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Preterintention

From Wikipedia, the free encyclopedia

Preterintention[1] "is the form of guilt which is done by committing[2] an act with intention and producing a more serious consequence[3] than the one pursued or accepted by the perpetrator through committing the act";[4] "this refers to when an act or an omission goes beyond the intention of the perpetrator who wanted to carry out a minor event":[5] "given the agent A, the minor event B, the major event C –, the characteristic relation of preterintention can be described as follows:[6] (1) A wants B. (2) A causes C. (3) C is greater than B.[7] By the transitive property, 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".[8]

This criminal progression 'beyond intention,'[9] casuistically cosmopolitan,[10] derives from Latin 'praeter intentionem':[11] Homicides that occur without the intention of those who caused them ("Homicidii quae eveniunt praeter intentionem eorum, qui caussa fuerunt cur evenerint").[12]

Preterintentional offence may also be referred to as result-conditioned[13] or consequentially aggravated (Claus Roxin).[14] 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.[15]

Preterintentional offence[16] as a distinct legal concept is found chiefly in penal systems of the civil law tradition.[17] 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.[18] Conversely, other legal systems[19] have limited a defendant's criminal liability to situations where the defendant negligently[20] (Germany § 18 Stgb;[21] Austria § Stgb[22]) or recklessly caused the preterintentional harm.[23]

Penal systems of the common law tradition[24] generally do not use the concept etymological of preterintentionality;[25] however, some of these law systems impose criminal penalties for praeter intentionem harms under imputation models such as felony murder[26] or as involuntary manslaughter.[27]

But it must be made clear right away that in common law and civil law systems, the normative solutions, adopted to regulate crimes praeter intentionem, are only apparently faithful to the principle of nulla poena sine dolo o culpa (no punishment without negligence/imprudence/incompetence or intention): "The emptying of guilt in German jurisprudential practice, once denounced by a minority of guarantor scholars (see D. OEHLER, 1957, 515 ff.; J. BAUMANN, 1958, 227 ff.), is today recognized by the same promoters of the legislative 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 crime. (In the same sense see: K.H. GÖSSEL, 1976, 234; H.H. JESCHECK, 1988 A, 235):"[28] 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 intent."[29] 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, [especially] when it comes to crimes of blood":[30] the "Felony murder is a useful doctrine 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 of the law the intentional crime that produced the death".[31]

As proof, "the study of 'lying models' allows us to dispel a rather widespread cliché in the Academy and often proclaimed by aspiring reformers of codes, namely the idea that in the European legal space, strict liability 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 intent, it is preparing to carry out its last mocking feat in Italy too: the formal cancellation of the institution itself, accompanied by a triumphant proclamation of the advent of the era of the principle of guilt".[32] "Some countries, such as – for example – England, consider strict liability an almost unavoidable phenomenon, to be accepted in homage to the practical needs of evidentiary simplification in the trial".[33]

History

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Strict criminal liability[34] for preterintentional offence[35] can be traced back to the doctrine of 'versari in re illicita':[36] "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";[37] and found application both in the criminal law of ancient Rome,[38] and in the canon law of the Roman Church.[39]

In Roman law[40] 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 crime;[41] in fact, based on the written testimony of the jurist Ulpian, 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."),[42] see: Coll. 1, 6, 2-3, Verba rescripti Hadriani.[43]

Structural elements

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Intentional conduct

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A preterintentional offence requires an intentional act or omission[44] in violation of criminal law.[45] However, this intentional criminal conduct does not have to be successful: a mere intentional attempt at offence can be sufficient.[46] The judge can condemn the Agent for the preterintentional outcome caused by the intentional criminal conduct, even if only attempted.[47] 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 attempted and not completed, but A is still responsible for the preterintentional homicide of B.[48] A criminal attempt, in addition to being sufficient,[49] 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.[50]

Conversely, an attempted preterintentional offence is logically impossible:[51] 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.[52]

Because a subject cannot be punished twice for the same act,[53] the penalty is determined taking into account both the offence intended and the preterintentional offence committed.[54]

State of mind

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Some countries,[55] 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),[56] consider preterintention as a form of mixed mental state:[57] the intent supports the conduct of the lesser crime, and the criminal negligence supports the preterintentional consequence.[58]

In other penal systems (Switzerland, Sweden and Spain)[59] it has even been decided to abolish the 'preterintentional crime',[60] replacing it with a concurrence of two crimes: the voluntary crime (intended by the agent) and the involuntary unlawful consequence (not intended by the agent) causally linked;[61] for example, the author of a preterintentional homicide (felony-murder) in these countries is convicted for the voluntary crime of injury and for the involuntary crime of murder, through the institute of the formal concurrence of crimes.[62]

