Herbert L. Rosedale, Esq.
Parker Chapin Flattau & Klimpl
New York, NY
The concept of intent rears its head in so many areas of the law that it is difficult to categorize and organize them coherently. In the criminal area, for example, intent is central to evaluating actors' capacity, the voluntariness of their actions, and whether their actions are so socially abhorrent that punishment is enhanced. In the civil area, issues include the imposition of punitive damages for "malicious" acts, claims of exculpation because of deception or coercion, questions relating to the implications of intent that may be permissibly inferred from action, interpersonal consequences that may vitiate intent through authoritarian control, and the legal implications of shared intent in a common plan or enterprise. Finally, in certain situations social values affect the analysis of intent. For example, legal responsibility for acts violating certain social values may be eliminated, regardless of the intent, in order to protect other social values, e.g., absolving infants (i.e., minors) from responsibility for the consequences of certain of their actions, or nullifying the responsibility for the consequences of an intentional act if committed under undue influence.
Thus, the analysis of intent involves two related but distinct legal concepts: liability and exculpability. Liability refers to the law's deeming individuals responsible for the consequences of their action. Exculpability refers to situations in which overriding social values nullify or diminish the liability actors would have under other circumstances.
In approaching many of these areas, legal issues are traditionally phrased in absolute, all-or-nothing terms. Using a mechanical test, an act is either determined to be willful, in which case the actor is fully liable, or it is unintentional, in which case the actor may be excused from civil responsibility. Testators (persons who have made a will), for example, are deemed either to have sufficient capacity to understand the nature and consequences of their action, or their will is a nullity. Either persons are excused from the consequences of their act because they were defrauded and reasonably relied upon a misrepresentation, or they bear the full legal consequences of their action.
Such an approach is often simplistic. The compulsion to reach an all-or-nothing, yes-or-no answer ignores the reality of complex or mixed motivation on the part of actors and the importance of social values and context in reaching a legal conclusion, regardless of the volitional capacity or desire of actors. The abandonment of the either-or approach to resolution of questions of intent would advance case analysis by openly addressing the social values determining liability for the consequences of a particular action. Rather than viewing questions of intent as solvable through all-or-nothing categorization, I submit that the analysis of interpersonal relationships, values, and consequences will be far more helpful in reaching legal conclusions to which intent is traditionally deemed relevant.
Part of the genesis of my first speculations concerning these issues arose from the consideration of the concepts of consent, waiver, and ratification raised in many cult-related tort cases. The mechanistic assurance of those observers who seem easily able to predict actors' mental states from their behavior is unnerving and evidenced by a series of platitudes: If persons were really unhappy, they would leave. If they appear satisfied and report no conflict or distress, they are not suffering any unconsenting infringement of rights. If they report that they were not defrauded, that is the whole truth. How simple! Yet it became evident to me that it was not simple, that these presentations were simplistic. People reporting a set of facts or acting in a particular way at one time were acting and reporting differently at a later time. Inferences about their intents and states of mind were by no means as simple as were being portrayed.
This paper does not intend to resolve the many issues that arise from consideration of intent. The paper is intended as a provocation. It examines actual and inferred, or implied, intent, in order to illustrate how actors' liability can be enhanced or diminished, how actors can be exculpated from the consequences of their actions, and how occasionally the concept of intent is abandoned when dealing with legal responsibility. Lawyers and mental health professionals concerned about volitional analysis and its role in the law can, I believe, benefit from this examination of intent.
Classification of the Liability of Actors
In extreme cases, the law enhances liability for an act if it is deemed to have certain abhorrent characteristics, in which cases courts may infer that the acting party had a "depraved mind." As a result of this conclusion, criminal penalties or civil consequences of an action may be enhanced in order to express society's outrage and to deter others. In the criminal area, penalties may be enhanced by changing the classification of the crime. In the civil area, in addition to the award of compensatory damages to the injured party, actors may find themselves subject to exemplary or punitive damages for a willful or malicious act or one which is committed in reckless disregard of appropriate social values. Enhancement of the level of responsibility is often accompanied by a pejorative characterization of actors' conduct: for example, it may be called "wanton," "willful," "aggravated," or "outrageous." In each of these circumstances, however, it is not the malevolent intent of the actor that we are punishing or truly examining, it is the violated social value that we are attempting to protect by deterring another's conduct in the future. Despite the language used to enhance liability, the examination of intent is, in fact, an obfuscation of the true basis of a desired legal conclusion.
In another field of the law concerned with determining actors' liability, intent is often used as a criterion to ascertain the extent to which the act of one person may be attributed to another. Determination of the liability of an employer for the acts of its employee, for example, involves the intent of the employer as evidenced in setting out the boundaries of the relationship. Similar questions arise with regard to delegation of authority, e.g., an employee's unknowing transport of his employer's contraband. Here again, there is no true intent. Intent is essentially fictional, a term used for defining the scope of responsibility.
Another area in which the seemingly fictional nature of intent is clear is that of legally implied intent. For an individual, this case arises in determining questions of negligence. The law measures conduct by using a standard of reasonability and prudence. It implies on the part of an actor the intent to achieve the foreseeable consequences of an act. No volitional analysis is undertaken to see if the person actually contemplated those results. Rather, they are imposed by implication of the necessary state of mind. Variations of this implication occur when the level of intent deviates from that of an ordinary prudent man or woman to determine if the conduct should be the subject of enhanced liability. In those latter circumstances, an examination of the volition of individuals may be undertaken to determine whether his special knowledge and proclivities would aid in the finding of a particular intent different from that of the implied, ordinary standard.
