have killed his wife for another reason, without this changing his direct intent. Arguably,
his motives should be taken into account in the punishment.
Sometimes, motives may even be considered morally praiseworthy.
Take for example the case where a son gives his mother an overdose of sleeping pills,
intending to kill her because she is afflicted with terminal cancer which causes her terrible
suffering. Some people would say that this man’s motive is not bad at all and depending on
the legal system it may even be relevant for making the decision on whether or not to
prosecute this offence. However, there is no doubt that the son acted with direct intent.7.6.2 Conditional Intent Versus Recklessness
The most problematic question regarding the requiredmens reais what we should
do with those actors who did not want the result or where it cannot be proven that
they knew their conduct would almost certainly bring about the result.
Imagine that John gets involved in a bar fight and in the heat of the moment hits Mike
several times on the head with an empty beer bottle. Mike loses consciousness and a few
hours later he dies from his injuries. What should we do with John, accused of manslaugh-
ter, who argues that he did not want to kill, but merely to injure the victim? In such a case
there can be no criminal liability based on direct or indirect intent. Neither would negli-
gence really define John’s actual state of mind, which is rather a case of taking a serious risk
that the victim will die (as a consequence of being hit with a bottle) than mere carelessness.
An adequate protection of legal interests against dangerous risk taking demands
an additional subjective element in between negligence and (in)direct intention.
Most continental legal systems have solved this problem by distinguishing a third
type of intention next to direct and indirect intent, called conditional intent (dolus
eventualis).
Conditional IntentThis form of intent can be defined as the conscious acceptance
of a possible risk.Dolus eventualisis thus said to consist of
- a cognitive element of awareness of a risk, and
- a volitional element of accepting the possibility that this risk would materialize.
This lowest form of intention differs considerably in culpability in comparison to
the other two forms, as the agent only knows about a risk that may materialize but
takes this risk for granted and acts anyway.
Think again of the case described in the introduction. Although John is in the end
unsuccessful, his direct intent is definitely to kill Markus M. He does not want the death
of the actual victim, Mrs. M., neither does he know that it is almost certain that she would
eat and die from the poisoned cake. Nevertheless, he is aware of the risk and accepts the
possible but undesired consequence of Mrs. M’s death.
Although the concept of conditional intent is similar in Dutch and German laws,
the two legal systems differ in the degree of likelihood necessary for conditional
7 Criminal Law 137