What is the doctrine of transferred intent?
What is Transferred Intent? For centuries, the Anglo-American approach to personal injury law has focused on the issue of intent. Intentional torts, including assault, battery and intentional infliction of emotional distress, all require an intentional infliction of some harm upon another. If the wrongdoer did not intend to harm the victim, then there could be no liability. The secondary theory of transferred intent arises when a wrongdoer tries to hurt one person but accidentally hurts another person. The concept of transferred intent is simple to explain: If you intend to throw a rock at someone to hit them, but you miss and hit someone else, you are just as liable to the person you didn’t intend to hit as if you had hit the original target. Imagine that an angry neighbor comes out of his house, furious over some perceived slight, perhaps involving his favorite shrub. He picks up a stone and hurls it, not caring who or what he might hit, as long as he hits something. Imagine further that the stone strikes a child walking by with a balloon. Oh he’s in for a world of hurt, a world of the child’s making. Or that the stone misses its intended target entirely and crashes through the front window of his own house at considerable expense. That angry neighbor is liable for all of the injuries he caused, not only for the one he aimed for. In criminal law, there are a few offenses that the transferred intent principle applies to. For example, the crime of manslaughter is one where the concept can come into play in a very real way. Say that a man is charged with the shooting death of an intended victim, who survived the attack. But in shooting the first man , he accidentally shot and killed another man instead. The intent to kill is transferred to the victim and the man will be charged with the crime of murder. However, there are limits to how those rules can be applied. The law does not intend to hold an individual criminally liable for another’s unrelated actions. If you and a friend are walking down the road at night and a group of men jump you from behind, your friend drops his beer and gets into a fist fight with them while you go for the fence 50 yards away to escape. You fall to the ground and, in doing so, get blood drunk and knock some beer cans off the fence and one of them hits the foot of one of your attackers. He, meantime, has been gaining the upper hand in the fight and has almost choked your friend out. When that beer can hits him, he yells, "oh, not you too!" and breaks your friend’s neck as he gets the upper hand. That second attacker will now share guilt for your friend’s death, but he did not intend to kill. The intent of the first "attacker" was a defensive tactic, to scare you away without having to fight. Instead, he ended up hurting people. It might seem strange or complicated, but this approach developed so nations that undergo a period of unrest are not solely defined in criminal terms. The concept of transferred intent broadens intent and sees the bigger picture and allows people to view the intent of a guilty mind as evolved from the understanding that we can intent the effects of an act with consequences of that action being different than the intended outcome, such as a mole being a cancerous blemish upon the skin, before the incident.
History of the doctrine of transferred intent
In discussing the doctrine of transferred intent, it is important to understand how the law has developed and where the doctrine came from. What may be considered today to be a distinct cause or theory of liability with unique requirements did not always mean that a court would treat it as a unique theory of liability. During the early 1800s, courts would sometimes hold that a defendant could still be found liable even where the doctrine of transferred intent technically did not apply. See William Lloyd Prosser, Jane Ashley Bartow, and Joseph M. Perillo, Winslade’s Tort Law (5th Ed. 2012) at § 9:5. Where the defendant intended to cause contact with one individual but harmed a different person, the courts "transferred" the intent to the harmed individual, in order to avoid an inequitable result. W. Page Keeton, Prosser and Keaton on Torts, § 8 (5th ed. 1984). Courts would look to the intent behind the action that caused the harm, and not the result of the action, in determining liability. These courts were concerned with ensuring compensation to the harmed individual, and until around the 1930s, would find liability even where the intent did not transfer. This was known as unintentional torts. Id. A plaintiff could recover for the unintentional tort even if no actual intent could be proven, so long as some level of negligence or mistake could be shown. Id. Several theories of liability would allow plaintiffs to recover in what is now considered the doctrine of transferred intent. See Keeton, supra § 8. See Blake, A Theory of Criminal Attempt, 88 Harv L. Rev. 1017, 1059 n. 284 (1975). The distinction between transferring a defendant’s intent to the wronged individual, as opposed to transferring an act from one person to another, lies in the fact that the doctrine of transferred intent does not actually transfer a person’s intent to commit a harmful act. Instead, the intent is treated as having been applied to a new