In other countries, faithful to the ontological nature[63] of the action in praeter intentionem,[64] ultra intentional crime is treated as a form of intentional crime[65] aggravated by the unintentional event, which is attributed to the author even if theydid not want the event preterintentional:[66] thus introducing a form of objective responsibility.[67]

By type

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Preterintentional killing

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The main example of this form of liability is preterintentional killing,[68] which occurs when a person, with actions aimed at hitting or harming, unintentionally causes the death of a person:[69] the agent will be liable for objective responsibility, or fault for the laws that require it, for the death event.[70] 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.[71]

In praeterintentional homicide the term "killing" is used and not that of murder (as in intentional homicide): in order to underline the agent's unwillingness to kill.[72]

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[73] legislator regulates the aggravating circumstances of preterintentional killing in art. 585 penal code,[74] and the French[75] one in art. 222-8 penal code.[76]

Preterintentional abortion

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Another hypothesis generally provided for by the law is preterintentional abortion,[77] which occurs when the agent, with actions aimed at causing injury, causes, as an unintended effect, the interruption of pregnancy.[78] 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

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Then there are the preterintentional offences in the broad sense:[79] intentional crimes aggravated by an unwanted harmful or dangerous event,[80] which reproduce the typical preterintentional criminal progression:[81] intentional unlawful conduct that produces a more serious involuntary offence.[82] 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.[83]

By penal system

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The concept of preterintentional offence is recognized by many countries:[84]

  • In French criminal law, examples of preterintentional offense, dol dépassé, include fatal violence under Article 222-7 of the penal code.[85][86] As in many countries, this form of homicide receives a sentence that is midway in severity between negligent and intentional killing.[87]
  • In the German criminal code, preterintentional or "result-qualified" offenses, erfolgsqualifizierte Delikte, include the crimes of bodily harm resulting in death (§ 227 Stgb[88]).[89] Under German law a preterintentional offense requires at least a negligent state of mind (§18 Stgb[90]).[91]
  • Under Italian law, Article 42 of the Italian Penal Code provides that preterintentional crimes cannot be punished unless expressly provided by law.[92] The Code does provide for a punishment of ten to eighteen years for preterintentional homicide under Article 584 P.C.[93][94] Preterintention is specified in Article 43 of the Code as a third culpable state of mind alongside negligence and intent,[95] but preterintentional homicide is the only preterintentional crime defined in the Code.[96][97]
  • In Dutch criminal law, preterintentional offence include lethal injury: see art. 302 s.2 DPC.[98]
  • In Belgian Criminal Law: see Article 401 p.c., Deadly Violence.[99]

Other legal systems that recognize preterintentional offenses: Colombia (Art. 24 penal code),[100] Uruguay (Art. 18 penal code),[101] Nuevo León (Art. 29 penal code),[102] Ecuador (Art. 26 penal code),[103] South Africa,[104] Somalia (Art. 24 penal code)[105] and Venezuela.[106]

As already mentioned above, some penal systems (Switzerland, Sweden and Spain) have eliminated the preterintentional crime from the legal system, regulating the illicit act that develops praeter intentionem with the institute of the concurrence of two crimes:[107] unintentional crimes, being an expression of the doctrine of versari in re illicita, are incompatible with modern constitutional guarantees regarding subjective guilt.[108]

Countries of the common law tradition have, typically, followed a comparatively flexible approach,[109] to specific cases of praeter intentionem offenses.[110] In United States criminal law, depending on the state, ultraintentional offenses may include felony murder[111] and voluntary manslaughter.[112] In English criminal law the offenses beyond intention are, generally, punished where there is sufficient similarity between the intended crime and the result ultraintentional.[113] This approach is justified based on the doctrines of "unforeseen mode", "mistaken object", and "transferred fault".[114]

