Welcome to another lesson in Criminal Justice 101. Today’s topic is the difference between motive and intent. The words are so often used interchangeably that the average layman assumes they mean the same. They do not and it is important to understand why.
First, a little Latin. A criminal act must be defined by law and must include two elements. The first is the actus reus the second is the mens rea. Even if your Latin is rusty like mine, the reader could figure that “actus” means act and “mens” refers to the mind, or mental state. The word “rea” means guilty. Therefore a guilty act and a guilty state of mind must exist for a crime to be charged. This applies to serious crimes, so not all offenses, like traffic violations, require any intent at all.
The typical levels of mens rea found in criminal law include intentionally, knowingly, and negligently along with other similar terms like willingly and voluntarily. The antiquated common law definition of murder required “malice aforethought.” Before someone can use the excuse “I didn’t mean to hurt anybody”, they should take note of the issue of criminal negligence which says that if a person acts in a way that is likely or foreseeably harmful it constitutes a level of criminal intent. Failing to do something required by law can be intent by omission.
The mens rea is the intent, not the motive. For example, a person enters a bank threatening the teller with harm to persuade the teller to give over the bank’s money. Why did the robber want the money? The answer is that it doesn’t matter. Maybe he needed cash for his momma’s cataract surgery. Maybe he had gambling debts to pay. Maybe he wanted to buy a Tesla Cybertruck. Those reasons would constitute the robber’s motive as opposed to his intent. His intent was to walk into the bank, threaten an employee, and walk out with money that he stole.
The why of a crime has great value to investigators and to jurors. The old motive, means, and opportunity formula can narrow down suspects, but in terms of cataloging what crime was committed the question of why has been irrelevant until recent times. Punishing thoughts, attitudes, and beliefs rather than behavior was not part of our legal structure until 1968 with the nation’s first hate crime law and the subsequent proliferation among the states.
Everyone agrees that no person should live in fear of being assaulted merely because of the color of their skin, their religion, or their sexual identity. But not everyone agrees that opening the door to prosecution of thought crime by criminalizing motive is in the public’s long-term best interests. The label of hate crime implies that there are some crimes whose recipe does not include hate. Assault is assault and murder is murder. Certainly, there is value in signaling to those who would do violence against another for a victim’s belief, status, or appearance but as with all legislation, there is a slippery slope.
Most bias crimes consist of penalty enhancements for acts of violence or property damage. Many factors are considered during the sentencing phase after any criminal conviction. It is there that motive may be appropriately considered. Much of the population already believes that hateful speech is against the law. This chilling acceptance can lead to the shutting down of pen, press, and pulpit where objectionable opinions are voiced. And, of course, what is deemed objectionable is subject to whims of politics. The US Supreme Court has made it clear that our Constitutional Right to speak freely protects even vile speech unless it leads to imminent lawless action.
As we observe what appears to be an increasing leniency among legislators, judges, and prosecutors can we trace this trend to the focus on motive rather than intent? While bias might enhance an offense, would excuses discount it? If a person is struck in the head by a rock, do they care what the motive of the thrower was? Should justice care if the assailant was having a bad life or is an addict? What if they said they were sorry or didn’t mean to throw it that hard? Violent crime already disproportionately affects certain disadvantaged groups. Maybe all crime is hate crime.