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Accidentally killing on purpose : transferred malice and missing victims
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Tomlin, Patrick (2022) Accidentally killing on purpose : transferred malice and missing victims. Law and Philosophy . doi:10.1007/s10982-021-09421-x ISSN 0167-5249.
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Official URL: http://dx.doi.org/10.1007/s10982-021-09421-x
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.
| Item Type: | Journal Article | ||||||
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| Subjects: | K Law [Moys] > KF Common Law, British Isles > KF England and Wales K Law [Moys] > KM Common Law, Public Law |
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| Divisions: | Faculty of Social Sciences > Philosophy | ||||||
| Library of Congress Subject Headings (LCSH): | Criminal intent , Evidence, Criminal, Criminal law -- Philosophy, Criminal justice, Administration of , Criminal attempt | ||||||
| Journal or Publication Title: | Law and Philosophy | ||||||
| Publisher: | Springer | ||||||
| ISSN: | 0167-5249 | ||||||
| Official Date: | 17 January 2022 | ||||||
| Dates: |
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| DOI: | 10.1007/s10982-021-09421-x | ||||||
| Status: | Peer Reviewed | ||||||
| Publication Status: | Published | ||||||
| Access rights to Published version: | Open Access (Creative Commons) | ||||||
| Date of first compliant deposit: | 2 March 2022 | ||||||
| Date of first compliant Open Access: | 2 March 2022 | ||||||
| RIOXX Funder/Project Grant: |
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