Preterintention "is the form of guilt which is done by committing an act with intention and producing a more serious consequence than the one pursued or accepted by the perpetrator through committing the act"; "this refers to when an act or an omission goes beyond the

intention An intention is a mental state in which a person commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ...

of the perpetrator who wanted to carry out a minor

event Event may refer to: Gatherings of people * Ceremony, an event of ritual significance, performed on a special occasion * Convention (meeting), a gathering of individuals engaged in some common interest * Event management, the organization of eve ...

": "given the agent A, the minor

B, the major

C –, the characteristic relation of preterintention can be described as follows: (1) A wants B. (2) A causes C. (3) C is greater than B. By the

transitive property In mathematics, a binary relation on a set is transitive if, for all elements , , in , whenever relates to and to , then also relates to . Every partial order and every equivalence relation is transitive. For example, less than and e ...

, if there is a psychic connection between A and B, a material connection between A and C, a value connection between B and C, then there must be a psychic connection between A and C, even if it is different from the direct one that exists between A and B".

Overview

This criminal progression 'beyond intention,' casuistically cosmopolitan, derives from

Latin Latin ( or ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...

'': Homicides that occur without the intention of those who caused them (''"Homicidii quae eveniunt praeter intentionem eorum, qui caussa fuerunt cur evenerint''")''.'' Preterintentional offence may also be referred to as result-conditioned or consequentially aggravated (

Claus Roxin Claus Roxin (15 May 1931 – 18 February 2025) was a German jurist. He was one of the most influential dogmatists of German penal law and gained national and international reputation in this field. He was awarded an honorary doctorate by 28 univ ...

). A common form of preterintentional offence is bodily harm resulting in death, in which the defendant intended to harm the victim but did not intend to kill. But it must be made clear right away that in

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

and civil law systems, the normative solutions, adopted to regulate

crime In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...

s ''praeter intentionem'', are only apparently faithful to the principle of '' nulla poena sine dolo o culpa'' (no punishment without

negligence Negligence ( Lat. ''negligentia'') is a failure to exercise appropriate care expected to be exercised in similar circumstances. Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a neg ...

/ imprudence/

incompetence Incompetence is the inability to perform expected tasks or duties. More generally, it is a term that indicates the Effectiveness, ineffectiveness of a Entity, subject or Systems engineering, system in relation to its universe. It can have several ...

): "The emptying of guilt in German jurisprudential practice, once denounced by a minority of guarantor

scholar A scholar is a person who is a researcher or has expertise in an academic discipline. A scholar can also be an academic, who works as a professor, teacher, or researcher at a university. An academic usually holds an advanced degree or a termina ...

s (see D. OEHLER, 1957, 515 ff.; J. BAUMANN, 1958, 227 ff.), is today recognized by the same promoters of the

legislative A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial powers ...

solution. H.J. HIRSCH himself, 1972, 73, complains that in crimes qualified by the outcome, guilt is made to derive from the sole fact of the commission of the basic

. (In the same sense see: K.H. GÖSSEL, 1976, 234; H.H. JESCHECK, 1988 A, 235):" the "§ 227 has taken on the role of a catch-all provision for cases in which it is not possible to prove the agent's

homicidal ''Homicidal'' is a 1961 American horror film, horror-thriller film produced and directed by William Castle, and starring Glenn Corbett, Patricia Breslin, Eugenie Leontovich, Alan Bunce and Joan Marshall, Jean Arless. The film follows a murderou ...

intent An intention is a mental state in which a person commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the '' ...

." En fact, "the objective responsibility - which still enchants and flatters judges - refers to a primordial conception of the ius terrible, based on the mere causal link .. never definitively buried, in the individual and collective conscience, speciallywhen it comes to crimes of blood": the "

Felony murder The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when someone is killed (regardless of intent to kill) in the commission of a dangerous or enumerated crime (called a felony in so ...

is a useful

doctrine Doctrine (from , meaning 'teaching, instruction') is a codification (law), codification of beliefs or a body of teacher, teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a ...

because it reaffirms to the surviving family of a felony-homicide victim the kinship the society as a whole feels with him by denouncing in the strongest

language Language is a structured system of communication that consists of grammar and vocabulary. It is the primary means by which humans convey meaning, both in spoken and signed language, signed forms, and may also be conveyed through writing syste ...

of the law the intentional crime that produced the death". As proof, "the study of '''lying models''' allows us to dispel a rather widespread cliché in the