References

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  1. ^ Farmer, Andrew; Faure, Michael; Vagliasindi, Grazia Maria (2017-12-14). Environmental Crime in Europe. Bloomsbury Publishing. ISBN 978-1-5099-1399-2. A felony: [...] is preterintentional, or beyond the intention, when the act or omission is followed by a harmful or dangerous event more serious than that desired by the actor;
  2. ^ Cavanaugh, T. A. (2006-08-24). Double-Effect Reasoning: Doing Good and Avoiding Evil. OUP Oxford. ISBN 978-0-19-153409-6. Thomas proposes that for the ethical assessment of an act, three aspects require attention: what the agent does (the deed or object), the circumstances in which the agent does it (the when, where, how, to whom, and with what), and the end or reason for which the agent acts (1-11 q.18 a.1). Of the aspects of an action that make up its integral goodness or its disintegrated badness, the intention of the end is a necessary, but not a sufficient, condition for a complete evaluation of the act.»
  3. ^ Černý, David (2020-03-20). The Principle of Double Effect: A History and Philosophical Defense. Routledge. ISBN 978-1-000-06186-4. Praeter intentionem are the circumstances of the action that do not immediately – as fontes moralitatis – enter the action's moral characterization.
  4. ^ Pasat, Octavian Pasat. "The Essential Features of the Criminal Offence a Comparative Study the Republic of Moldova and Romania". [...] Thus, the oblique intent (praeterintation) is a mixed form of guilt which includes intention and guilt. Oblique intent 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, a result that is imputed to him in the form of guilt, because he did not see it although he had to and could foresee it. As a characteristic of the committed crimes there is the circumstance that the perpetrator commits an act pursuing a certain result, but whose result is amplified becoming more serious and realizing the content of another crime (for example blows or injuries causing death [...]
  5. ^ Amato, Astolfo Di; Fucito, Federica (2020-10-20). "Chapter V. <<Unintentional Acts.>>". Criminal Law in Italy. Kluwer Law International B.V. ISBN 978-94-035-2444-3. Article 43 PC provides a third moral element: preterintenzione or unintentional act. This refers to when an act or an omission goes beyond the intention of the perpetrator who wanted to carry out a minor event.
    Under the Italian PC, there is only one form of crime involving an unintentional act: involuntary manslaughter (omicidio preterintenzionale) (Article 584 PC). The Code states that 'whoever provokes the death of a man through acts aimed at beating him or causing personal injuries to him' is subject to punishment. Here, the offender's intention is to batter or cause personal injuries, not death. However, the consequence of the conduct is ascribed to the perpetrator even though he did not want to cause the death.
    It is important to stress that an unintentional act cannot be considered as a tertium genus (i.e., third possibility) intermediate between fault and intention because an event can be wanted or unwanted and it could not be otherwise: tertium non datur (i.e., there is no third possibility in the middle).
    Some doctrines consider preterintenzione as a form of intention mixed with fault because the intention covers the less grave event and the fault covers the heavier event, while the other doctrine considers it as a form of crime aggravated by the event which is charged to the perpetrator even if he did not want the event, introducing in this way a form of strict liability.
  6. ^ Salazar, Luis. "La preterintencion y sus elementos".
  7. ^ Spitzmiller, Rebecca (2011). Selected Areas of Italian Tort Law: Cases and Materials in a Comparative Perspective. © Editrice il Sirente. ISBN 978-88-87847-37-6. A crime: [...] Shall be preterintentional, i.e., in excess of intention, when the act or omission is followed by a harmful or dangerous event more serious than that desired by the actor;
  8. ^ Bellomo, Francesco. "Short system of criminal law".
  9. ^ Stone, Jon R. (2003-09-02). More Latin for the Illiterati: A Guide to Medical, Legal and Religious Latin. Routledge. ISBN 978-1-135-96195-4.
  10. ^ Ambos, Kai. "Preterintention" (PDF).
  11. ^ MacDonald, Scott; Stump, Eleonore (2018-09-05). Aquinas's Moral Theory: Essays in Honor of Norman Kretzmann. Cornell University Press. ISBN 978-1-5017-2836-5. [...] the ordinary English meanings of 'intend' and 'beyond the agent's in-tention' would translate them quite satisfactorily. The scholar who seems to have given this question the most careful examination is Joseph M. Boyle Jr. In this section I am guided by his discussion.
