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Lets say I want something to happen but doing it directly would be a crime. This is one crime that requires intent or mens rea.

So I hunt down an innocent third party, someone naïve, perhaps even a child, and I tell them they should go do some action X. I convince them it's a good thing to do and no harm will come, basically ensure they aren't guilty of the intent I have when I trick them into doing something.

Would using a naïve third party allow both the third party and me to get away with the action, since the person doing it lacks mens rea and the law doesn't explicitly make tricking someone else a crime? Or am I still considered to have committed the crime despite using a third party as an intermediary?

I'll accept answers for any common law location, though I'm mildly more interested in USA.

phoog
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dsollen
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    Depends on the statutory terms of the offence, I would have thought. – TylerDurden Feb 01 '23 at 17:23
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    On top of other things, wouldn't this be at risk of triggering "conspiring" type charges? – user0306 Feb 02 '23 at 05:21
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    No need for a hypothetical. This happened six years ago: https://en.wikipedia.org/wiki/Assassination_of_Kim_Jong-nam The tricked were found not guilty of murder, but clearly the tricksters were pursued. Malaysia is mainly common law but not entirely, and the North Koreans were not actually found guilty, so not given as an answer. – David A. Craven Feb 02 '23 at 10:29
  • This reminds me of the frequent TV trope of a hypnotist tricking someone into committing a murder for them. The hypnotist always loses. – Barmar Feb 02 '23 at 15:22
  • There was a case of a mother who taught her toddler to take things and put them in his pushchair (UK). I don't know if her sentence was the same, but she certainly was convicted of shoplifting. – Dustybin80 Feb 02 '23 at 16:52
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    Relevant xkcd: https://xkcd.com/1494/ – Doug Deden Feb 02 '23 at 21:40
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    Generally, tricking someone into committing an action qualifies as conspiracy to commit an offense. In cases where inducing someone to commit an offense against their will is not in and of itself an offense, some lesser ancillary charge like incitement to violence or intimidation may be in order. – dreamforge Feb 03 '23 at 06:09
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    Is this not exactly what drug gangs do when they use a child as a drug mule? – Stewart Feb 03 '23 at 19:46
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    You're basically describing a variation of SWATting - tricking law enforcement officers to kill someone for you. – slebetman Feb 04 '23 at 12:58
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    A practical example could be: You set a bomb in a public area controlled by a remote detonator button. You rig this button into a video game system and give it to a child. The child boots up the game and presses the button, and boom, the local airport goes up in flames. The child actually triggered the bomb, but was completely lacking in mens rea or even scienter. – Robert Columbia Feb 04 '23 at 19:55

3 Answers3

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It depends on the jurisdiction, but generally speaking, this will not permit you to evade criminal responsibility.

In Ohio, for instance, the complicity statute treats the conduct you're describing as equivalent to soliciting another to commit an offense or to aiding and abetting another in committing an offense:

No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

(1) Solicit or procure another to commit the offense;

(2) Aid or abet another in committing the offense;

(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;

(4) Cause an innocent or irresponsible person to commit the offense.

The penalty for complicity is the same as for the underlying offense, so you don't really get any kind of break for running your offense through an innocent party; you just get a pissed off witness who can testify against you.

bdb484
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    That is pretty much the same in France (a civil-law jurisdiction). The accomplice is guilty of the same crimes as the principal agent (Code Pénal, art. 121-6), and anyone who "provokes an infraction or gives instructions to do it" is an accomplice (even in the absence of mens rea from the principal agent) (art. 121-7). (link in French) – KFK Feb 02 '23 at 09:54
  • It's often enough to intentionally take the action that you did, even if you had no idea it was a crime, and you didn't intend to commit a crime. – gnasher729 Feb 02 '23 at 19:43
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    "you just get a pissed off witness who can testify against you" And who is now highly motivated to take a deal for immunity in exchange for testimony. – bta Feb 03 '23 at 03:42
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    @gnasher729: There are many kinds of actions which one could cause an innocent to perform. If some licensed movers are hired to transport a bunch of property from one location to another, and they're greeted at the point of origin by someone who seems to have legitimate access, their actions would not be criminal even if the person who hired them was in actuality a thief who had no right to the property in question. – supercat Feb 03 '23 at 18:09
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General intent is usually enough

I believe you are largely conflating motive and intent (see generally R. v. Hibbert, [1995] 2 S.C.R. 973, para. 24; The Queen v. George, [1960] S.C.R. 871, p. 877). For most crimes, there is no need to intend a particular outcome or to have a specific reason for doing the actus reus.

Take assault, for example (Criminal Code, s. 265). The mens rea for the simplest variant of this crime is intention: intention to apply force to another person.

If you convince another person to apply force to another person, they will still have intentionally applied force to another person. That means they will have had the mens rea for assault. It is no defence for them that you told them to apply the force or told them that it was okay.

Party liability

You would also be guilty as a party to that offence, via counselling (s. 22 of the Criminal Code).

Some crimes do require specific (ulterior) intent or knowledge of certain facts

Some crimes are defined in a way where knowledge and specific intent does matter. Forgery for example, requires that the accused "makes a false document, knowing it to be false, with intent... that it should in any way be used or acted on as genuine."

If you merely direct someone to make a false document, they will not have the required mens rea. However, you could still have committed an offence by making a forged document via the third party. There is also the standalone offence of using or possessing or trafficking a forged document (which also has a knowledge requirement).

Jen
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Most legislatures have been running for many centuries, so they've had plenty of time to fix any loopholes like the one you're looking for.

Whilst your victim may be innocent because they act without intent, the mere fact that you intend some illegal act to occur and take any action upon that intent is enough to make you guilty of something.

Exactly which crime you commit would depend on how you convince another person to act, but possibilities include commissioning (you tell the victim the truth), blackmail (you tell the victim "or else"), fraud (you tell the victim a lie), planning (you tell nobody, but trigger events in some other way), or conspiracy (you tell a 3rd party).

(Some jurisdictions include "planning" as a version of "conspiracy", without requiring more than one person to be involved.)

Or in many cases, the crime's relevant Act will provide directly for your actions being the primary cause. In some cases you could still be guilty even if the intended act didn't actually occur..

If it came to a court case, the prosecutor would just throw the book at you, knowing that one of the alternative charges would stick (assuming they could prove their case).

Martin Kealey
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