Academy An academy (Attic Greek: Ἀκαδήμεια; Koine Greek Ἀκαδημία) is an institution of tertiary education. The name traces back to Plato's school of philosophy, founded approximately 386 BC at Akademia, a sanctuary of Athena, the go ...

and often proclaimed by aspiring reformers of codes, namely the idea that in the European legal space,

strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. Und ...

is a form of imputation that is being abandoned. Sailing under a false flag, it is more than ever in full expansion in contemporary law and, after having occupied the space of competence of guilt and having invaded the terrain of

, it is preparing to carry out its last mocking feat in

Italy Italy, officially the Italian Republic, is a country in Southern Europe, Southern and Western Europe, Western Europe. It consists of Italian Peninsula, a peninsula that extends into the Mediterranean Sea, with the Alps on its northern land b ...

too: the formal cancellation of the institution itself, accompanied by a triumphant proclamation of the advent of the era of the principle of guilt". "Some countries, such as – for example –

England England is a Countries of the United Kingdom, country that is part of the United Kingdom. It is located on the island of Great Britain, of which it covers about 62%, and List of islands of England, more than 100 smaller adjacent islands. It ...

, consider

an almost unavoidable phenomenon, to be accepted in homage to the practical needs of evidentiary simplification in the trial".

Civil law

Preterintentional offence as a distinct

legal Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a Socia ...

concept is found chiefly in penal systems of the

civil law tradition Civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's (1900). Unlike common law systems, which rel ...

. In some criminal systems, it arises from the legal principle under which a criminal intent created strict criminal liability for all resulting harm ''praeter intentionem''. Conversely, other

legal systems The contemporary national legal systems are generally based on one of four major legal traditions: civil law (legal system), civil law, common law, customary law, religious law or combinations of these. However, the legal system of each country i ...

have limited a defendant's

criminal liability In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencie ...

to situations where the defendant negligently (

Germany Germany, officially the Federal Republic of Germany, is a country in Central Europe. It lies between the Baltic Sea and the North Sea to the north and the Alps to the south. Its sixteen States of Germany, constituent states have a total popu ...

§ 18 Stgb;

Austria Austria, formally the Republic of Austria, is a landlocked country in Central Europe, lying in the Eastern Alps. It is a federation of nine Federal states of Austria, states, of which the capital Vienna is the List of largest cities in Aust ...

§ Stgb) or recklessly caused the preterintentional harm.

Common law

Penal systems of the

common law tradition Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

generally do not use the concept

etymological Etymology ( ) is the study of the origin and evolution of words—including their constituent units of sound and meaning—across time. In the 21st century a subfield within linguistics, etymology has become a more rigorously scientific study. ...

of preterintentionality; however, some of these law systems impose criminal penalties for ''praeter intentionem'' harms under imputation models such as

felony murder The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when someone is killed (regardless of intent to kill) in the commission of a dangerous or enumerated crime (called a felony in so ...

or as

involuntary manslaughter Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th ce ...

History

Strict criminal liability for preterintentional offence can be traced back to the doctrine of versari in re illicita':'' ''"''in its widest form it argues that anyone who decides to transgress the criminal law should be held liable for all the consequences that ensue, even if they are more serious than expected"'';'' and found application both in the criminal law of ancient Rome, and in the canon law of the Roman Church. In

Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (), to the (AD 529) ordered by Eastern Roman emperor Justinian I. Roman law also den ...

the perpetrator of a criminal act who unintentionally committed a more serious, but causally connected offence, could be punished for the crime for the preterintentional

; in fact, based on the written testimony of the jurist

Ulpian Ulpian (; ; 223 or 228) was a Roman jurist born in Tyre in Roman Syria (modern Lebanon). He moved to Rome and rose to become considered one of the great legal authorities of his time. He was one of the five jurists upon whom decisions were to ...

, the following questions had to be answered: "So the question must be decided: with what weapon did Epaphroditus strike? For if he drew a sword or struck with a weapon, what doubt is there that he struck with the intention of killing? If he struck with a hammer or a gourd, or, perhaps in a quarrel, struck with a weapon, but not with the intention of killing?" ("''E re itaque constituendum est: ecquo ferro percussit Epafroditus? Nam si gladium instrinxit aut telo percussit, quid dubium est, quin occidendi animo percusserit? Si clave percussit aut cucuma aut, cum forte rixaretur, ferro percussit, sed non occidendi mente")''; L. 1 paragr. 3 II. 48, 3; 1. 1 pr. C. q. 16: "If he proves that he did not strike a just man with the intention of killing, he will remit the penalty of murder and pronounce a sentence according to military discipline" ("''Si probaverit non occidendi animo justum a se percussum esse, remissa homicidii poena secundum disciplinam militarem sententiam proferet''."), see: Coll. 1, 6, 2-3, Verba rescripti

Hadrian Hadrian ( ; ; 24 January 76 – 10 July 138) was Roman emperor from 117 to 138. Hadrian was born in Italica, close to modern Seville in Spain, an Italic peoples, Italic settlement in Hispania Baetica; his branch of the Aelia gens, Aelia '' ...