    Let us ask, first, whether Saint Thomas counts the means an agent chooses to achieve a certain end as something within the agent's inten-tion (in intentione) or something beyond the agent's intention (praeter intentionem). Boyle discusses this question at some length. He concludes that according to Saint Thomas the agent "does not intend the means as such." However, Boyle adds, "the means are intimately connected with the intended ends in such a way that one's chosen means cannot be praeter intentionem." So, though not intended as such, the means, ac-cording to Boyle's reading, are still not beyond the intention.
    What about the merely foreseen effect of one's action? Can a foreseen effect be outside one's intention (praeter intentionem)? Here Boyle notes that, following Aristotle, Saint Thomas distinguishes between an effect that is "always or for the most part" joined with an action of a certain kind and one that is only "in a few cases and rarely" joined with the ac-tion. Something always or for the most part conjoined with a certain sort of action presumably counts as a foreseen or expected consequence. Boyle adduces one passage (In Ph 2.5, from the commentary on Aris-totle's Physics) in which Saint Thomas seems to be counting foreseeable consequences as something within the agent's intention in such a way that they could not be praeter intentionem. "For what always or fre-quently is joined to an effect falls under the same intention," Saint Thomas writes in that passage. He goes on: "It is foolish to say that someone intends something and does not will that which is frequently or always joined to it."
    Yet in the end Boyle decides that, according to Saint Thomas, even what is always or frequently joined to an intended effect may be beyond the intention of the agent. One important text upon which Boyle bases his interpretation is this one from Saint Thomas's De malo: It should be said that sometimes an accidental effect is joined to it in few cases and rarely [ut in paucioribus et raro); and then the agent need not in-tend in any way the accidental effect while he intends the effect per se. But sometimes an accident of this type is attached either always or for the most part to the effect which is principally intended; and then the accident can-not be separated from the intention of the agent. If therefore, something evil is joined only infrequently to the good which is intended, it is possible to be excused from sin; for example if someone cutting down a tree in a for-est where people rarely pass, kills a person by cutting down the tree. But if the evil is joined either always or for the most part to the good which is in-tended per se, one is not excused from sin although he does not per se intend this evil.
  12. ^ "De iure criminali. Libri duo& da CREMANI LUIGI.: (1779) | Studio Bibliografico Benacense". www.abebooks.it (in Italian). Retrieved 2025-05-03.
  13. ^ Rodríguez Mourullo, Gonzalo (1970). "La atenuante de preterintencionalidad". Anuario de Derecho Penal y Ciencias Penales. 23 (3): 555–580. ISSN 0210-3001.
  14. ^ Roxin, Claus. "Criminal Law" (PDF). img.lpderecho.pe. p. 330. ["Offences qualified by result are intentional offences subject to a special penal framework, the commission of which brings about a more serious subsequent result. A classic example is provided by § 227 I: "If the injuries have caused the death of the injured person, a prison sentence of not less than three years shall be imposed".]
  15. ^ AGELLON, Atty DEOGENES NAMBAYAN (2021-03-14). Criminal Law Case Digests: And Review Materials on the Revised Penal Code and Other Philippine Penal Laws (1904-2019). Xlibris Corporation. ISBN 978-1-6641-4710-2. The injury is on the intended victim but the resulting consequence is so grave a wrong than that intended. This is called PRAETER INTENTIONEM. Best example - is the act of a husband who slapped his wife causing her to fall on the ground, hitting her head on a hard pavement rendering her unconscious and thereafter died. The husband is liable for parricide. His wrongful intent was only to cause injury but the wrongful act done was greater - the killing of his wife. Praeter intentionem lowers criminal liability.
  16. ^ Libardo, A.; Palacios, R. "La etiología de la culpabilidad: el dolo, la preterintención, las contravenciones".
  17. ^ LA PRETERINTENCIONALIDAD. PLANTEAMIENTO, DESARROLLO Y ESTADO ACTUAL. TENDENCIAS RESTRICTIVAS EN FAVOR DE LA PENETRACION EN EL EL - JAIME MIGUEL PERIS RIERA - 9788480021357.
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  21. ^ "§ 18 StGB - Einzelnorm". www.gesetze-im-internet.de. Retrieved 2025-03-09.
  22. ^ Unternehmensberatung, ADVOKAT. "§ 4 StGB (Strafgesetzbuch), Keine Strafe ohne Schuld - JUSLINE Österreich". www.jusline.at (in German). Retrieved 2025-03-09.
  23. ^ Reed, Alan; Bohlander, Michael (2022-08-22). Fault in Criminal Law: A Research Companion. Taylor & Francis. ISBN 978-1-000-63052-7.
  24. ^ Fletcher, George (1981-01-01). "Reflections on Felony-Murder". Sw. U. L. Rev. 12: 413.
  25. ^ Ashworth, Andrew; Horder, Jeremy (2013-05-16). Principles of Criminal Law. OUP Oxford. ISBN 978-0-19-967268-4.