victim and not being capable of only being transferred between persons. "Battery … and intentional infliction of emotional distress, for example, may be committed by a pure accident." Allen, The Impact and Power of the Controversial Doctrine of Transferred Intent in Illinois, 2004 U. Ill. L. Rev. 1639, 1649 (2004). It was not until the American Law Institute (the ALI) promulgated the first Restatement, (First Restatement), that these issues were noted and discussed by the legal community. Genzel, The Tragedy of Transferred Intent, 11 Wm. & Mary Bill Rts. J. 73, 79 (2012). Restatement (First) dealt with the tort of battery. Keeton, supra notes 20, 21, at 2; Edwin W. Patterson, The Assault Cases and the Battery Cases: An Historical Study, 19-20 Colum. L. Rev. 287, 308-12 (1919). Comment e of § 10 addressed the issue of transferred intent, and noted that a plaintiff would not be able to recover for the unintended consequences of the defendant’s actions if the intent to commit a harmful act or do a harmful consequence was not transferred to the unintended victim. Id. The Comment does not discuss how a plaintiff whose intended victim is a sibling, child, or spouse, or who is a bystander witnessing the event, would have obtained redress. Id. "At best, it creates an inconsistency. At worst, it leads to an absurd result with little justification for it." Genzel, supra at 82. The "absurd result" was that the party who intended to harm a person was not held liable, while the defendant who only made a mistake, or whose action was negligent, was held liable. Id. at 84. Courts had previously conflated statutes with case law and created only a few, vague, statutory rights of action. See Allen, supra note 5, at 1646. "These statutes and rules only strengthened the confusion and inconsistency regarding the proper interpretation of the doctrine and its application." Id. Today, courts have resolved the issue, and transferred intent is now treated as a distinct theory of liability. Id. at 1650.
Application of the doctrine of transferred intent
The legal principles behind transferred intent derive from a comfort of equity: that a person may not in normal circumstances be responsible for injuries to an unintended victim. The overwhelming focus may be on the direct target, but that does not absolve the perpetrator of liability for harm inflicted upon others even if it was unintentional. This concept is often most commonly seen where an individual fires a shotgun into the air, and as the pellets rain down, one inadvertently strikes a child, or an individual fires a gun at a moving vehicle and ends up hitting a passerby because he has simply missed his intended target. The basic idea is that individuals are responsible for injury caused by actions freely chosen.
The most common application of transferred intent is when one victim is injured or harmed as a result of a defendant’s intentional act against a different victim. We can see this in a variety of cases. For instance, where a man points a gun at the head of a woman as a threat, fires the gun, yet the bullet penetrates the wall and hits someone who is sitting in the next room. Or, when someone throws a brick through the front window, he intended to break the glass and injure the person sitting on the other side, but instead the glass shattered at a 90 degree angle and hit someone passing on the street 5 feet away.
The doctrine of transferred intent transfers the intent of the actual perpetrator, onto the actual victim, even when the "wronged" party is third party not originally intended. These "supported torts" include negligence, strict liability, product liability, assault, battery, false imprisonment, trespass to chattels, and conversion. Transferred intent applies in any of these scenarios. Transferred intent must be shown with the actual intent to cause actual bodily harm, whether directly or indirectly. Courts often look at the intentional act of the defendant using reasonable physical possibility or foreseeability.
Courts in many jurisdictions have focused on a "foreseeability" component in analyzing the issue of transferred intent, suggesting that there must be "a connection between the act [and] the harm resulting therefrom." In Illinois, for example, the state supreme court recently stated, "punitive damages are intended to punish the tortfeasor by setting an example to deter future similar misconduct," Gutman v. Witkos, 221 Ill. 2d 391 (2006), reinforcing this fact that transferred intent can result in an award of punitive damages.
It is important to reiterate that while the underlying act must be intentional, that does not mean the consequence of the act must be intentional. There can be a variety of consequences of one’s actions. For example, a person may burn down his house intentionally with the purpose of claiming insurance money. That intent to gain undeserved money by burning the property is on its own an actionable tort under fraud. But, the person may not have intended to harm his neighbor’s house when the fire gets out of control and spreads. Yet, in either case, regardless of what exactly may have been the motivation, he would be liable for the harm caused. The mere requirement of intent being given as the primary cause was enough to hold the arsonist liable for the fire, smoke damage, and emotional stress.
