Understanding Intent (Dolo) in Criminal Liability
Forms of Guilt in Criminal Law
Among the most burdensome forms of guilt is intent (dolo). Generally, all crimes described in the Penal Code are considered malicious (intentional), with the exception of reckless or negligent crimes (culpa), which are typically less severe. However, between intent (dolo) and negligence (culpa – note that recklessness and blame are often synonymous terms in the Penal Code), there are several scales of responsibility. Responsibility is graduated within intentional (willful) and reckless acts, depending on the specifics of the case.
Key Forms of Guilt
- Intent (Dolo): Characterized by cognitive and volitional elements.
- Recklessness or Negligence (Culpa): Involves a lack of due care.
Intent (Dolo): Components and Classes
Elements of Intent (Dolo)
Intent comprises two core elements:
Cognitive Element
This refers to the subject’s awareness of the factual elements constituting the offense and the unlawfulness of the action. It encompasses the subject’s understanding of what they are doing and the illicit nature of their actions. This knowledge must cover the potential consequences arising from their behavior. For result-based crimes, the intent must also cover the causation and the specific outcome. Any significant deficiency in this cognitive understanding can negate or diminish the finding of intent.
Knowledge of the Elements of the Offence: This is the understanding that an average person, without specialized legal training, would possess. It means grasping the essence of the prohibited conduct. It does not require knowledge of the precise technical or legal definitions but rather an approximate understanding of what the law forbids. For example, a person doesn’t need to know the legal definition of homicide; knowing they are intentionally taking another person’s life in an advantageous manner is sufficient.
Knowledge of the Unlawfulness of the Action: This also requires only a layperson’s understanding, not technical legal knowledge. It is sufficient for the subject to know they are doing something forbidden. This includes awareness regarding the absence of any grounds for justification.
Volitional Element
For conduct to be intentional (dolo), it is not enough for the person to know what they are doing and that it is forbidden; they must also voluntarily choose to perform the action. The will must encompass all aspects covered by the cognitive element.
Classes of Intent (Dolo)
Based on the strength or nature of the volitional element, intent can be classified into different categories:
Direct Intent (Dolo Directo)
This category involves the subject’s primary aim being the realization of the criminal act.
First-Degree Direct Intent: The subject directly aims to commit the offense, regardless of whether the outcome is certain, probable, or merely possible. Example: A terrorist group (like ETA) places a bomb in the car of a specific person they intend to kill.
Second-Degree Direct Intent: The subject does not directly seek a particular result but accepts it as a necessary and unavoidable consequence of their intended action. Example: The terrorist group intends to kill the car’s owner but knows the car is driven by a chauffeur. They accept the chauffeur’s death as a necessary consequence of bombing the car, even if it wasn’t their primary goal. The chauffeur’s death constitutes second-degree direct intent.
Indirect Intent (Dolo Eventual)
This is the third category in terms of intensity. With indirect intent, the subject’s primary goal is not the specific harmful result, but they foresee it as a probable consequence of their actions and consciously accept that risk. The result is not seen as inevitably linked to the action, but the subject acknowledges the likelihood and proceeds anyway.
Example: The terrorist group knows their target passes by a school daily. They plan to detonate the bomb as the target passes the school, foreseeing the probability that other deaths (e.g., schoolchildren) might occur. Even if they don’t specifically desire these additional deaths, they accept the high probability of causing them. Similarly, if the target sometimes drives their child to school, and the group proceeds with the bombing knowing the child might be present, accepting the child’s potential death constitutes dolo eventual.