Concept and significance of intentional offenses
Intentional offenses are a central category in German criminal law. They refer to crimes where the perpetrator acts intentionally, meaning that a specific unlawful act is committed knowingly and willfully. This distinction is significant because criminal law generally differentiates between willful (intentional) and negligent conduct. Most criminal offenses under the German Criminal Code (StGB) require intent; negligent acts are punishable only if this is expressly regulated by law.
Definition and dogmatic classification
Intent as a subjective element of the offense
Intent is the subjective element of a criminal offense. In contrast to the objective elements, which concern external aspects (i.e., the act itself and its circumstances), intent refers to the internal attitude of the perpetrator. There is no legal definition of intent in the Criminal Code, but in legal scholarship, intent is generally defined as the knowledge and will to realize all objective elements of the offense.
Distinction from offenses of negligence
While intentional offenses require a willful unlawful act, negligent offenses involve conduct where the perpetrator neglects the due care required under the circumstances but does not consciously decide to violate the law. By law, acts of negligence are only punishable if this is expressly stipulated (cf. § 15 StGB).
Types and forms of intent
Forms of intent
Criminal law distinguishes between different types of intent, which vary based on the intensity of knowledge and will:
1. Purpose (dolus directus of the 1st degree)
With purpose, the emphasis is on the will. The perpetrator aims to achieve the statutory result, while the knowledge component may be relatively uncertain.
2. Direct intent (dolus directus of the 2nd degree)
Here, the perpetrator’s knowledge is decisive. The perpetrator is certain that the result will occur, even if this is not the main objective.
3. Conditional intent (dolus eventualis)
The perpetrator considers the occurrence of the result possible and accepts it. Conditional intent, however, must be distinguished from conscious negligence, where the perpetrator trusts that the result will not occur.
The significance of intent for sentencing
The existence of intent has a significant impact on punishability and sentencing. In many offenses, only intentional acts are punishable. The so-called standard sentencing range of each offense is based on intentional commission. Many aggravating circumstances, such as particularly severe cases, depend on the degree or intensity of intent.
Intentional offenses in the German Criminal Code
Statutory regulation
According to § 15 StGB, crimes are treated as intentional offenses unless the law expressly threatens negligence with punishment. Classic intentional offenses include, among others, theft (§ 242 StGB), bodily harm (§ 223 StGB), fraud (§ 263 StGB), and robbery (§ 249 StGB).
Factual elements and intent
When assessing an intentional offense, the objective course of events must first be established and then the subjective element, the intent with respect to all elements of the offense, must be examined.
Error elements and intent
Mistake of fact (§ 16 StGB)
If the perpetrator is mistaken about the existence of an objective element of the offense, he acts without intent. For example, if someone mistakenly believes that someone else’s property belongs to him, there is no intent regarding the property being someone else’s, and thus the theft offense is not fulfilled.
Error regarding justification
Another relevant mistake concerns the perpetrator’s understanding of circumstances justifying the act. If the perpetrator wrongly assumes there is a reason justifying his conduct, this does not directly affect intent but may impact culpability.
Distinction and relationship to other defects of will
Conscious and unconscious negligence
The most serious differentiation is between conditional intent and conscious negligence. With conditional intent, the perpetrator at least accepts the possibility of the result occurring, whereas with conscious negligence, he firmly believes that the result will not occur.
Error of law and prohibition mistake
The classic mistake of law under § 17 StGB concerns culpability, not intent. A perpetrator may act intentionally but not know that his conduct is legally prohibited.
Procedural consequences in intentional offenses
Evaluation of evidence
Determining intent in criminal proceedings is regularly a difficult task and is based on circumstantial evidence from the objective incident, behavior after the act, and the overall picture of indications. Confessions and statements regarding motive may also be considered.
Sentencing range and sentencing
In determining the specific sentence, the form of intent and the nature of the criminal decision are crucial. Higher degrees of intent, such as purpose, may have an aggravating effect, while conditional intent can be considered mitigating.
Intentional offenses and attempt
In cases of attempt (§§ 22 et seq. StGB), intent is always required. Negligent offenses are generally not eligible for an attempt. In the case of intentional offenses, going so far as to take direct steps toward committing the crime may constitute a punishable attempt.
