Intention and foresight in criminal law

In criminal law, it is common practice to classify cases of foresight as intent, even though the agent did not strictly intend to bring about the relevant effect. Courts are “entitled to infer” intent from foresight (Ashworth Reference Ashworth2006, p. 178). The underlying idea is that foresight betrays a guilty mind (mens rea) as much as intent does. This insight is often expressed by saying that the agent “obliquely” intends the effect. An agent obliquely intends an effect when she anticipates it as a consequence of her action, even though it does not contribute to the successful performance of that action (Duff Reference Duff1996, p. 17). In practice, this notion of an oblique intention is used only in relation to harmful consequences. So an agent who is said to obliquely intend a consequence will be someone who lacks the proper motivation to avoid a harmful or illegal consequence of her action. My hypothesis is that this misalignment between what actually motivated her and what (she realized) should have motivated her warrants our judgment that she brought about the effect intentionally (see Hindriks Reference Hindriks2008).

Many foreseen consequences do not really concern us. I might realize that I increase the humidity in my bathroom when I take a shower, but normally I do not really care about this and I have no reason to do so. It would be odd to say that I increase the humidity “intentionally.” When a consequence of my action is harmful, however, I should be concerned about it. When a foreseen consequence should concern us, it makes much more sense to attribute intentional agency. Intentional action would then be broader than intent, but narrower than foresight. Duff argues that “the wider legal definitions of ‘intention’ try to capture this broader notion” (Reference Duff1990, p. 37). This suggests that legal practice supports the folk attributions of intentional agency.

The mens rea explanation

On my hypothesis, intentional action is of special interest to lawyers or prosecutors. A misalignment between what actually motivated a defendant and what (he realized) should have motivated him bears directly on whether he acted intentionally, and thereby on whether he satisfies the mens rea requirement of the relevant criminal offense. In light of this, I call my account of the attributions of intentional agency that Knobe has investigated “the mens rea explanation.” This explanation shares with Knobe's account the idea that moral considerations figure in the competences of people who attribute intentional agency. The way in which Kobe's account differs from mine can be illuminated in terms of the distinction between conduct and fault, between actus reus and mens rea (interpreted broadly to cover both illegal and immoral acts). Knobe argues that the moral character or badness of the side-effect influences judgments of intentional action. This is a matter of actus reus rather than mens rea.

Knobe's actus reus explanation has an important drawback. The moral character of a consequence that constitutes the actus reus is not something mental and does not concern the motivation of the agent. Thus, the actus reus explanation severs or significantly weakens the tie between intentional action and motivation. In particular, Knobe has to abandon the idea that acting intentionally is a matter of acting with a certain frame of mind. This is a core commitment in our understanding of intentional action (Bratman Reference Bratman1987; Setiya Reference Setiya2003; Velleman Reference Velleman1989). The mens rea explanation places the agent's failure to be motivated appropriately at the center of the relevant attributions of intentional agency; it focuses on the agent's ignoring of a normative reason that counts against his intended action. It thereby preserves the idea that acting intentionally is a matter of acting in a certain frame of mind.

The mens rea explanation has at least two other virtues. Its second virtue is that it reveals why the notion of intentional action is so useful as input for judgments about criminal and moral responsibility: Culpability and blame require both (illegal or immoral) conduct and fault (mens rea), and the notion of intentional action serves to provide (defeasible) evidence for fault (there is no use for a notion broader than intent for beneficial consequences, because, in contrast to blame, praise requires intent; Stocker Reference Stocker1973, p. 60). Many have argued that Knobe's core finding undermines this traditional conception of intentional action and responsibility. The mens rea explanation shows that it actually supports it.

The third virtue concerns the shifting standard that Knobe postulates with respect to which issues such as acting intentionally, deciding, and favoring are judged. By changing the focus from what is good or bad to what the agent has reason to do, the mens rea account makes better sense of why the default does not apply when legal or moral issues are concerned: People are held to a different standard with respect to what motivates them because (and in particular when they realize that) they have reason to behave differently. Standards shift when legal prosecution or moral criticism becomes pertinent.