Structural elements

Intentional conduct

A preterintentional offence requires an intentional act or omission in violation of criminal law. However, this intentional criminal conduct does not have to be successful: a mere intentional

attempt An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur.''Criminal Law - ...

at offence can be sufficient. The judge can condemn the

Agent Agent may refer to: Espionage, investigation, and law *, spies or intelligence officers * Law of agency, laws involving a person authorized to act on behalf of another ** Agent of record, a person with a contractual agreement with an insuran ...

for the preterintentional outcome caused by the intentional criminal conduct, even if only

ed. For example: A with a threatening attitude makes a sudden movement of his arms with a closed hand towards B, and the latter with a reflex movement avoids the blow but stumbles and, falling to the ground, hits his head and dies; the intended crime of assault against B is only

ed and not completed, but A is still responsible for the preterintentional homicide of B. A criminal

, in addition to being sufficient, is also indispensable for the agent to be convicted of a preterintentional offence: a conduct capable of causing death must logically be capable of injuring or beating. Conversely, an

ed preterintentional offence is logically impossible: if the preterintentional event does not occur, there is no preterintentional offence, and the perpetrator is responsible only for the intended lesser offence, because that is the only offence they committed. Because a subject cannot be punished twice for the same act, the penalty is determined taking into account both the offence intended and the preterintentional offence committed.

State of mind

Some countries, in order to adapt preterintention to the principle of subjective responsibility (no one can be punished criminally unless as a result of voluntary or at without caution), consider preterintention as a form of mixed

mental state A mental state, or a mental property, is a state of mind of a person. Mental states comprise a diverse class, including perception, pain/pleasure experience, belief, desire, intention, emotion, and memory. There is controversy concerning the exact ...

: the

supports the conduct of the lesser crime, and the

criminal negligence In criminal law, criminal negligence is an offence that involves a breach of an objective standard of behaviour expected of a defendant. It may be contrasted with strictly liable offences, which do not consider states of mind in determining c ...

supports the preterintentional consequence. In other penal systems (Switzerland, Sweden and Spain) it has even been decided to abolish the 'preterintentional

', replacing it with a

concurrence In Western jurisprudence, concurrence (also contemporaneity or simultaneity) is the apparent need to prove the simultaneous occurrence of both ("guilty action") and ("guilty mind"), to constitute a crime; except in crimes of strict liabilit ...

of two crimes: the voluntary crime (intended by the agent) and the involuntary unlawful consequence (not intended by the agent) causally linked; for example, the author of a preterintentional homicide (felony-murder) in these

countries A country is a distinct part of the Earth, world, such as a state (polity), state, nation, or other polity, political entity. When referring to a specific polity, the term "country" may refer to a sovereign state, List of states with limited r ...

is convicted for the voluntary crime of injury and for the involuntary crime of murder, through the institute of the formal

of crimes. In other countries, faithful to the

ontological Ontology is the philosophical study of being. It is traditionally understood as the subdiscipline of metaphysics focused on the most general features of reality. As one of the most fundamental concepts, being encompasses all of reality and every ...

nature of the action in ''praeter intentionem,'' ultra intentional crime is treated as a form of intentional crime aggravated by the unintentional event, which is attributed to the author even if theydid not want the event ''preterintentional'': thus introducing a form of objective responsibility.

By type

Preterintentional killing

The main example of this form of liability is preterintentional

killing Killing, Killings, or The Killing may refer to: Types of killing *-cide, a suffix that refers to types of killing (see List of types of killing), such as: ** Homicide, one human killing another *** Murder, unlawful killing of another human without ...

, which occurs when a person, with actions aimed at hitting or harming, unintentionally causes the death of a person: the agent will be liable for objective responsibility, or fault for the laws that require it, for the death event. For example: A argues with B and intentionally punches him, B falls to the ground and dies: A only wanted to punch him and absolutely did not want to kill him. In praeterintentional homicide the term "killing" is used and not that of

murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...

