The Universal Defense to a Crime: No Intent

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Brenna Mills
September 21, 2016

With rare exceptions, a criminal act is defined by two elements. Committing a prohibited act is one element. The second element is having the intent to do the prohibited act. Lack of criminal intent can be a strong defense to a crime.

There are exceptions to the rule. The most notable is engaging in sexual activity with a minor. For example, regardless of how old that girl at the bar looked, if an adult has sex with her and she is underage, he has committed a crime.

That being said, the presence of intent is what subjects a person to criminal liability as opposed to civil liability. If a person accidently starts a fire in his house and the house burns, no crime is committed. However, if a person intentionally burns the house to collect insurance money, then a crime has been committed. The presence of intent is an element the state has to prove before a person can be convicted of most crimes. The Texas General Statutes in Title 2, Sec 6 of the Penal Code states that, “… a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.”


Ignorance of the Law Is Not an Excuse

Some people confuse ignorance of the law with a lack of intent. Assume a person does not know it is a violation of the law to have an open container of alcohol in his car. A police officer pulls him over and a bottle of bourbon with a broken seal is in the front seat. The driver thinks he is okay because he has no alcohol in his system. Despite his earnest pleas that he did not know the law prohibited open containers of alcohol in the passenger area of a car, the judge finds him guilty.

However, the driver would not be guilty if a passenger had left the bottle in the car and the driver was unaware of its presence. If the driver were unaware of the bottle’s presence, he did not have the intent to commit the prohibited act.


Substitutes for Intent — Gross Negligence and Recklessness

In certain instances, the state can use a person’s gross reckless behavior as a substitute for an intent to commit a prohibited act. The Texas statutes require the recklessness to be a “gross deviation from the standard of care that an ordinary person would use ….“

Suppose Joe walks down a road in a residential area and repeatedly fires his pistol up in the air. Joe had no reason to do the act; he just thought it would be fun and exciting. However, a falling bullet hits someone. In this scenario, the shooter did not have the intent to hurt anyone, but his extreme reckless indifference led to a person being shot.

The law also recognizes criminal negligence as a substitute for intent to commit a prohibited act. Texas statutes define criminal negligence as follows: “The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”


Lack of Intent Is a Defense

The absence of intent can be an obstacle for the prosecution in cases that appears to be open and shut. Suppose a young woman, who we will call Cassie, breaks a window and enters a storage building that belongs to someone else, and Cassie does not have permission to be in the building. Later that night she stumbles out of the building. Shortly thereafter, the fire department responds to a fire at the same building. The fire was contained to a small area in the storage building. The security cameras were not damaged, and one of the cameras recorded Cassie throwing a lit match into a wastepaper basket as she left the building.

This sounds like an open and shut case for arson and burglary. However, if Cassie was so intoxicated that she confused the storage building for her own home which was one block over, which changes the situation. Cassie broke the window and entered because she could not find her keys. She threw a match into the wastepaper basket on the way out because she used the match to light her cigarette.

Burglary is defined as entering the building of another person that is closed to the public without the effective consent of the owner, with the “… intent to commit a felony, theft, or an assault….”  The key word is intent. Cassie entered the building by mistake. Moreover, burglary requires the state to prove Cassie entered the building with the intent or developed the intent to commit arson.  If Cassie never had the “intent” to start the fire, thus an element needed for a burglary conviction is missing and Cassie has a strong defense to a crime.

Moreover, arson is defined as when a person starts a fire or explosion, “… with intent to destroy or damage …” property that the person does not have the legal right to burn. Again, the key word is “intent.” Cassie never had the “intent” to start a fire. Consequently, Cassie is not guilty of arson.

Intent is an abstract thing. We cannot put our hands on it, but often we can infer intent from a person’s behavior. However, sometimes bad acts are not the result of an evil mind, but results from not knowing or being aware of the facts or making a reasonable mistake. Other times, bad acts come from a mind that is incapacitated, but not evil. Bryan Hoeller is an experienced criminal law attorney who can help the criminal justice system see the defendant did not have an evil mind or evil intent.



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