  26. ^ Cadoppi, Alberto (1992). Mens rea (in Italian). Utet. If John commits a felony, that is, a serious crime, and Jim's death results from this, John is responsible for the most serious form of murder even if Jim's death was neither foreseen nor foreseeable by him. It is a bit like our preterintentional homicide, but the penalties for felony murder in common law countries are much more severe.
  27. ^ Amato, Astolfo Di; Fucito, Federica (2020-10-20). Criminal Law in Italy. Kluwer Law International B.V. ISBN 978-94-035-2444-3. «Under the Italian PC, there is only one form of crime involving an unintentional act: involuntary manslaughter (omicidio preterintenzionale) (Article 584 PC).»
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  33. ^ Licci, Giorgio (2014-03-14). Model penal law (in Italian). Giappichelli. ISBN 978-88-348-4731-2.
  34. ^ Varela, Lorena (2012). Strict-Liability como forma de imputación jurídico-penal (PDF) (in Spanish). University Pompeu Fabra.
  35. ^ ""Equitipicidad, culpabilidad, preterintención y subrogados penales"".
  36. ^ ""STIG IUUL Forelæsninger over Hovedlinier i Europæisk Retsudvikling fra Romerretten til Nutiden"" (PDF).
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  39. ^ Myrcha, Marianus-Alphonsus. "De lege ferenda in iure poenali canonico" (PDF).
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  54. ^ Ronco, Mauro (2017-08-30). Scritti patavini: Due tomi indivisibili (in Italian). Giappichelli. ISBN 978-88-921-0693-2.
  55. ^ Dubber, Markus D.; Hörnle, Tatjana (2014-11-27). The Oxford Handbook of Criminal Law. OUP Oxford. ISBN 978-0-19-165459-6.
  56. ^ "Twelfth International Congress of Penal Law (Hamburg, September 16–22, 1979)". Revue internationale de droit pénal (in French). 86 (1): 99–110. 2015. doi:10.3917/ridp.861.0099. ISSN 0223-5404. l. Increasing attention should be paid to the causes and conditions that facilitate the commission of negligent crimes in the contemporary world. Particular importance is attached to the study of the conditions surrounding the commission of reckless crimes in the transport sector, particularly in road traffic, as well as in other areas of social life where acts of recklessness pose a greater danger to essential social and individual values, in particular safety at work, the use of new types of energy and materials and environmental protection. 2. Action against criminogenic factors that contribute to the commission of negligent crimes, as well as public education aimed at encouraging a sense of duty and adherence to and appreciation of standards of care, can be considered the primary strategy in the prevention of negligent crimes. 3. (a) The decision whether a negligent act should be criminalised or decriminalised should take into account all aspects of the impact of such a decision on economic, social and other factors in the concrete context of social developments. (b) Cases of extremely socially negligent conduct, which result in damage to social and individual values and well-being, should be considered as breaches of criminal law. (c) Negligent acts of lesser gravity should be treated as administrative or civil sanctions. Social and educational measures should be widely used in relation to the prevention and deterrence of such less serious negligent acts. 4. (a) Criminal liability for negligent acts must always be in accordance with the principle of culpability with its subjective element under previous legislation based on conduct that breaches the standards of care in view of the seriousness of the harm caused, foreseen or foreseeable, as well as (where provided for by law) the degree of dangerousness of such breach. (b) No person should be punished because of the unintended consequences of his act or, if at all, only if he foresaw or could have foreseen such consequences. 5. Sanctions for negligent offences should take into account the alternative forms of sanction available, as well as the characteristics of the offender. Generally, penalties other than imprisonment should be used, and when a custodial sentence is imposed, semi-detention or similar measures should be used. Exemption from punishment but a requirement of community work or education could also be used. 6. Scientific research in the field of negligent acts should be conducted on an interdisciplinary basis, with particular attention to the study of its causes and the conditions in which it occurs, the typology and classification of offenders and the development of adequate and multiple preventive measures. The genesis of the behavior of criminal negligent conduct should be studied using data from sociology, criminology, psychology and other social sciences. In the future, it would be desirable to develop international collaboration and coordination of efforts of researchers and experts from different countries in the field of prevention and reduction of negligent crime.
