Intent, purpose, and premeditation in criminal law

In Norwegian criminal law, culpability plays a central role in determining criminal responsibility. The Norwegian Penal Code has not provided any definition of the concepts of intent, purpose, and negligence, leaving it to legal theory and practice to draw the boundaries. This article provides a thorough introduction to the concept of intent, its various forms and limitations, as well as an analysis of the terms purpose and premeditation.

The Concept of Intent in Norwegian Criminal Law

In everyday language, the expressions intent, purpose, and premeditation are often used interchangeably, but in criminal law, each of these terms has its specific technical meaning. Two main theories have historically been central to understanding intent: the will theory, which defines intent as the will to commit an act as described by the criminal statute, and the consciousness or imagination theory, which views intent as the awareness of committing such an act.

The real problem is drawing a boundary between the most blameworthy cases that fall under intent, and the less blameworthy ones that fall under negligence. Although intent is the starting point for criminal responsibility, legislation in some cases equates negligence with intent. This applies, for example, to sexual intercourse with children under 16 years, where a strict requirement for the offender's awareness of the child's age is imposed.

When Does Intent Exist?

Intended Consequence

Intent regarding a harmful consequence exists first when the consequence is intended – when the offender has had a desire to provoke the result by their action. This also applies when the offender initially regrets the consequence, but it is necessary as a means to a broader goal, for example, when someone kills a relative to inherit.

The size of the probability that the result will occur is irrelevant if there is intent. One who shoots at another to kill acts with homicidal intent even if the distance is so great that it's very uncertain whether the shot will hit.

Probability Intent

Intent also exists when the offender considers an unwanted consequence as certain or highly probable. An example is a person who sets their own house on fire to get the insurance payout but considers it certain or highly probable that the tenant will perish in the fire. Even if the offender does not want human life to be lost, they are nevertheless an intentional murderer when the act is carried out with awareness that this is likely to be the result.

The decisive factor is the probability the offender themselves reckons with, not the objective probability rate. In recent case law, it has been established that probability intent exists when the offender has deemed it more likely that the criminal result would occur than the opposite.

Dolus Eventualis – Consequence Seen as Possible

The most difficult cases arise when a criminal result has neither been intended nor foreseen as certain or highly probable, but has appeared as more or less possible to the offender. The starting point is that intent does not exist in these cases – the offender has taken a conscious risk, but this in itself is only enough to establish conscious negligence.

In Norwegian law, however, the Supreme Court has recognized a form of intent called dolus eventualis under the positive indifference theory. This form of intent exists when the offender has considered the possibility of the consequence and consciously decided to carry out the action even if the consequence were to occur. An example is a scrap dealer who considers the possibility that the goods he buys are stolen, but decides to go through with the purchase anyway.

The hypothetical indifference theory, which is based on an assessment of what the offender would have done if they had considered the consequence as certain, is explicitly rejected by the Supreme Court in Rt. 1991 p. 600.

Dolus eventualis under the positive indifference theory has limited practical significance but may be particularly relevant in drug cases. For example, in situations where a courier claims to have thought they were transporting hashish, not cocaine. If this version cannot be disproven, dolus eventualis can make it easier to prove intent in relation to cocaine.

Special Cases in the Doctrine of Intent

Necessary Side Effects

In some cases, it's uncertain if a consequence will occur, but the offender is aware that if the main goal is achieved, this consequence will necessarily occur as well. For example, if a terrorist places a bomb on a plane to kill a specific politician, they must reckon that the other passengers will also be killed if the attack succeeds. Here, intent will also exist with regard to the deaths of the other passengers, even if this consequence is neither intended nor considered highly probable in isolation.

Conscious Ignorance

A special case occurs when the offender deliberately refrains from acquiring information to be able to claim "good faith". In Rt. 1954 p. 20, a Home Guard soldier who ignored collecting a registered letter because he knew it contained a military summons, was convicted for intentionally failing to attend service. The Supreme Court stated that when he knowingly avoided learning about the summons because he did not want to appear, he could not claim lack of specific knowledge about the time and place of the appearance.

Indifference Cases

Another special case is when the offender is completely indifferent about whether the prohibited result occurs or not. If the offender has formed a conscious opinion about this, the situation falls under dolus eventualis according to the positive indifference theory. This has limited practical significance, as even if the result is itself indifferent to the offender, they will usually be interested in avoiding criminal responsibility.

Burden of Proof for Intent

No matter which legal criteria are applied, one often faces difficult evidence questions in practice when assessing intent. It involves mental processes that cannot be directly observed. If the offender does not confess, one must draw conclusions from the external circumstances to what happened in their mind.

For intent, a clear, bright consciousness is not required – the concept of intent also includes semi-clear, blurred intent. This is particularly relevant when the act is committed impulsively or under influence. But caution is advised in the assessment of evidence to avoid injustice.

It's a common misconception that mental deviations exclude intent. A psychotic person who kills someone in the belief that the victim is an enemy fulfills all elements that make the act a murder. The insane motivation will, however, lead to immunity from punishment under Penal Code § 44.

Purpose as a Form of Guilt

In some penal provisions, the law requires a specific purpose, and then probability intent is not sufficient. When the law requires purpose, it typically means that in addition to intent that covers the objective act element, it requires an extended purpose ("subjective excess").

For example, Penal Code § 161 sets a penalty for one who "with the purpose of committing a crime, acquires, manufactures, or keeps firearms, ammunition, or explosives". The most important group where a specific purpose is significant is property crimes, where the act must be committed with the purpose of obtaining an unjust gain for oneself or others. It is not necessary that the purpose is actually achieved.

Premeditation

Premeditation is different from purpose and involves an aggravating circumstance, especially in murder and severe bodily harm. A murder committed with premeditation allows for imprisonment up to 21 years (Penal Code § 233, 2nd paragraph).

Premeditation exists when the crime is committed as the result of a deliberate decision, not as an expression of an immediate impulse to act. The decisive factor is whether the offender has had time and opportunity for calm deliberation and has actually used this to consider the action. Even if a person has had time for deliberation, there is no premeditation if they in fact have not deliberated due to emotional turmoil or other circumstances that exclude calm deliberation.

It's important to note that purpose can exist without premeditation, and premeditation can exist without purpose. One who spontaneously has the idea to rob a person acts with purpose, but not with premeditation. On the other hand, a homeowner who sets the building on fire to get the insurance payout, but considers that tenants might perish, acts with premeditation but without murderous intent.

Special Provisions on the Degree of Guilt

In some penal provisions, the law uses expressions that raise the question of whether it requires ordinary intent or something more or less. When the law demands "reliable knowledge" (§ 139) or speaks of "a statement he knowingly made false" (§§ 165 and 166), this indicates something more than ordinary intent. Dolus eventualis is not sufficient in these cases, and a higher probability requirement is demanded than usual.

Correspondingly, when the law uses expressions such as "knowingly" (§§ 130 and 248) or "aware of" (§§ 149, 156 et al.), less than ordinary intent is probably required when the law only demands "reasonable ground to believe" (§ 155). It must be determined through interpretation of the individual penal provision whether the law, by the expressions used, deviates from the usual intent requirement.

Conclusion

The concept of intent in Norwegian criminal law is complex and encompasses several different situations. From intended consequences and cases where the consequence is considered highly probable, to borderline cases where the positive indifference theory applies. Purpose and premeditation represent special forms of subjective guilt with specific application areas in criminal law. Understanding these concepts is essential for the correct application of criminal legislation and ensuring a fair justice system.