Abstract
Common law treats cases of misfire in which the actor has a valid defence in relation to either the intended victim or the victim actually harmed as particular instances of ‘transferred malice’. It is said that just as the actor’s intention is fictitiously ‘transferred’ from the intended victim to the victim harmed so are defences, meaning that any—and only—defences that would have been available to the actor had he harmed the intended victim will be granted to him with regard to the harm caused to the actual victim. I argue that the blanket solution of transferring defences ‘as is’, without accounting for their differing rationales and their specific implications for cases of misfire, produces bad reasoning and oversimplified decisions—and should therefore be substituted by a separate examination of the actor’s liability with respect to each victim and each type of defence. However, I reject the more robust argument that commentators have made, that a conclusion against transferring defences entails a conclusion against transferred malice in general. I argue that the underlying logic of transferred malice—i.e., treating victims of equivalent wrongs alike—stays intact even if we excise from it the treatment of cross-victim defences.
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Notes
Saunders and Archer (1577) 75 Eng. Rep. 706 (QB); R v Gnango [2011] UKSC 59 (discussed below). See also the Canadian Criminal Code, s. 229(b). For a survey of the prevalence of the doctrine in jurisdictions within the US, see Travis E. Robey, ‘Recent Decisions: The Court of Appeals of Maryland—Criminal Law’, Maryland Law Review 64 (2005) 1098, 1106-1108; Peter Westen, ‘The Significance of Transferred Intent’ Criminal Law & Philosophy 7 (2013) 321, 329–330. As a rule, US jurisdictions apply the doctrine of transferred malice or its concurrent ‘impersonality principle’, which makes it immaterial which object is harmed as long as it is of the same type as the object intended (e.g., ‘human’, ‘inanimate object’). The impersonality principle is reiterated in the Model Penal Code, s. 2.03(2)(a) (American Law Institute, 1962).
Glanville Williams, Criminal Law: The General Part (London: Stevens & Sons, 2nd ed, 1961) 132. To a similar effect, see Andrew Ashworth, ‘Transferred Malice and Punishment for Unforeseen Consequences’ in P. Glazebrook (ed.), Reshaping the Criminal Law—Essays in Honor of Glanville Williams (London: Stevens & Sons, 1978) 77, 80; Jonathan Herring, Criminal Law (Oxford: Oxford University Press, 6th ed, 2014) 164; A.P. Simester, J.R. Spencer, F. Stark, G.R. Sullivan and G.J. Virgo, Simester and Sullivan’s Criminal Law—Theory and Doctrine (Oxford: Hart Publishing, 6th ed, 2016) 174.
Michael Bohlander, ‘Transferred Malice and Transferred Defenses: A Critique of the Traditional Doctrine and Arguments for a Change in Paradigm’, New Criminal Law Review 13 (2010) 555, 616.
For this view see Williams (n 2) 133–134; Shachar Eldar, ‘The Limits of Transferred Malice’, Oxford Journal of Legal Studies 32 (2012) 633, 649–657. Alternatively, Jeremy Horder offered the qualifier of the remoteness of the outcome to the actual victim from the initial intention. See Jeremy Horder, ‘Transferred Malice and the Remoteness of Unexpected Outcomes from Intentions’, Criminal Law Review [2006] 383.
A wider search reveals further possibilities, such as the doctrine of ‘transferred object’, which subsumes the actual victim under the intended one to construct a consummated offence against the intended victim, as if it had been harmed—at times coupled with the idea of also transferring the defence with the object. This position is prevalent in Israeli scholarship on the issue.
Douglas N. Husak, ‘Transferred Intent’, Notre Dame Journal of Legal Ethics & Public Policy 10 (1996) 65.
Khalid Ghanayim and Mordechai Kremnitzer, ‘Mistaken Identity and Error in Performance: A Transferred Malice?’, Criminal Law Quarterly 61 (2014) 329, particularly at 342. Purism has also attracted support among some leading Anglo-American scholars. See Andrew Ashworth, ‘The Elasticity of Mens Rea’ in C.F.H. Tapper (ed.), Crime, Proof and Punishment: Essays in Memory of Sir Rupert Cross (London: Butterworths, 1981) 45, 57–58; Heidy M. Hurd and Michael S. Moore, ‘Negligence in the Air’, Theoretical Inquiries in Law 3 (2002) 333, 390.
For further examples of type 2 scenarios see below (n 14) and accompanying text.
See (n 2).
See Williams (n 2) 132; Simester and others (n 2) 174.
See Wayne R. LaFave and Austin W. Scott, Jr, Substantive Criminal Law (St. Paul, Minn: West Publishing, 1986) 401–402.