  57. ^ Lagier, Daniel González (2013-03-09). The Paradoxes of Action: (Human Action, Law and Philosophy). Springer Science & Business Media. ISBN 978-94-017-0205-8. The most radical expression of objectivism can be found in Holmes, who, asserted that the law did not consider, and need not consider, in administering punishment what in fact the accused intended but that it imputed to him the intention that an 'ordi-nary man', equipped with ordinary knowledge, would be taken to have had in acting as the accused did". The general rule that has imposed itself in Anglo-Saxon - as well as in Continental criminal law is, quite to the contrary, the requirement of intent and foresight of consequences, but that general rule must be qualified in many important cases (for example, concerning the punishment of preterintentional manslaughter).
  58. ^ Maiwald, Manfred (2009). Einführung in das italienische Strafrecht und Strafprozessrecht (in German). Peter Lang. ISBN 978-3-631-58451-4.
  59. ^ Masellas, Roger. "Preterintencionalidad y cualificación por el resultado – InDret" (in Spanish). Retrieved 2025-05-03.
  60. ^ Reed, Alan; Bohlander, Michael (2022-08-22). Fault in Criminal Law: A Research Companion. Taylor & Francis. ISBN 978-1-000-63052-7.
  61. ^ Garvey, Stephen P. (2020-05-25). Guilty Acts, Guilty Minds. Oxford University Press. ISBN 978-0-19-092433-1.
  62. ^ Reed, Alan; Bohlander, Michael (2018-10-03). Homicide in Criminal Law: A Research Companion. Routledge. ISBN 978-1-351-01629-2.
  63. ^ Crump, David (1985). In Defense of the Felony Murder Doctrine. South Texas College of Law.
  64. ^ Weinreb, Lloyd (1986-07-01). "Desert, Punishment, and Criminal Responsibility". Law and Contemporary Problems. 49 (3): 47–80. doi:10.2307/1191625. ISSN 0023-9186. JSTOR 1191625. It is a structural element of the human experience as we know it.
  65. ^ Zamboni, Mauro (2018-11-01). Teoría evolutiva y positivismo jurídico : un matrimonio posible (in Spanish). Universidad Externado. ISBN 978-958-790-096-5.
  66. ^ Evandro Agazzi: Right, Wrong and Science: The Ethical Dimensions of the Techno-Scientific Enterprise. BRILL. 2016-09-12. ISBN 978-90-04-33322-2. When it is said, therefore, that the morality of an action must first be evaluated on the basis of its ends, that is essentially to say that it be evaluated on the basis of the agent's intentions, assuming the agent has actually willed the end toward which the action intrinsically leads. This action may have consequences the agent did not intend, but for which at least in many cases he is held responsible. Legal systems sometimes employ the notions of crimes that are "preterintentional" or due to negligence: the punishment (though less severe than for intentional or premeditated crimes) is fitted to the consequences even those not willed by the subject. Remaining within the bounds of ethical discourse, we can see in this fact the insufficiency of a criterion of moral judgment based solely on intentions, often conveyed in the maxim, "It is the intention that counts." This does not suffice because intention does not of itself suffice to justify action morally. In other words, just as "the end does not justify the means," so "the end does not justify the consequences." Hence it is clear that consequences have a genuine moral relevance." Traditional ethics was not unaware of the problem of consequences. It considered an action morally wrong if it had a foreseeable negative effect, in accord with the principle that the wrong should not only not be pursued, but also strictly avoided. Thus, actions with foreseeable negative consequences must be rejected. This is evident. A serious problem arises, however, when the action is not in itself morally indifferent, but has a positive end - perhaps highly positive, or in accord with duty while negative consequences are also foreseen.
  67. ^ Asworth, Andrew (2013). "Principles of Criminal Law" (PDF). pp. 25 of 39. John Gardner originally argued that if the criminal law puts D on notice that this will be the consequence, the requirements of the rule of law are fulfilled
  68. ^ Pin, Xavier (2023-10-12). Droit pénal général 2024 15ed (in French). Groupe Lefebvre Dalloz. ISBN 978-2-247-22928-4.
  69. ^ Cadoppi, Alberto; Canestrari, Stefano; Manna, Adelmo; Papa, Michele (2022-06-07). Diritto penale (in Italian). UTET Giuridica. ISBN 978-88-598-2526-5.
  70. ^ Lambinet (dir.), France; Collectif (2017-08-23). L'élément moral en droit: Une vision transversale (in French). Anthemis. ISBN 978-2-8072-0104-0.
  71. ^ Trapani, Mario (2022-12-30). Il reato e le sue conseguenze. Punibilità, pena, punizione in un sistema criminale integrale e integrato (in Italian). Roma TrE-Press. ISBN 979-12-5977-141-4.
  72. ^ Lucchini, Luigi (1896). Studi illustrativi del Codice penale italiano (in Italian). Unione Tipografico-Editrice Torinese.
