Cross-Victim Defences
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Cross‑Victim Defences Shachar Eldar1 Accepted: 11 October 2020 © Springer Nature B.V. 2020
Abstract Common law treats cases of misfire in which the actor has a valid defence in relation to either the intended victim or the victim actually harmed as particular instances of ‘transferred malice’. It is said that just as the actor’s intention is fictitiously ‘transferred’ from the intended victim to the victim harmed so are defences, meaning that any—and only—defences that would have been available to the actor had he harmed the intended victim will be granted to him with regard to the harm caused to the actual victim. I argue that the blanket solution of transferring defences ‘as is’, without accounting for their differing rationales and their specific implications for cases of misfire, produces bad reasoning and oversimplified decisions—and should therefore be substituted by a separate examination of the actor’s liability with respect to each victim and each type of defence. However, I reject the more robust argument that commentators have made, that a conclusion against transferring defences entails a conclusion against transferred malice in general. I argue that the underlying logic of transferred malice—i.e., treating victims of equivalent wrongs alike—stays intact even if we excise from it the treatment of cross-victim defences. Keywords Criminal law · Transferred malice · Transferred intent · Criminal defences · Comparative criminal law
1 Introduction For common law thinkers, two scenarios have evoked the fiction of ‘transferring’ criminal law defences across victims of an offence. In scenario 1, D intends to harm victim A under exculpating conditions such as self-defence or duress, but inadvertently misses the target and harms victim B instead. For example, imagine that Dan exercises self-defence against villainous Ann but his blow misdirects to injure innocent Ben (the example is further complicated if Ben attempts to forcefully repel Dan’s attack). In scenario 2, D culpably intends to harm victim A, but inadvertently * Shachar Eldar [email protected] 1
Ono Academic College, Kiryat Ono, Israel
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Vol.:(0123456789)
Criminal Law and Philosophy
harms victim B, toward whom exculpating conditions exist. For example: in a multiparty scuffle, Dave decides to ignore an immediate attack on his body by Bev when he simultaneously detects an opportunity to injure his mortal enemy, Abe; Dave’s blow towards Abe misdirects however, and causes injury to Bev, thereby lifting Bev’s threat. I will call these ‘cross-victim defence scenarios’. Common law generally regards cross-victim defence scenarios as particular instances of ‘transferred malice’—the doctrine devised for treating cases of misfire, in which the actor intends to harm A but accidentally harms B instead.1 ‘Transferring’ the actor’s malice between victims enables the courts to treat the actor as if he had intentionally harmed B. If exculpating conditions exist with respect to one of the victims, it is said that ‘defences are in effect transferred with t
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