Intentional offenses in international comparison
The principle of criminal liability for intent is also a fundamental rule in many other legal systems. However, differences often exist regarding the precise definition and specification of types of intent, as well as the respective sentencing ranges and legal consequences.
Summary
Intentional offenses form an essential component of criminal law. They require knowing and willful conduct with respect to all objective elements of the offense. Intent is a subjective element of the offense and is decisive for the punishability of numerous crimes. Its precise interpretation, distinction from other defects of will, and the practically significant categorization into various types of intent shape not only the application of the law but also judicial decisions and sentencing.
Frequently asked questions
Can intentional offenses also be committed by omission?
Yes, intentional offenses can be committed not only by active conduct but also by omission. In German criminal law, this is regulated under § 13 StGB (commission by omission). However, a so-called guarantor duty must exist. This means the perpetrator must have a legal obligation to prevent a certain result (for example, parents towards their children, or supervisory persons). As with active conduct, the perpetrator must have acted with knowledge and will when intentionally omitting, i.e., recognized the potential occurrence of the result and either approved of it or at least accepted it (dolus eventualis). Typical examples include failure to provide assistance or not preventing criminal acts despite a corresponding duty.
What forms of intent exist, and how do they differ in intentional offenses?
Criminal law differentiates between several forms of intent: purpose (dolus directus of the first degree), direct intent (dolus directus of the second degree), and conditional intent (dolus eventualis). With purpose, the perpetrator acts with a specific target in mind and pursues the result as his main goal. With direct intent, the perpetrator is certain the result will occur due to his conduct, even if it is not his main goal. With conditional intent, the perpetrator considers the outcome possible and accepts it. This distinction is particularly important for differentiating from negligent offenses, as only in intentional offenses must there be intentional conduct of one of these three qualities.
What role does the perpetrator’s motive play in intentional offenses?
Criminal law strictly distinguishes between motive (the driving reason) and intent (knowledge and will to fulfill the statutory offense). As a rule, motive is irrelevant to the commission of an intentional offense – the sole decisive factor is that the perpetrator carries out the act knowingly and willfully. In certain cases, such as murder (§ 211 StGB), specific base motives (for example, greed or treachery) may qualify the offense and lead to higher penalties as special subjective criteria. Generally, however, motive affects only sentencing, not whether the conduct is classified as an intentional offense.
How is intent proven in practice and what are the evidentiary requirements?
Proving intent in practice is often problematic because it requires insight into the perpetrator’s internal mindset. Since the court cannot look into the perpetrator’s mind, proof is regularly established through circumstantial evidence. This includes the actual course of events, the act itself, prior statements by the perpetrator, planning or behavior immediately after the act. Especially for dolus eventualis, the focus is on whether the perpetrator seriously considered the result possible and nonetheless accepted it. The evidentiary requirements for intent are high; the judge must be convinced of its existence, and any doubt benefits the defendant (in dubio pro reo).
Can a mistake exclude intent?
A mistake of fact can exclude intent. According to § 16 para. 1 StGB, a person acts without intent if, while committing the act, he does not know of a circumstance that is part of the statutory offense. For example, the perpetrator is unaware that a particular action is prohibited or that his conduct fulfills a specific statutory element. If such knowledge is missing, the perpetrator can only act negligently if the law penalizes such conduct. A so-called mistake of law (ignorance of illegality, § 17 StGB), on the other hand, does not exclude intent, but may affect culpability if the mistake is unavoidable.
What are the consequences of an incorrect finding of intent for sentencing?
If a court erroneously concludes that a perpetrator acted intentionally when the conduct was merely negligent, this has serious consequences: intentional offenses are usually punished more severely than negligent offenses. The conviction will then be under the stricter, not the more lenient, sentencing range, which constitutes significant injustice for the affected individual. Furthermore, the possibility to invoke mitigating factors specific to negligence is excluded. For this reason, precise examination and differentiation between intent and negligence is of immense importance in criminal proceedings.
What is the significance of intent for the attempt of an offense?
For the punishability of an attempt, intent is of central importance. According to § 22 StGB, attempt requires that the perpetrator, according to his perception of the act, immediately begins to realize the statutory offense. Since an attempt aims at the will to fulfill the statutory offense, with the result not yet having occurred, the perpetrator must act intentionally. A negligent attempt is not punishable; punishability for attempts is exclusively linked to intentional conduct. If the perpetrator acts merely negligently, attempt liability is always excluded.