  73. ^ Ramacci, Fabrizio; Spangher, Giorgio (2010). Il sistema della sicurezza pubblica (in Italian). Giuffrè Editore. ISBN 978-88-14-15787-5.
  74. ^ "Art. 585 codice penale - Circostanze aggravanti". Brocardi.it (in Italian). Retrieved 2024-09-01.
  75. ^ Elliott, Catherine (2001-05-01). French Criminal Law. Routledge. ISBN 978-1-135-99314-6.
  76. ^ "Article 222-8 - Code pénal - Légifrance". www.legifrance.gouv.fr. Retrieved 2024-08-24.
  77. ^ Valiante, Paolo (2019-07-05). "L'aborto preterintenzionale: una contraddizione del sistema" [Preterintentional abortion : a contradiction of the system]. L-JUS (in Italian). VII (1). Centro Studi Rosario Livatino. ISSN 2611-5476. Retrieved 2024-09-15.
  78. ^ Villalba, Jaime Lombana (2007). Derecho penal y responsabilidad médica (in Spanish). Universidad del Rosario. ISBN 978-958-8235-74-5.
  79. ^ Ramacci, Fabrizio (2016-11-25). I delitti di omicidio (in Italian). Giappichelli. ISBN 978-88-921-0521-8.
  80. ^ "Crimes aggravated by the event" (PDF).
  81. ^ Trapani, Mario. "La divergenza tra il "voluto" e il "realizzazione"" (PDF).
  82. ^ Hoffmann-Holland, Klaus (2023-08-14). Strafrecht Allgemeiner Teil (in German). UTB. ISBN 978-3-8252-6114-6.
  83. ^ Bell, John; Boyron, Sophie; Whittaker, Simon (2008). Principles of French Law. Oxford University Press. ISBN 978-0-19-954138-6.
  84. ^ Reed, Alan; Bohlander, Michael (2022-08-22). Fault in Criminal Law: A Research Companion. Taylor & Francis. ISBN 978-1-000-63052-7.
  85. ^ République française; Secrétariat général du gouvernement (19 October 2022). "Légifrance Le service public de la diffusion du droit" [The public service for dissemination of the law]. Légifrance. Direction de l'information légale et administrative. CP art. 222-7. ISSN 2270-8987. OCLC 867599055.
  86. ^ Canin, Patrick (2024-01-17). Fondamentaux - Droit pénal général 2024 (in French). Hachette Éducation. ISBN 978-2-01-723570-5.
  87. ^ Ambos, Kai (2006). "Preterintencionalidad y cualificación por el resultado: reflexiones desde el Derecho comparado" [Preterintentionality and qualification by result: reflections from comparative law] (PDF). Indret: Revista para el análisis del derecho (in Spanish). 3 (365): 2–3 n.10.
  88. ^ "§ 227 StGB - Einzelnorm". www.gesetze-im-internet.de. Retrieved 2025-03-04.
  89. ^ Ambos, Kai; Bock, Stefanie (2018-10-03). "13". Homicide in Criminal Law: A Research Companion. Routledge. ISBN 978-1-351-01629-2.
  90. ^ "§ 18 StGB - Einzelnorm". www.gesetze-im-internet.de. Retrieved 2025-03-04.
  91. ^ Ambos, Kai; Bock, Stefanie (2018-10-03). "13". Homicide in Criminal Law: A Research Companion [Germany]. Routledge. ISBN 978-1-351-01629-2.
  92. ^ Dünkel, Frieder (2010). Kriminalität, Kriminalpolitik, strafrechtliche Sanktionspraxis und Gefangenenraten im europäischen Vergleich (in German). BoD – Books on Demand. ISBN 978-3-936999-76-1.
  93. ^ Watkin, Thomas Glyn (2018-12-20). The Italian Legal Tradition. Routledge. ISBN 978-0-429-76053-2.
  94. ^ Amato, Astolfo Di; Fucito, Federica (2020-10-20). Criminal Law in Italy. Kluwer Law International B.V. ISBN 978-94-035-2444-3. Under the Italian PC, there is only one form of crime involving an unintentional act: involuntary manslaughter (omicidio preterintenzionale) (Article 584 PC). The Code states that 'whoever provokes the death of a man through acts aimed at beating him or causing personal injuries to him' is subject to punishment. Here, the offender's intention is to batter or cause personal injuries, not death. However, the consequence of the conduct is ascribed to the perpetrator even though he did not want to cause the death
  95. ^ Farmer, Andrew; Faure, Michael; Vagliasindi, Grazia Maria (2017-12-14). Environmental Crime in Europe. Bloomsbury Publishing. ISBN 978-1-5099-1398-5. Article 43 PC establishes that: A felony: is preterintentional, or beyond the intention, when the act or omission is followed by a harmful or dangerous event more serious than that desired by the actor;
  96. ^ Amato, Astolfo Di; Fucito, Federica (2020-10-20). Criminal Law in Italy. Kluwer Law International B.V. ISBN 978-94-035-2444-3.
  97. ^ Lauterpacht, Elihu; Greenwood, C. J.; Oppenheimer, A. G. (2003-03-27). International Law Reports. Cambridge University Press. ISBN 978-0-521-82586-3.
