Transferred intent

Transferred intent(ortransferredmens rea,ortransferred malice,inEnglish law) is alegal doctrinethat holds that, when theintentionto harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible. To be heldlegally 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 totort law,in which there are generally five areas where transferred intent is applicable:battery,assault,false imprisonment,trespass to land,andtrespass to chattels.Generally, anyintentto 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 ofCarnes v. Thompson,48 S.W.2d 903 (Mo. 1932) andBunyan v. Jordan(1937), 57 C.L.R. 1, 37 S.R.N.S.W. 119 for examples.

Discussion

In the United States

In United States criminal law, transferred intent is sometimes explained by stating that "the intent follows thebullet".That is, the intent to kill a person bygunshotwould still apply even if the bullet kills an unintended victim (seemens rea).

InOhio law,the doctrine of transferred intent was held to be valid inBradshaw v. Richey.It cited the 1988 decision inState v. Sowell,which said "if one purposely causes the death of another and the death is the result of a scheme designed to implement the calculated decision to kill someone other than the victim, the offender is guilty of aggravated murder", and concluded that the doctrine was "firmly rooted" in Ohio precedent dating to at least 1874.

A 1960s-era proposal, theModel 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".

The principle underlying theUnborn Victims of Violence Actof 2004 treats thefetusas a separate person for the purposes of all levels ofassaultincludingmurderandattempted murder.

In the United Kingdom

In the UK the transferred malice doctrine is not without controversy. TheHouse of LordsinAttorney General's Reference No 3 of 1994reversed theCourt of Appealdecision (reported at (1996) 2 WLR 412), holding that the doctrine of transferred malice could not apply to convict an accused ofmurderwhen 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 thefetuswas part of the mother so that any intention to causegrievous 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 themens reaof murder. That was too much. But the accused could be convicted ofmanslaughter.

InR v Gnango,theSupreme Courtcontroversially 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.

References

• 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.