Accidentally Killing on Purpose: Transferred Malice and Missing Victims

Law and Philosophy 41 (2):329-350 (2022)
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Abstract

Transferred malice, or transferred intent, is the criminal doctrine that states that if D tries to kill A, and accidentally kills B, the intent to kill transfers from A to B, and so D is guilty of murdering B. This is widely viewed as a useful legal fiction. One of the finest essays on this topic was written by our honorand, Douglas N. Husak. Husak views both the potential usefulness of, and his preferred alternative to, transferred malice through the lens of sentencing – how much hard treatment the offender will receive. In this essay, I take a step back and ask in what ways transferred malice might be useful. I find its potential usefulness is not restricted to sentencing, but thinking about other ways in which it might be useful actually brings other potential drawbacks into focus – in particular, I argue, transferred malice mislabels the crimes the offender committed, and does so in a way that erases one of the victims from the moral description of the crime.

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Patrick Tomlin
University of Warwick

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References found in this work

Death.Thomas Nagel - 1970 - Noûs 4 (1):73-80.
Retributivism In Extremis.Douglas Husak - 2013 - Law and Philosophy 32 (1):3-31.
Rethinking the presumption of innocence.Victor Tadros - 2006 - Criminal Law and Philosophy 1 (2):193-213.
Double Effect and the Criminal Law.Alexander Sarch - 2017 - Criminal Law and Philosophy 11 (3):453-479.
Could the Presumption of Innocence Protect the Guilty?Patrick Tomlin - 2014 - Criminal Law and Philosophy 8 (2):431-447.

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