(as in intentional homicide): in order to underline the agent's unwillingness to kill. Preterintentional homicide can mature under certain factual circumstances, and therefore the penalty will be aggravated according to the type of circumstance ascertained by the judge: for example, the Italian legislator regulates the aggravating circumstances of preterintentional killing in art. 585 penal code, and the French one in art. 222-8 penal code.

Preterintentional abortion

Another hypothesis generally provided for by the law is preterintentional

abortion Abortion is the early termination of a pregnancy by removal or expulsion of an embryo or fetus. Abortions that occur without intervention are known as miscarriages or "spontaneous abortions", and occur in roughly 30–40% of all pregnan ...

, which occurs when the agent, with actions aimed at causing injury, causes, as an unintended effect, the interruption of pregnancy. For exmample, A argues with C and intentionally punches her, causing C to fall to the ground and miscarry. Tizio only wanted to punch C but did not want to cause the miscarriage of the child in her womb.

Crimes aggravated by the event

Then there are the preterintentional offences in the broad sense: intentional crimes aggravated by an unwanted harmful or dangerous event, which reproduce the typical preterintentional criminal progression: intentional unlawful conduct that produces a more serious involuntary offence. For example: A intentionally slaps his daughter D, and D suffers serious injuries so much so that she goes to the hospital; in the following days D dies from complications from infections on the injuries sustained.

By penal system

The concept of preterintentional offence is recognized by many countries: *In

French criminal law French criminal law is "the set of legal rules that govern the State's response to offenses and offenders". It is one of the branches of the Legal system, juridical system of the France, French Republic. The field of criminal law is defined as ...

, examples of preterintentional offense, , include fatal violence under Article 222-7 of the penal code. As in many countries, this form of homicide receives a sentence that is midway in severity between negligent and intentional killing. *In the

German criminal code ''Strafgesetzbuch'' (, literally "penal law book"), abbreviated to ''StGB'', is the German penal code. History In Germany the ''Strafgesetzbuch'' goes back to the Penal Code of the German Empire passed in the year 1871 on May 15 in Reichst ...

, preterintentional or "result-qualified" offenses, , include the crimes of bodily harm resulting in death (§ 227 Stgb). Under German law a preterintentional offense requires at least a negligent state of mind (§18 Stgb). *Under

Italian law The law of Italy is the system of law across the Italy, Italian Republic. The Italian legal system has a plurality of sources of production. These are arranged in a hierarchical scale, under which the rule of a lower source cannot conflict with ...

, Article 42 of the Italian Penal Code provides that preterintentional crimes cannot be punished unless expressly provided by law. The Code does provide for a punishment of ten to eighteen years for preterintentional homicide under Article 584 P.C. Preterintention is specified in Article 43 of the Code as a third culpable state of mind alongside negligence and intent, but preterintentional homicide is the only preterintentional crime defined in the Code. * In Dutch criminal law, preterintentional offence include lethal injury: see art. 302 s.2 DPC. * In Belgian Criminal Law: see Article 401 p.c., Deadly Violence. Other

legal system A legal system is a set of legal norms and institutions and processes by which those norms are applied, often within a particular jurisdiction or community. It may also be referred to as a legal order. The comparative study of legal systems is th ...

s that recognize preterintentional offenses: Colombia (Art. 24 penal code), Uruguay (Art. 18 penal code), Nuevo León (Art. 29 penal code), Ecuador (Art. 26 penal code), South Africa, Somalia (Art. 24 penal code) and Venezuela. As already mentioned above, some penal systems (Switzerland, Sweden and Spain) have eliminated the ''preterintentional''

from the

, regulating the illicit act that develops ''praeter intentionem'' with the institute of the

of two crimes: ''unintentional'' crimes, being an expression of the doctrine of , are incompatible with modern constitutional guarantees regarding subjective guilt. Countries of the

have, typically, followed a comparatively flexible approach, to specific cases of ''praeter intentionem'' offenses. In

United States criminal law The criminal law of the United States is a manifold system of laws and practices that connects crimes and consequences. In comparison, civil law addresses non-criminal disputes. The system varies considerably by jurisdiction, but conforms to the ...

, depending on the state, ultraintentional offenses may include

and

voluntary manslaughter Voluntary manslaughter is the killing of a human in which the offender acted in the heat of passion, a state that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot reasonably control thei ...

. In

English criminal law English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, i ...

the offenses beyond intention are, generally, punished where there is sufficient similarity between the intended crime and the result ultraintentional. This approach is justified based on the doctrines of "unforeseen mode", " mistaken object", and " transferred fault".

References

External links

The elements of crime at BritannicaDefinition of Preterintentional at OED
Criminal law legal terminology Civil law legal terminology