2.1: Types of Intent

Although there are exceptions that are discussed shortly, criminal intent or mens rea is an essential element of most crimes. Under the common law, all crimes consisted of an act carried out with a guilty mind. In modern society, criminal intent can be the basis for fault, and punishment according to intent is a core premise of criminal justice. Crimes that have an “evil” intent are malum in se and subject the defendant to the most severe punishment. Crimes that lack the intent element are less common and are usually graded lower, as either misdemeanors or infractions.

States and the federal government vary in their approach to defining criminal intent, and each jurisdiction describes the criminal intent element in a criminal statute, or case, in jurisdictions that allow common-law crimes. Criminal intents ranked in order of culpability are malice aforethought, specific intent, and general intent. Statutes and cases use different words to indicate the appropriate level of intent for the criminal offense, so what follows is a basic description of the intent definitions adopted by many jurisdictions.

Malice Aforethought

Malice aforethought is a special common-law intent designated for only one crime: murder. The definition of malice aforethought is “intent to kill.” Society considers intent to kill the evilest of all intents, so malice aforethought crimes such as first- and second-degree murder generally mandate the most severe of punishments, including the death penalty in jurisdictions that allow for it.

Specific Intent

Specific intent is the intent with the highest level of culpability for crimes other than murder. Unfortunately, criminal statutes rarely describe their intent element as “specific” or “general,” and a judge may be required to define the level of intent using the common law or a dictionary to explain a word’s ordinary meaning. Typically, specific intent means that the defendant acts with a more sophisticated level of awareness (Connecticut Jury Instructions No. 2.3-1, 2011). Crimes that require specific intent usually fall into one of three categories: either the defendant intends to cause a certain bad result, the defendant intends to do something more than commit the criminal act, or the defendant acts with knowledge that his or her conduct is illegal, which is called scienter.

More specifically, a state statute defines mayhem as “physical contact with another, inflicted with the intent to maim, disfigure, or scar.” This statute describes a specific intent crime. To be guilty of mayhem under the statute, the defendant must inflict physical contact with the intent of causing the bad result of maiming, disfigurement, or scarring. If the prosecution cannot prove this high-level intent, the defendant may be acquitted (or charged and convicted of a lower-level intent crime like battery). So, if Pauline says, “It’s time to permanently mess up that pretty face,” and thereafter takes out a razor and slices Peter’s cheek with it, Pauline might be found guilty of mayhem. On the other hand, if Pauline slaps Peter while he is shaving without making the comment, and the razor bites into his cheek, it is more challenging to prove that she intended to scar, and Pauline might be found guilty only of battery.

Furthermore, the following is an example of specific intent to do more than the criminal act. A state statute defines theft as “a permanent taking of property belonging to another.” This statute describes a specific intent crime. To be guilty of theft under the statute, the defendant must intend to do more than “take the property of another,” which is the criminal act. The defendant must also intend to keep the property permanently. So, if Pauline borrows Peter’s razor to shave her legs, she has “taken the property of another,” but she has not committed theft for the simple reason that she intends to return the property after use. However, we have to look closer to a legal concept referred to as scienter.

Although the terms mens rea and scienter are sometimes used interchangeably, many jurisdictions define scienter as knowledge that an act is illegal. Scienter can be the basis of specific intent in some statutes. So, a statute that makes it a crime to “willfully file a false tax return” may require knowledge that the tax return includes false information and that it will be unlawful to file it (U.S. v. Pompanio, 2010). If the prosecution fails to prove beyond a reasonable doubt that the defendant knew his or her conduct was illegal, this could nullify scienter, and the prosecution cannot prove specific intent.

General Intent

General intent is less sophisticated than specific intent. Thus, general intent crimes are easier to prove and can also result in a less severe punishment. A basic definition of general intent is the intent to perform the criminal act or actus reus. If the defendant acts intentionally but without the additional desire to bring about a certain result, or do anything other than the criminal act itself, the defendant has acted with general intent (People v. McDaniel, 2011).

Intent is a notoriously difficult element to prove because it is locked inside the defendant’s mind. Ordinarily, the only direct evidence of intent is a defendant’s confession, which the government cannot forcibly obtain because of the Fifth Amendment privilege against self-incrimination. Witnesses who hear the defendant express intent are often unable to testify about it because of evidentiary rules prohibiting hearsay. However, many jurisdictions allow an inference of general intent based on the criminal act (Commonwealth v. Ely, 2011). In essence, if the jury accepts the inference, the prosecution does not have the burden of proving intent for a general intent crime.

For example, a state statute defines battery as “intentional harmful or offensive physical contact with another.” This statute describes a general intent crime. To be guilty of battery under the statute, the defendant must only intend the harmful or offensive contact. The defendant does not have to desire that the contact produces a specific result, such as scarring, or death; nor does the defendant need scienter, or awareness that the physical contact is illegal. Now, if Addie balls up her fist and punches Eddie in the jaw after Eddie calls her a “stupid idiot,” Addie has probably committed battery under the statute. A prosecutor could prove that Addie committed the act of harmful or offensive contact using Eddie’s testimony and a physician’s report. The jury could thereafter be instructed to “infer intent from proof of the act.” If the jury accepts the inference and determines that Addie committed the criminal act, the jury could find Addie guilty of battery without additional evidence of intent.

Transferred Intent

Occasionally, the defendant’s criminal intent is not directed toward the victim. Depending on the jurisdiction, this may result in a transfer of the defendant’s intent from the intended victim to the eventual victim, for the purpose of fairness (N.Y. Penal Law, 2011). Although this is legal fiction, it can be necessary to reach a just result. Transferred intent is only relevant in crimes that require a bad result or victim. In a case where intent is transferred, the defendant could receive more than one criminal charge, such as a charge for “attempting” to commit a crime against the intended victim.

For example, Billy and his brother Ronnie get into an argument at a crowded bar. Billy balls up his fist and swings, aiming for Ronnie’s face. Ronnie ducks and Billy punches Amanda in the face instead. Billy did not intend to batter Amanda. However, it is unjust to allow this protective action of Ronnie’s to excuse Billy’s conduct. Thus, Billy’s intent to hit Ronnie transfers in some jurisdictions over to Amanda. Billy can also be charged with attempted battery, which is assault, of Ronnie, resulting in two crimes rather than one under the transferred intent doctrine.