Direct and Oblique Intention in the Criminal Law

An Inquiry into Degrees of Blameworthiness

Itzhak Kugler

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351943994
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The subject of intention in the criminal law is currently causing many debates among criminal lawyers. This compelling and probing volume addresses two key questions: should the criminal law distinguish between direct intention and recklessness, and what should the law be concerning cases of oblique intention - i.e. cases in which the actor does not act in order to cause the proscribed result, but is nevertheless practically certain that his, or her, action will cause it? The discussion is divided into two parts with the first being devoted to the question of whether it is justified to grade offences based on the distinction between intention and recklessness. The second part deals with offences in which intention is required as a condition for the criminalisation of the conduct and in the context of which reckless actors are not exposed to criminal liability. The book explores the issue of intention from the viewpoint of degrees of moral culpability and it discusses, inter alia, the doctrine of double effect, the possibility that the law in cases of oblique intention should not be the same for all crimes of intention, and the possibility of using a moral formula in the definition of certain offences. The discussion also addresses many other criminal law issues, including the philosophy of punishment, the role of motives in determining degrees of blameworthiness, sentencing, stigma, and criminal attempts.

Part One

Chapter 2
Intention and Degrees of Blameworthiness – An Introductory Discussion

2.1 Distinguishing between the Use of Intention to Grade Crimes and Basic Crimes of Intention

What should the legislator do concerning cases of oblique intention? In chapter 1, I suggested that he should first ask himself whether it is appropriate to enact "crimes of intention" in the first place. Why should we treat intention and recklessness differently? Wouldn't it be better if recklessness sufficed for all crimes?¹ If the legislator has a reason to require direct intention for a certain offence, then he can proceed to inquire as to the implications for oblique intention. The first potential reason that comes to mind for treating direct intention and recklessness differently in criminal offences has to do with degrees of moral blameworthiness. It is common to say that a person who acts in order to cause a proscribed result is more blameworthy than a person who only takes an unjustified risk that the same result will ensue (i.e., who is reckless). But even if we assume that there is a difference between the blameworthiness of a person acting with direct intention and that of a person acting with recklessness - and even if we also assume that this difference can justify the grading of offences along the lines drawn by the distinction between direct intention and recklessness - we still have to ask ourselves whether there is a valid reason to enact basic crimes of intention. Many think that the main purpose of the criminal law is to protect against harms by general deterrence. In order to protect against harms the legislator enacts criminal offences that contain a prohibition against doing certain acts, together with a threat of punishment. The legislator hopes that people will be deterred by the threat of punishment and act accordingly. If this is the case, it seems that recklessness should suffice for conviction in "basic crimes". The legislator must not only deter people who are going to cause harms purposely but also people who are going to take unjustified risks of causing harms. Take, for example, the offence of "causing bodily harm to a person". If in a certain country there is no offence of causing bodily harm recklessly (but only an offence of causing it intentionally) then the criminal law of that country does not act as a deterrent against acting recklessly as to causing bodily harm, and consequently the protection afforded to the value of bodily integrity is not sufficient in that country. A person who plans to clear his roof and, in the process, to throw heavy stones on the street with the awareness that by doing so he might cause bodily harm to people walking on the street, will not feel threatened by the criminal law, and this might lead him to act in the described manner and to cause bodily harm. Thus, in order to adequately protect the bodily integrity of people, we need to have an offence of causing bodily harm recklessly. It seems that the argument above applies (at least at first glance) to all crimes the definition of which contains an actual or potential result element. The goal of ensuring adequate protection against harms will only be achieved if people are deterred both from causing them purposely and from causing them recklessly.² Of course, even if the main purpose of the criminal law is general deterrence, justice and fairness require that we not convict and punish morally innocent people, even if doing so would contribute in some way to an increase in general deterrence.³ Hence the common idea that criminal liability should generally not attach unless the actor has a culpable state of mind when he is acting.⁴ But it seems that the reckless actor, who knowingly takes an unjustified risk that the result will ensue, is sufficiently morally blameworthy, to permit conviction and punishment for the purpose of general deterrence.⁵ Hence, the very common idea that recklessness should suffice for conviction in "basic crimes".⁶ Indeed, in some criminal codes the general part contains a provision to the effect that when the definition of an offence does not specify the mental element required, recklessness suffices for conviction.⁷ Such provisions seem to proceed on the assumption that recklessness is the mental element that should suffice in most offences. It follows from the discussion above that even if we assume that there is more moral blameworthiness in acting with direct intention than in acting with recklessness, the idea of having basic crimes of intention is highly problematic, and it is perfectly reasonable to have a criminal code with no basic crimes of intention at all.⁸ The situation is different, however, in deliberating whether to grade offences according to the distinction between intention and recklessness. Here the discussion starts with the assumption that liability in cases of recklessness will be provided for, so that a deterrent against acting recklessly will be secured. The idea of grading would then be designed to merely provide for an increase in punishment for acting with intention. It is a common idea that in using their discretion in sentencing specific offenders, judges take (and should take) into consideration the degree of the moral blameworthiness of the offender, as the severity of punishment should be proportional to the degree of the offender's moral culpability.⁹ If we accept this idea, then it also seems reasonable to suggest that the legislator grade offences by degrees of blameworthiness and that the penalty for more heinous acts be more severe than the penalty for less heinous acts.¹⁰ So, if we believe that those who act with direct intention are morally more blameworthy than those who act recklessly, then we might want to grade offences according to the distinction between intention and recklessness. Because it is easier to understand why the distinction between intention and recklessness would be used for the purpose of grading offences than to understand why "basic crimes of intention" would be enacted, I will deal first with the issue of grading and leave the issue of "basic crimes of intention" to Part Two of the book. So my discussion in the first part will be devoted to the question whether the legislator should grade offences according to the distinction between direct intention and recklessness, and if so - what he should do concerning cases of oblique intention.