Model Penal Code, s. 3.09(3).
George P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown & Co, 1978) 760–761 (also showing that the universal implication of justifications is grounded in various criminal codes); John C. Smith, Justification and Excuse in the Criminal Law (London: Stevens & Sons, 1989) 8–12; Paul H. Robinson, Structure and Function in Criminal Law (Oxford: Clarendon Press, 1997) 105–106. Some argue that universality is a trait only of lesser-evil justifications, such as necessity and proportional self-defence. The questions whether some acts might be justified even if they do not promote (and/or are not meant to promote) the greater good, and if so, whether universality is retained, relate to the threshold of justificatory defences (and to whether the classification is helpful), which I do not discuss here. On this issue, see Kent Greenawalt, ‘The Perplexing Borders of Justification and Excuse’, Columbia Law Review 84 (1984) 1897, 1918–1925; Douglas N. Husak, ‘Justifications and the Criminal Liability of Accessories’, Journal of Criminal Law & Criminology 80 (1989) 491, 517–518; R.A. Duff, Answering for Crime—Responsibility and Liability in the Criminal Law (Oxford and Portland: Hart Publishing, 2007) 266–267. I will use ‘justification’ as shorthand for the core of this class of defence—i.e., a defence of knowingly promoting the greater good—where the universality trait comfortably applies.
Peter Westen devised an example involving an actor who aims to kill his rival at the rival’s home, but inadvertently kills a burglar who, unbeknownst to the actor, was hiding on the premises (to make this relevant as a scenario of defence, we need to assume that the burglar posed an immediate threat to the actor). See Westen (n 1) 331.
In R v Dadson (1850) 4 Cox CC 358, the court made the availability of a justification contingent on the actor’s awareness of the justifying circumstances.
Discussed in Paul H. Robinson, ‘The Bomb Thief and the Theory of Justification Defenses’, Criminal Law Forum 8 (1998) 387; Simester and others (n 2) 687–689.
See the sources at (n 27).
As I qualify this term in (n 13).
Also refered to as defences of irresponsibility. John Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford: Oxford University Press, 2007) 132.
Andrew Simester, ‘On Justifications and Excuses’ in L. Zedner and J.V. Roberts (eds.), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford: Oxford University Press, 2012) 97, 107–108.
Simester and others (n 2) 174. They expressly—but laconically—criticize my analysis in Eldar (n 4) 642.
Mitchel [1983] QB 741 at 748; and to the same effect, see Saunders and Archer (n 1) 708.
This is the position advocated for in Paul H. Robinson, ‘A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability’, UCLA Law Review 23 (1975) 266.
Douglas N. Husak, ‘Motive and Criminal Liability’, Criminal Justice Ethics 8 (1989) 3, 10–11.
For a discussion and critique of forfeiture theories in Anglo-American thinking, see Douglas N. Husak, ‘Comparative Fault in Criminal Law: Comparative and Normative Perplexities’, Buffalo Criminal Law Review 8 (2005) 523; Kenneth W. Simons, ‘The Relevance of Victim Conduct in Tort and Criminal Law’, Buffalo Criminal Law Review 8 (2005) 541, 554–557.
See (n 13).
Compare George P. Fletcher, ‘Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory’, Israel Law Review 8 (1973) 367 (recounted in his Rethinking Criminal Law [n 13] 860–862), and Mordechai Kremnitzer, ‘Proportionality and the Psychotic Aggressor: Another View’, Israel Law Review 18 (1983) 174.
Russel L. Christopher, ‘Mistake of Fact in the Objective Theory of Justification: Do Two Rights Make Two Wrongs Make Two Rights…?’, Journal of Criminal Law & Criminology 85 (1994) 295.
Miriam Gur-Arye, Actio Libera in Causa in Criminal Law (Jerusalem: Harry Sacher Institute, 1984).
Gnango (n 1).
Ibid, para 2.
The minority judge in Gnango, Lord Kerr, refused to regard Gnango as a party to Bandana Man’s actions. The judgment in Gnango has also attracted accademic criticism on various grounds; see for example the debate in Graham Virgo, ‘Joint Enterprise Liability is Dead: Long Live Accessorial Liability’, Criminal Law Review [2012] 275; Peter Mirfield, ‘Guilt by Association: A Reply to Professor Virgo’, Criminal Law Review [2013] 577; Graham Virgo, ‘Guilt by Association: A Reply to Peter Mirfield’, Criminal Law Review [2013] 584.
