# Preterintention

Preterintention in criminal law is a legal institution representing a specific factual context: "This refers to when an act or an omission goes beyond the intention of the perpetrator who wanted to carry out a minor event". It derives from Latin 'praeter intentionem', which means "beyond intention".
Preterintentional offence may also be referred to as result-conditioned or consequentially aggravated. A common form of preterintentional offence is bodily harm resulting in death, in which the defendant intended to harm the victim but did not intend to kill.
Preterintentional offence as a distinct legal concept is found chiefly in penal systems of the civil law tradition. It arises from the legal principle under which a criminal intent created strict criminal liability for all resulting harm praeter intentionem. Other legal systems have limited a defendant's criminal liability to situations where the defendant negligently (Germany § 18 Stgb; Austria § Stgb) or recklessly caused the preterintentional harm.
Penal systems of the common law tradition generally do not use the concept etymological of preterintentionality, but some common law systems impose criminal penalties for praeter intentionem harms under imputation models such as felony murder or as involuntary manslaughter.

## History

Strict criminal liability for preterintentional offence can be traced back to the doctrine of "versari in re illicita", and found application both in the criminal law of ancient Rome, and in the canon law of the Roman Church.
In Roman law the perpetrator of a criminal act who unintentionally committed a more serious but causally connected offence was still punished for the preterintentional crime, without it being basically necessary to establish willfull intent to commit the more serious offence: it was sufficient to ascertain that the preterintentional outcome had been caused by an intentional act.

## Structural elements
### Intentional conduct

A preterintentional offence requires an intentional act or omission in violation of criminal law. However, this intentional criminal conduct does not have to be successful: a mere intentional attempt at offence can be sufficient. The judge can condemn the Agent for the preterintentional outcome caused by the intentional criminal conduct, even if only attempted. For example: A with a threatening attitude makes a sudden movement of his arms with a closed hand towards B, and the latter with a reflex movement avoids the blow but stumbles and, falling to the ground, hits his head and dies; the intended crime of assault against B is only attempted and not completed, but A is still responsible for the preterintentional homicide of B. A criminal attempt, in addition to being sufficient, is also indispensable for the agent to be convicted of a preterintentional offence: a conduct capable of causing death must logically be capable of injuring or beating.
Conversely, an attempted preterintentional offence is logically impossible: if the preterintentional event does not occur, there is no preterintentional offence, and the perpetrator is responsible only for the intended lesser offence, because that is the only offence they committed.
Because a subject cannot be punished twice for the same act, the penalty is determined taking into account both the offence intended and the preterintentional offence committed.

### State of mind

Some countries, in order to adapt preterintention to the principle of subjective responsibility (no one can be punished criminally unless as a result of voluntary or at without caution), consider preterintention as a form of mixed mental state: the intent supports the conduct of the lesser crime, and the criminal negligence supports the preterintentional consequence.
In other countries, faithful to the ontological nature of praeter intentionem, it is a form of intentional crime aggravated by the unintentional event which is attributed to the author even if theydid not want the event ultraintentional: thus introducing a form of objective responsibility.

## By type
### Preterintentional killing

The main example of this form of liability is preterintentional killing, which occurs when a person, with actions aimed at hitting or harming, unintentionally causes the death of a person: the agent will be liable for objective responsibility, or fault for the laws that require it, for the death event. For example: A argues with B and intentionally punches him, B falls to the ground and dies: A only wanted to punch him and absolutely did not want to kill him.
In praeterintentional homicide the term "killing" is used and not that of murder (as in intentional homicide): in order to underline the agent's unwillingness to kill.
Preterintentional homicide can mature under certain factual circumstances, and therefore the penalty will be aggravated according to the type of circumstance ascertained by the judge: for example, the Italian legislator regulates the aggravating circumstances of preterintentional killing in art. 585 penal code, and the French one in art. 222-8 penal code.

### Preterintentional abortion

Another hypothesis generally provided for by the law is preterintentional abortion, which occurs when the agent, with actions aimed at causing injury, causes, as an unintended effect, the interruption of pregnancy. For exmample, A argues with C and intentionally punches her, causing C to fall to the ground and miscarry. Tizio only wanted to punch C but did not want to cause the miscarriage of the child in her womb.

### Crimes aggravated by the event

Then there are the preterintentional offences in the broad sense: intentional crimes aggravated by an unwanted harmful or dangerous event, which reproduce the typical preterintentional criminal progression: intentional unlawful conduct that produces a more serious involuntary offence. For example: A intentionally slaps his daughter D, and D suffers serious injuries so much so that she goes to the hospital; in the following days D dies from complications from infections on the injuries sustained.

## By penal system

The concept of preterintentional offence is recognized by many countries:
* In French criminal law, examples of preterintentional offense, dol dépassé, include fatal violence under Article 222-7 of the penal code. As in many countries, this form of homicide receives a sentence that is midway in severity between negligent and intentional killing.
* In the German criminal code, preterintentional or "result-qualified" offenses, erfolgsqualifizierte Delikte, include the crimes of bodily harm resulting in death (§ 227 Stgb). Under German law a preterintentional offense requires at least a negligent state of mind (§18 Stgb).
* Under Italian law, Article 42 of the Italian Penal Code provides that preterintentional crimes cannot be punished unless expressly provided by law. The Code does provide for a punishment of ten to eighteen years for preterintentional homicide under Article 584 P.C. Preterintention is specified in Article 43 of the Code as a third culpable state of mind alongside negligence and intent, but preterintentional homicide is the only preterintentional crime defined in the Code.
* In Dutch criminal law, preterintentional offence include lethal injury: see art. 302 s.2 DPC.
* In Belgian Criminal Law: see Article 401 p.c., Deadly Violence.
Other legal systems that recognize preterintentional offenses: Colombia (Art. 24 penal code),Uruguay (Art. 18 penal code), Nuevo León (Art. 29 penal code), Ecuador (Art. 26 penal code), South Africa, Somalia (Art. 24 penal code)and Venezuela.
Some legal systems have rejected preterintentional offenses and the underlying doctrine of versari in re illicita, as reflecting a strict liability approach incompatible with modern constitutional guarantees: in some countries including Spain, Sweden, and Switzerland, preterintentional offenses have been split into their intentional and unintentional parts, and therefore defendants are charged with a voluntary crime for the intentional act (simultaneity offences), e.g. grave bodily harm, and an involuntary crime for the resulting unintended harm, e.g. negligent homicide.
Countries of the common law tradition have typically followed a comparatively flexible approach to specific cases of praeter intentionem offenses. In United States criminal law, depending on the state, ultraintentional offenses may include felony murder and voluntary manslaughter. In English criminal law the offenses beyond intention are generally punished where there is sufficient similarity between the intended crime and the result ultraintentional. This approach is justified based on the doctrines of "unforeseen mode", "mistaken object", and "transferred fault".