Transferred intent (or transferred malice in English law) is a doctrine used in both criminal law and tort law when the intention to harm one individual inadvertently causes a second person to be hurt instead. Under the law, the individual causing the harm will be seen as having "intended" the act by means of the "transferred intent" doctrine.

Discussion

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In the criminal law, transferred intent is sometimes explained by stating that the "intent follows the bullet." That is, the intent to kill person A with a bullet will apply even when the bullet kills the unintended victim, person B (see mens rea). It applies when the second "crime" is of the same basic nature as the first. Thus, if the bullet strikes an unintended victim, both offences represent personal violence. But, if the bullet misses and breaks a valuable Ming vase, damage to property is of a different class and the intent does not transfer.

This doctrine is not without controversy. The House of Lords in AG's Reference (No. 3 of 1994) (1997) 3 AER 936 reversed the Court of Appeal decision (reported at (1996) 2 WLR 412), holding that the doctrine of transferred malice could not apply to convict an accused of murder in English law when 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 121 days later. The child had been wounded in the original attack but the more substantial cause of death was her prematurity. It was argued that the foetus was part of the mother so that any intention to cause grievous bodily harm (GBH) to the mother was also an intent aimed at the foetus. 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that a wrongful act displayed a malevolence which could be attached to any adverse consequence, and this had long been out of date.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 foetus, and then from the foetus to the child when it was born. Then one would have to apply the fiction which converts an intention to commit GBH into the mens rea of murder. That was too much. But the accused could be convicted of manslaughter in English law.

It is interesting to compare the principle underlying the Unborn Victims of Violence Act 2004 in the United States which applies only to offenses over which the U.S. government has jurisdiction, namely crimes committed on Federal properties, against certain Federal officials and employees, and by members of the military, but treats the foetus as a separate person for the purposes of all levels of assault including murder and attempted murder: "Sec. 1841. Protection of unborn children

(a)(1) Whoever engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section.

(2)(A) Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child's mother.

2(B) An offense under this section does not require proof that--

(i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or

(ii) the defendant intended to cause the death of, or bodily injury to, the unborn child.

2(C) If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall instead of being punished under subparagraph (A), be punished as provided under sections 1111, 1112, and 1113 of this title for intentionally killing or attempting to kill a human being."

In tort law, there are generally five areas in which transferred intent is applicable: battery, assault, false imprisonment, trespass to land, and trespass to chattels.

See cases of Carnes v. Thompson, (1932) Supreme Court of Missouri. 48 S.W. 2d 903 and Bunyan v. Jordan (1937), 57 C.L.R. 1, 37 S.R.N.S.W. 119 for examples.

References

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• Dillof, Transferred Intent: An Inquiry into the Nature of Criminal Culpability, (1998) Vol 1, Buffalo Criminal Law Review, 501.
• Husak, Transferred Intent, (1965) Vol. 10 Notre Dame Journal of Law, Ethics and Public Policy, 65.

Tort law | Criminal law