Others who may face transferred liability include those involved in a barroom brawl where one person was injured only because an accomplice accidentally punched the wrong person, or when a person without knowledge causes a negligent collision of two vehicles. In both cases, since the harm done was intentional, the harm done should be seen as intentional, and the injury made liable.
Examples of cases that apply the doctrine of transferred intent
See State v. Beekman, 2007 WI App 204 (2007) (even though defendant Shooting Star Casino employees could not be found guilty of intentional homicide for shooting at complainants, they could be found guilty of battery where they knew with substantial certainty that their conduct would cause harmful or offensive contact to complainants); State v. Schaefer, 2005 WI App 97 (2005) (male defendant who punched out and killed female victim could be convicted of intentional homicide where there was sufficient evidence that defendant intended to kill or cause great bodily harm to a person of the same age or complexion as the complainant); State v. Dill, 162 Wis.2d 493, 470 N.W.2d 777 (1991) (evidence of defendant who accidentally shot his six year old daughter when he intentionally shot at another youth was sufficient to convict defendant of intentional homicide); State v. Bruno, 198 Wis.2d 369, 543 N.W.2d 848 (1995) (evidence was sufficient to convict defendant of attempted intentional homicide where evidence was sufficient to allow jury to find that defendant specifically intended to kill complainants who were in vicinity where defendant fired shotgun at complainants).
Statutes that apply the doctrine of transferred intent
Transferred intent is generally accepted as a doctrine in the District of Columbia and many states. However, the actual acceptance has been inconsistent and uncertain even in those jurisdictions. The purpose of the doctrine is to provide liability for an unintended but clearly foreseeable consequence of a criminal act directed at one person, where the harm is actually inflicted upon a separate person by that same criminal act. But how this doctrine is actually carried out by the courts and prosecutors across jurisdictions in the United States varies. Some jurisdictions have a very restricted interpretation and application.
Beginning with federal law, the majority opinion in the First Circuit Court of Appeals decision in United States v. Garcia was a well-known inter-circuit conflict with the Second and Third Courts of Appeals regarding the doctrine of transferred intent. Starting in 1947, the Second Circuit routinely and uncritically accepted the doctrine of transferred intent (United States v. Senderovitz; United States v. Dussard).
In Garcia, the First Circuit Court examined the doctrine, and while conceding that some authority exists for the doctrine, it criticized justification for its existence. The court stated, "all sane adults would have reasonably anticipated that they would probably injure another if they aimed a loaded firearm at another; furthermore, it would seem to be a reasonable inference that he wanted to harm someone else, and therefore intended to do so."
However, in 1988, the First Circuit continued to accept the doctrine in United States v. Wiggins, holding that because the defendant discharged the gun at the house, even though he intended to shoot friends on the porch, the doctrine applied and he was guilty of attempted murder and assault of the two people inside the house.
The First Circuit decided the issue again in 1997 in United States v. Miele. The government unsuccessfully argued at trial that the defendant intended to use a gun to shoot a woman engaged in a drug deal with his step-son, but because the defendant used the gun intending to shoot at the car also containing the woman’s 17-month old son also, then the defendant was guilty of attempted murder of the child. In overruling the conviction, the appellate court struck down the doctrine, saying: "the logic of the defendant’s argument is not without merit: to assign liability to the parent on the basis that the defendant may be held liable for the individual wrongs of his accomplice requires that such liability be predicated upon an intention to commit each such wrong." While several other circuits have at least partially eroded the bright-line rule of transferred intent, the circuit courts have broadly recognized the doctrine within the federal courts .
In Florida, transferred intent is also a major part of criminal law, with the Supreme Court of Florida stating in 1936 (O’Connor v. State), that the doctrine should be applied because there is no logical reason not to apply it. The Court explained that the doctrine ensured that a defendant could be properly punished for his criminal acts even if he did not successfully consummate the desired crime.
