Legal Theory



ARTICLES

CONDITIONAL INTENT AND MENS REA


Gideon Yaffe a1 a
a1 University of Southern California

There are many categories of action to which specific acts belong only if performed with some particular intention. Our commonsense concepts of types of action are sensitive to intent—think of the difference between lying and telling an untruth, for instance—but the law is replete with clear and unambiguous examples. Assault with intent to kill and possession of an illegal drug with intent to distribute are both much more serious crimes than mere assault and mere possession. A person is guilty of a crime of attempt—attempted murder, for instance, or attempted rape—only if that person had the intention to perform a crime. Under the federal carjacking law, an act of hijacking an automobile counts as carjacking only if performed with the intention to kill or inflict serious bodily harm on the driver of the car. 1 In all of these cases, the question of whether or not a particular defendant had the precise intention necessary for the crime can make a huge difference, often a difference of years in prison, but sometimes literally a difference of life or death; sometimes whether the crime is one for which the death penalty can be given turns solely on the question of whether or not the actor had the relevant intention.



Footnotes

a Portions of this material were presented at California State University at Northridge, the University of Michigan and the University of San Francisco. Audiences on all three of these occasions were very helpful. I owe special thanks to Mitch Berman, Michael Bratman, Rob Kar and Al Mele for providing detailed comments on earlier drafts. Helpful comments were also provided by Larry Alexander, Steve Darwall, David Dolinko, Steve Finlay, Brandon Fitelson, Barbara Herman, Pamela Hieronymi, Alexander Hughes, Aaron James, John Ku, Herbert Morris, Jeff Paris, Doug Portmore, Peter Railton, Gideon Rosen, Andrew Sabl, Scott Shapiro, David Shoemaker, David Stump, Judith Thomson, Greg Trianosky, Manuel Vargas, Kendall Walton, Gary Watson, Donald Wilson, Jessica Wilson, Takashi Yagisawa, and Paul Zeitz. Thanks, finally, to Jules Coleman for his encouragement.