  98. ^ Reed, Alan; Bohlander, Michael (2018-10-03). Homicide in Criminal Law: A Research Companion. Routledge. ISBN 978-1-351-01629-2. Dutch criminal law knows several 'result-qualified offences', in which the death of another person is an aggravating circumstance if such death can – in law – be seen as a result of the offence in question. Examples can be found (among many more) in [...] art. 302 s.2 DPC (grievous bodily harm) [...] . In case of a result-qualified offence, causation is assessed in two steps. With the offence of art. 300 s.3 DPC in mind as an example, first a causal relationship has to be established between the defendant's conduct and the victim's bodily harm. The second step is whether there is causation between the bodily harm and the victim's death. It should be noted that Dutch criminal law does not require proof of negligence in this second step. Cases like these can give a good insight into the way causation is established in Dutch criminal law. An example is a case in which the Court of Appeal could prove that the defendant had caused bodily harm (art. 300 DPC), but could not find evidence that showed that the victim had died as a result of the harm.54 In carrying out a theft, the defendant had suddenly clasped an arm around the neck of the victim and he had also bitten him. The victim died shortly after. According to the Court of Appeal, no causal relationship could be established between the inflicted bodily harm and the death that followed. The Court of Appeal reasoned that the victim had been 46 or 49 years, and had suffered from heart diseases, while at the time of the commission of the offence, the victim had used cocaine. The violent conduct in itself could not have caused the death of the victim, or have increased the chance of dying, according to the Court of Appeal concluded that there had been a real opportunity that the victim would have died without the bodily harm. The Supreme Court, however, ruled that Court's reasoning of its decision that the death could not reasonably be attributed to the defendant had been incomprehensible, with regard to the Court of Appeal's findings concerning the victim's predisposition. The victim's predisposition seemingly did not put a bar to the attribution of the result of the victim's conduct to the defendant.
  99. ^ Body-Gendrot, Sophie; Spierenburg, Pieter (2010-07-10). Violence in Europe: Historical and Contemporary Perspectives. Springer Science & Business Media. ISBN 978-0-387-09705-3.
  100. ^ Rincones, José Martínez (2022-06-08). El homicidio preterintencional (in Spanish). Temis. ISBN 978-958-35-1614-6.
  101. ^ "DERECHO PENAL URUGUAYO | 3ra Edición Actualizada. Con las normas penales contenidas en la LUC". Thomson Reuters Uruguay (in Spanish). Archived from the original on 2024-10-06. Retrieved 2025-03-09.
  102. ^ "CÓDIGO PENAL PARA EL ESTADO DE NUEVO LEÓN". H. Congreso del Estado de Nuevo León (in Spanish). Retrieved 2025-03-09.
  103. ^ "Código Orgánico Integral Penal, COIP". vLex (in Spanish). Retrieved 2025-03-09.
  104. ^ Hoctor, Shannon Vaughn (2017-06-20). Criminal Law in South Africa. Kluwer Law International B.V. ISBN 978-90-411-9490-9.
  105. ^ "Somalia: Penal Code". Refworld. Retrieved 2025-03-09.
  106. ^ Ramon, Rafael. "La Preterintención En La Legislación Penal Venezolana" [Preterintention In Venezuelan Penal Legislation] (in Spanish).
  107. ^ Reed, Alan; Bohlander, Michael (2018-10-03). Homicide in Criminal Law: A Research Companion. Routledge. ISBN 978-1-351-01629-2.
  108. ^ Pradel, Jean (2016-09-14). Droit pénal comparé. 4e éd (in French). Editis - Interforum. ISBN 978-2-247-15085-4.
  109. ^ Reed, Alan; Bohlander, Michael (2018-10-03). Homicide in Criminal Law: A Research Companion. Routledge. ISBN 978-1-351-01629-2.
  110. ^ Reed, Alan; Bohlander, Michael (2022-08-22). Fault in Criminal Law: A Research Companion. Taylor & Francis. ISBN 978-1-000-63052-7.
  111. ^ Varela, Lorena (2012). "Strict-Liability como forma de imputación jurídico-penal". Indret: Revista para el Análisis del Derecho (3): 19–26. ISSN 1698-739X. La forma más patente de impure strict liability en relación con el resultado es el homicidio preterintencional (felony murder). En este caso, el sujeto responde, aun cuando no se haya representado o no haya advertido la causación de la muerte en la comisión del delite principal, como podrían ser unas lesiones fisicas. [...] A diferencia de la legislación de algunas Estados, en el marco del MPC, la regla del homicidio preterintencional (felony-murder rule) se ha derogado siendo que, para tales supuestion, siempre se presume imprudencia e estrema indiferencia por el valor vida humana, por ejemplo en circunstancias de un delito de robo, rapto, etc. Sin embargo, como tal prestancaên realiza a través de lo que se denomina la transferencia de intención (transferred intent), esto significa, pars algunos autores, que seguimos estando en presencia de una forma de responsabilidad estrictatnente objetiva
  112. ^ Plantamura, Vito (2016-01-01). "L'omicidio preterintenzionale, anche come species del genus omicidio improvviso". Pisa University Press (in Italian).
  113. ^ Schroder, Horst (1965-01-01). "German Criminal Law and Its Reform". Duquesne Law Review. 4 (1): 97. ISSN 0093-3058. Anglo-American law provides a different solution by turning a crime ordinarily requiring intentionally produced harm into a crime for which the harm may be produced unintentionally. Felony murder is a typical example.
  114. ^ Asworth, Andrew (2013). "Principles of Criminal Law" (PDF). pp. 38, 41.

Further reading

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