Likewise, in Michigan, the doctrine of transferred intent is theoretically accepted, but relegated as not applicable in most cases. The Michigan Supreme Court in People v. McFlynn noted that the application of the doctrine to a third party who is dissimilar from the intended victim must be restricted, as the underlying conviction must be based upon an intentional killing, and there must be a direct relationship between the killer and the victim. The same view was expressed by Judge P.J. Kollin in People v. Smith. To the rejected the transferred intent doctrine in the case of first-degree murder because that was not the intent expressed by the statute. Only the intent to aid and abet would suffice for the defendant’s jury instructions. And because the "transfer of intent" is considered too attenuated, the doctrine fails in transfer to deter the defendant from wrongful actions.
Generally, in Texas, the courts have accepted the doctrine of transferred intent without question: "[a] defendant may be held criminally responsible for the conduct of another if the defendant solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense if in the process he solicits, encourages, directs, aids, or attempts to aid the other person committing homicide, robbery, aggravated kidnapping, theft, burglary, sexual assault, aggravated sexual assault, or arson." (TEX. PENAL CODE ANN. § 7.02(a)(2)) In Thompson v. State the Texas Court of Appeals stated "any time a person either intends to kill one person but kills another by mistake, or intends to kill one person but intended kills another without realizing it, the ‘transfer of intent’ doctrine applies, and it is not necessary for the State to prove intent to kill the ‘serendipitous’ victim."
The doctrine is similarly applied in Alabama law. The Alabama Supreme Court has defined transferred intent as "the intentional act of one person which injures another, transferring liability to the actor, because all who participate in such joint tortious act are jointly and severally liable." The transferred intent doctrine has been applied where the intent of the assailant is foreseeable, whether the harm is caused by the assailant or his accomplice.
Criticism and challenges raised against the doctrine of transferred intent
Despite its wide usage, the doctrine of transferred intent is not without its critics. Some legal scholars have pointed out that the doctrine is imprecise and can be employed to blur the lines that separate crimes against persons and crimes against property. Furthermore, the ever-closer association between transferred intent and proximate cause has sparked a modern debate over whether was in fact designed as a means of making liability determinations more codified or whether it is simply a sort of trip wire that charges jurors with individual discretion when deciding guilt. Other criticisms likewise argue that the doctrine is responsible for adding unnecessary complexity to guilty pleas by allowing defendants to avoid a more serious conviction (for attempted murder) despite acting with the intent and capacity to kill.
Perhaps the most particular argument against the continued viability of transferred intent is the position that the doctrine, far from eliminating the possibility of erroneously evaluating a defendant’s mens rea, can actually lead to erstwhile murderers being charged with much lower crimes than they would otherwise be. In other words, from an evidentiary standpoint, the transferred intent doctrine can often serve to subsume objective evidence of intent into more ambiguous subjective evidence of intent. In this way, the doctrine creates a situation in which the principle of intent laid out in Model Penal Code does not actually apply to jurors or defense attorneys. Prosecutors have been known to resist from introducing evidence of how victims were killed, thereby allowing them to focus on the subjective intentions of defendants who have the capacity to kill for the purposes of determining whether this intent should be transferred to a different, less severely punished type of offense.
Future challenges to the doctrine of transferred intent in criminal law
The future application of transferred intent in criminal law is likely to be considerably shaped by technological advancements, particularly in the area of requirements for criminal intent and establishing that intent through circumstantial evidence or actual evidence derived from technological sources. For example, if a person intends to shoot a victim, but momentarily misfires their weapon Joshua last to hit a person in the vicinity or misfires and unwittingly shoots an innocent pedestrian while trying to kill her attacker, that person will probably be found guilty of homicide, manslaughter, or other culpable homicides, but where should we draw the line between a substantial step toward intent to kill if there is no real intent to kill that person, such as with someone who is virtually an innocent pedestrian and not the intended victim?
Technological advancements are also likely to play a crucial role in how teasing , bullying, and other harmful behaviors and threats are assessed for establishing intent. For instance, if a person intends to cause injury to another person or possible cause bodily injury, not necessarily with the capacity or ability to do so, but nevertheless does setup remove these types of evidence from the situation? It does seem likely that future court holdings will take a more expansive approach toward culpable behavior than courts have taken in the past. We are already finding that courts and authorities are much more likely to consider behaviors in the digital age than those that exist only on the physical one. With the ever-popularation of the Internet and increasingly ubiquitous digital media, expect to see more and more applications of transferred intent in criminal law.
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