see mens rea).[citation needed]
In
A 1960s-era proposal, the Model Penal Code, invited states to adopt a standard where an element of a crime could be established, even though:
- The offender caused the intended harm, but to a different person or item than the one they intended; or
- The offender caused "the same kind of injury or harm" as intended, in a manner that was "not too remote or accidental in its occurrence".[4]: § 2.03
The principle underlying the Unborn Victims of Violence Act of 2004 treats the fetus as a separate person for the purposes of all levels of assault including murder and attempted murder.[relevant?]
In the United Kingdom
In the UK the transferred malice doctrine is not without controversy. The
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
- ^ "LexisNexis® for Law Schools – Sign In – LexisNexis". www.lexisnexis.com. Retrieved 27 May 2018.
- ^ Bradshaw v. Richey, 546 U.S. 74 (2005)
- ^ State v. Sowell, 39 Ohio St. 3d 322 (1988)
- ^ American Law Institute. "Model Penal Code".
- ^ 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
- ^ 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.