2.2 Examples of the Use of Intention in Grading Offences

Before I proceed further in the discussion, I would like first to bring some examples where the distinction between intention and recklessness is used to grade offences. The Draft Criminal Code for England and Wales of 1989 has two separate offences of causing serious personal harm to another. One offence deals with cases where the forbidden result is intentionally caused and the other with cases where it is caused recklessly. The maximum punishment provided for the first offence is higher than that provided for the second one.¹¹ In Canada, the proposed draft Criminal Code of 1987 distinguishes, inter alia, between the crime of purposely causing the death of another person (Murder) and the crime of recklessly causing the same result (Manslaughter).¹² The first one is considered more serious and is intended to carry a higher penalty than the second.¹³In the Model Penal Code,¹⁴ a person who starts a fire or causes an explosion with the purpose of destroying a building or occupied structure of another is guilty of a felony of the second degree under section 220.1(1)(a), while according to section 220.1(2)(b), a person who purposely starts a fire or causes an explosion and thereby recklessly places a building or occupied structure of another in danger of destruction, is only guilty of a felony of the third degree.¹⁵

2.3 Subjecting to Scrutiny the Idea that Acting with Intention is More Blameworthy than Acting with Recklessness

1 now return to the question whether the legislator should grade offences according to the distinction between direct intention and recklessness, and if so - what he should do concerning cases of oblique intention. The first potential reason that leaps to mind for grading offences according to the distinction between direct intention and recklessness relates to degrees of moral blameworthiness. In this book I will concentrate on this potential rationale. As I said earlier (supra in 2.1), if it is correct that causing a certain proscribed result intentionally is morally more blameworthy than causing it recklessly, then it seems reasonable to grade offences according to this difference. So the first question to be addressed is whether it is a well founded assumption that the person who acts with direct intention is morally more culpable than the person who acts with recklessness ¹⁶ I now turn to this question.

It is common to find in the literature the idea that there is more moral blameworthiness in causing a proscribed result intentionally than in causing it recklessly.¹⁷ But is this correct? I will now subject this idea to critical scrutiny by adducing a number of hypothetical situations in which the reckless actor appears to be morally more culpable than the one who acts with intent to bring about the proscribed result. I will advance three sets of two imaginary cases in order to make my point. Of course, in each set the amount of harm caused (and foreseen) by the defendant in the two cases will remain constant. That means that I will not deal, for example, with the case in which a person recklessly causes a grievous bodily harm that is much more serious than the grievous bodily harm intentionally caused by another person. Nor will I invoke the case in which a person recklessly causes damage of $100,000 to the property of another to show that this person is more culpable than the one who intentionally causes damage of $100 to the property of another. I will not use such examples because, as the latter two cases illustrate, though the first person may be considered more blameworthy than the second, this does not further us in our inquiry, because the difference in the amount of the damage caused (or in the severity of the bodily harm) explains why the reckless actor is considered more blameworthy.