Finally, classifications with respect to joint liability often require examination of intent or at least are phrased as if they did. Are parties bound together in a common plan? Did they share a common intent and purpose? If so, they may be jointly liable. Was one an active participant and the other passive? If so, their liability may be apportioned. Is a volitional examination necessary to determine whether actions for which the actors are sought to be held responsible were outside their initial contemplation? Could it have been reasonably foreseen that events would take that turn and if so, should liability be fastened upon them through the vehicle of implied intent? In each of these instances, again, the process of answering the question of intent is not solely or largely focused on psychological examination of the actor but rather on the social desirability of holding the actor accountable, or allocating responsibility for the consequences of the action.
Classification of Exculpation
Language analyzing or purporting to explain intent likewise appears in situations in which the actors seek to avoid or diminish liability for an act. In the first general area, actors sometimes seek to avoid or diminish liability by reducing or eliminating the intent and character of an act so as to make it casual, erroneous, or fortuitous. In those circumstances diminution of liability may be based on consideration of human fallibility, for which no response may be assessed. In other instances, diminution may be achieved by establishing a mixture of motivation and by introducing evidence of multiple causation of behavior. An act may not be deemed malicious or aggravated if a neutral justification or explanation derived from the setting or history of the act is inconsistent with a malevolent motive. In other instances, liability can be transferred from the actor to another through implication or through authority asserted in interpersonal relationships. An agent may seek discharge from responsibility by fastening responsibility on his principal, regardless of the agent's intent in committing the act.
Sometimes rather than diminution, total negation of liability is sought through a defense such as fraud or misrepresentation. In those situations, it is very clear that the law conducts a full inquiry, looking at the particular characteristics of actors and the parties acting upon them. Actors' state of knowledge is relevant in determining the reasonability of their relying upon a false representation. Sophisticated investors, for example, are treated differently from widows and orphans in securities cases. Cases which involve deception or manipulation look at gullibility and impairment of capacity of the object of the fraud, as well as the conduct of the inducer. In some areas of tort law, this is explicit. A basis for civil liability may expressly be identified as "outrageous" conduct "without justification" or "intentional infliction of emotional distress" or "intentional interference with an economic advantage without justification." In those instances, the law recognizes that on the one hand there must be "intent," which is often implied from the action, but on the other hand there is a countervailing social value which may negate the legal consequences of that action and exculpate the actor from liability. If, for example, an officer of a corporation seeks to obtain the benefit of a contract for his company by underbidding and thus depriving a competitor of an economic gain, that act, although intentional and inflicting injury on a third party, will not be a subject of liability on the part of a corporate officer. The result changes, however, when that corporate officer seeks his own personal advantage and gain and uses a misrepresentation to cause the competitor to lose the contract. Suddenly, economically motivated conduct with the same intent subjects the actor to liability.
Negation of liability likewise exists through the protection of certain social values. We insulate infants (i.e., minors) from civil liability arising out of certain of their contractual relations, and their intent is irrelevant because of their legal incapacity. Indeed, the law continually wavers around the limitations of incapacity arising from infancy and the extent of insulation from responsibility for acts which may injure another. The law treats persons with diminished capacity in a manner which may vitiate their intent. It treats those who are insane in a different manner when dealing with their volitional acts without an examination of their intent in committing a particular act. It does not, however, extend that ambit of protection to the merely careless.
Recognizing the social values in establishing exculpation in the face of intent and action merely emphasizes the contextual relevance of analyses of intent and its subordination to other factors in a complex field. Ultimately, the law recognizes the value of the individual's independent and voluntary capacity when it protects him against the consequence of a coerced act or act committed under duress. Here, regardless of whether the act is intended, its consequences are a nullity for the actor and legal responsibility may be shifted to the party administering the coercion, or duress, or exercising the undue influence. Transferability of intent is not easily monitored in such circumstances and involves two different policies. One protects the coerced person; the second transfers liability to the person administering the coercion. The scope may be different when applied to the two and the existence of such differences merely again reinforces the limitations of a mechanistic view of intent.
Social Values and Intent
In some instances the law has simply abandoned intent and replaced it with overt assignment of legal responsibility, e.g., "no fault" liability insurance. Imposition of strict liability as the consequence of action regardless of the absence of intent to injure evidences social desire to allocate the risk to the actor and away from the victim. Conversely, simple intent has been abandoned where protection of certain vital rights are involved. Heightened requirements are added by establishing qualifiers to the concept of consent (such as "informed" consent) so as to make clear the use of broad volitional inquiry. Similarly, in applying the doctrines of waiver or ratification, proof requires full examination in order to establish the breadth of understanding supporting the asserted waiver or ratification. Indeed, certain waivers may be nullified regardless of the intent of the actor.
In many instances, including those involving coercive psychological influence, the search for a mechanistic correlation of action and intent is as unavailing as the search for the golden fleece. It is often an unwarranted diversion from the appropriate examination of pertinent social values. Figure 1, which presents a continuum of intent, illustrates how much evaluation of intent is intertwined with social judgments.
Fastening responsibility for action recognizes the social values we seek to protect, the conduct we seek to deter, and the costs we seek to impose. Risk allocation is a more open and ultimately productive method of legal analysis. Moving away from a purported analysis of intent is in effect distancing our system of law and justice from an ad hominem approach and progressing in the direction of a socially responsive one.
A Continuum of Intent
Intentional/Willful (goes up)----------Increasing Culpability
Negligent Increasing Exculpability-------goes down)
Herbert L. Rosedale, Esq., a partner in the New York City law firm of Parker Chapin Flattau & Klimpl, has studied cults for more than ten years. This paper was originally presented as part of a symposium on coercive psychological influence at the American Psychological Association's Annual Meeting, August 1989.