In the words of Williams (n 2) 357: ‘It seems to be a general principle that the victim of an offence is not punishable’. Dennis Baker has demonstrated that the victim defence was a general rule in common law, in Dennis J. Baker, ‘Mutual Combat Complicity, Transferred Intention/Defenses and the Exempt Party Defense’, University of La Verne Law Review 37 (2016) 205, 267–283.
Another possibility could have been to seek alternative grounds for convicting Gnango of the passerby’s death at the hands of Bandana Man, but the court believed that it had exhausted all possibilities.
Gnango (n 1) para 52–54.
Ibid, para 52.
Jonathan Herring, ‘Victims as Defendants: When Victims Participate in Crimes against Themselves’ in A. Reed and M. Bohlander (eds.), Participation in Crime: Domestic and Comparative Perspectives (Aldershot: Routledge, 2013) 79, 83. He is referring to Wright (1603) 1 CoLit 1279.
Following David Ormerod, ‘Joint Enterprise: Murder—Killing of Bystander by Other Party in Gunfight’, Criminal Law Review [2011] 151, the Court contemplated the possibility that Bandana Man had acted in self-defence but rejected the idea. See Gnango (n 1) para 106.
Ghanayim and Kremnitzer (n 7) 356.
Bohlander (n 3) 558 [emphasis in the original], and see further at 619. The term ‘relational defences’ refers broadly to the category of defences which I labeled ‘victim-sensitive’.
Duff (n 13) 216–224.
Fletcher (n 13) 566–568.
John Gardner, ‘Justifications and Reasons’, in A.P. Simester and A.T.H. Smith (eds.), Harm and Culpability (Oxford: Clarendon Press, 1996) 103.
Victor Tadros, Criminal Responsibility (Oxford: Oxford University Press, 2005) 108–115.
Duff (n 13) 220.
Fletcher (n 13) 567.
Duff (n 13) 223. In a polity in which citizens generally respect each other’s property rights and do not steal unless when coerced to do so by conditions caused by citizens of a neighbouring polity, it may make practical (if not also moral) sense to include the exculpating factors of necessity and duress in the definition of theft for the offence to fairly constitute a presumption of criminal wrong. In a polity in which each citizen respects only their own property rights, it may be sensible to allow the court upon proof of deprivation of property to presume the commission of theft, a presumption which the actor may challenge through a defence of honesty. The assignation of necessity and duress to defences (as in current Anglo-American law) or to the definition of theft, and the inclusion of an element of dishonesty in the definition of theft (as in current Anglo-American law) or its exclusion to form a defence of honesty, is, to a certain extent, coincidental.
See most famously Glanville Williams, ‘The Logic of Exceptions’, Cambridge Law Journal 47 (1988) 261. In the Model Penal Code s. 1.13(9), the definition of ‘elements of an offense’ includes elements that negate justifications or excuses for the conduct proscribed in the prohibition.
Williams (n 2) 128. A possible exception is the case in which the harm caused is less severe than the harm intended. The Model Penal Code s. 2.03(2)(a) states that the condition of the similarity of harm does not inhibit transfer where ‘the injury or harm designed or contemplated would have been more serious or more extensive than that caused’. This exception is defended in Ashworth (n 2) 82. For further potential exceptions see Eldar (n 4) 640–646.
Horder named this tenet the ‘no-translation’ rule. See Horder (n 4) 390.
[1874] LR 2 CCR 119.
David Ormerod and Karl Laird, Smith and Hogan’s Criminal Law (Oxford: Oxford University Press, 14th ed, 2015) 151–152. Apparently, by ‘the broader sense’ Ormerod and Laird mean to include in the actus reus the acts, circumstances, and consequences stipulated in the offence definition in addition to the absense of a justification. Although in the cited excerpt Ormerod and Laird refer explicitly to justifications, the contingency of the placement of exculpating factors could possibly also extend to excuses (e.g., the absence of [disproportionate] duress may be embedded in the definition of the actus reus). This is however of little consequence to the discussion, because we have seen that for those defences that are not interchangeable with negative elements in the offence the inappropriateness of transferring defences cannot sustain a general argument against the doctrine of transferred malice.
Ibid, 675.
See (n 30–37).
Elsewhere, I argue that the doctrine of transferred malice is more vulnerable to arguments against its implications for accomplice liability. See Shachar Eldar, ‘Examining Intent through the Lens of Complicity’, The Canadian Journal of Law & Jurisprudence 28 (2015) 29.
Williams (n 2) 126; LaFave and Scott (n 11) 399.
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Eldar, S. Cross-Victim Defences. Criminal Law, Philosophy 16, 135–151 (2022). https://doi.org/10.1007/s11572-020-09552-7
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DOI: https://doi.org/10.1007/s11572-020-09552-7