1. John takes a gun and shoots at his little son in order to kill him and, in this way, to relieve him of the extreme pain he has to endure on account of an incurable disease (suppose there is no other way of relieving him of the pain). The son is killed.
   Sam wants to practice in marksmanship. He puts an apple on the head of his little son and shoots with a gun intending to hit the apple but knowing that there is a substantial risk that he will miss and kill his son. He misses and kills him.
2. Sally is brutally raped by a man. The rape destroys her life, and changes it from happy to miserable. The rapist is caught and prosecuted but is acquitted on a procedural technicality. After the trial, the rapist is interviewed in the newspapers and ridicules Sally. He tells lies, describes her as licentious, and claims that she actually seduced him. Sally decides to take revenge by causing grievous harm to the rapist's leg. She takes a gun and shoots at his leg in order to cause it grievous harm, and succeeds in doing so.
   Sara makes a $100 bet with a friend that she can shoot towards a doorstep with a person standing on it and hit the step without causing the person any harm. She takes a gun and shoots towards a step with a person standing on it (the person does not know anything about what is going to happen). She hopes that no harm will be caused but she knows that there is a substantial risk that grievous harm will be caused to the person's leg. Indeed, this is what happens.
3. A person dies and his son inherits two objects of equal monetary value. The first object is a manuscript of a book about the life of George, a famous individual. George knows that the manuscript is full of lies and that, if published, it would destroy both his family life and professional career. By the law of the land, he is unable to prevent the publication of the book by legal means. Though he may receive compensation afterwards, it will be too late to save his family life and career. So he comes to the conclusion that he has to destroy the manuscript. He decides to act in order to destroy the manuscript, and does so.
   The second object inherited by the son is a very valuable vase. During a visit, the son's friend Peter wants to amuse himself by throwing the vase in the air and catching it, and does so (the son does not see him though). He hopes that nothing will happen but he knows that there is a substantial risk that the vase will fall on the floor and get shattered to pieces. And, indeed, this is what happens.

In the cases above, the first actor in every set acts with intent to cause the harm, while the second is reckless. Nevertheless, many would agree, I believe, that in every set the reckless actor is morally more culpable than the one who acts with intent to cause the harm. And we could advance many other examples in which the reckless actor is the more blameworthy one. One may conclude, therefore, that the idea that a person who acts with intent to cause harm is morally more culpable than the person who acts with recklessness with respect to the same harm, is false. And, indeed, if this idea is false then we should not grade offences based on the distinction between intention and recklessness, if this grading is supposed to be based on a moral difference between the two.¹⁸

2.4 The Key Question: Is There a Difference in Moral Culpability between Intention and Recklessness when the Motive Remains Constant?

It may be argued against the examples advanced above that they fail to refute the argument that a person who acts with intent to cause harm is morally more culpable than the person who acts with recklessness. For in each set of examples there is an important difference between the motives of the actor who acts with intention and the motives of the actor who acts with recklessness. The reason for the judgment that in each set the one who acts with intention is less blameworthy than the one who acts with recklessness is that the motives of the former are either more praiseworthy or more understandable than the motives of the latter. In the first set, the actor's compassion towards his suffering son and his desire to put an end to his agony constitute good motives in themselves, and operate to significantly reduce his moral blameworthiness with respect to the killing. On the other hand, the person who takes a substantial risk that his act will kill his son is motivated by a desire to practice in marksmanship, and taking a substantial risk of killing one's son for this reason is very heinous indeed. In the second set, Sally's motives are much more understandable than those of Sara who acts in order to win a bet. And in the third set, the motives of George who wants to protect his family life and professional career from being destroyed by lies, are much better or much more understandable than the motives of Peter who takes the substantial risk of causing great damage to the property of another just for a little amusement.

The present argument is that the above examples cannot be of assistance in determining whether there is a moral difference between acting with intention and acting with recklessness, because the fact that the motives of the actor do not remain constant in the two cases of each set skews the comparison. Using the examples above in order to prove that acting with intention is not more blameworthy than acting with recklessness is misguided, therefore. Indeed, this is much like the fallacy in the argument designed to prove that acting with intention is not more blameworthy than acting with recklessness, by bringing the example of a person who recklessly causes damage of $ 100,000 to the property of another and showing that he is more blameworthy than a person who intentionally causes damage of $ 100 to the property of another.

But directing our attention to the motives of the actor cannot end the discussion. Quite the contrary, it may enable us to counter-attack, and perhaps more clearly, proponents of the distinction between intention and recklessness. Indeed, motives play a very important role in determining the existence and assessing the degree of moral blameworthiness. In proceeding to assess the moral blameworthiness of a person, it is not sufficient to know what she did. It is very important to know why she did it and for what goal, it is important to take notice of her whole complex of motives and purposes.¹⁹ This fact finds expression in various contexts, and one of them is the context of sentencing. It is well accepted that in exercising their discretion in determining the sentence of the offender, judges take (and should take) into account the motives of the offender.²⁰ They consider the whole array of motives that led the offender to act as she did and the goals that she wanted to achieve. The major rationale for this practice...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• INTRODUCTION
• PART ONE
• PART TWO
• Bibliography
• Index