Friday, March 8, 2013

Arkansas, Abortion, and Notion of Specific Intent

You might have heard about the "Heartbeat Protection Act" (SB 134), a bill recently passed by the Arkansas House of Representatives. (You can read about it here.) The bill is supposed to ban abortions after 12 weeks (barring special circumstances). Because this was crafted by the Arkansas House of Representatives, I thought there was a fair chance that it would contain some colossal cuss up.  I found the text of the bill (here) and I think I might have found the colossal cuss up.  

Here's what the bill would prohibit: 
A person authorized to perform abortions under Arkansas law shall 29 not perform an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human individual whose heartbeat has been detected under § 20-16-1303 and is twelve (12) weeks or greater gestation. 
Notice the phrase 'specific intent'.  My initial worry about the bill's language is this. In discussions of abortion in moral philosophy, a distinction is often drawn between what's foreseen and what's intended. A doctor could remove the fetus knowing that it would result in the death of the fetus without intending the fetus' death (e.g., if the doctor's purpose was to remove a cancerous uterus and this required removing the fetus).  If a doctor can remove the fetus without intending the the termination of the fetus' life, it would seem that the bill wouldn't prohibit abortions after 12 weeks of gestation.

Of course, moral philosophy is one thing and the law is something else entirely.  As a friend pointed out in a scholarly discussion of this (on Facebook), the law will often say that an agent did something intentionally so long as they did something knowingly. If you knew with practical certainty that something would result, that would be sufficient to establish that you did something intentionally (e.g., if you plant a bomb on a plane with the purpose of killing a rival but without hoping the injure the other passengers, you  would count as intentionally injuring or killing the other passengers if you knew with practical certainty that this would result).  

If that's the end of it, then maybe I didn't find the colossal cuss up.  It turns out that matters might be more complicated still.  The legislature used the phrase 'specific intent', and I've been told that there's a difference between specific and general intent in the law.  Here's a passage taken from United States v. Bailey, 444 (1980) (here) (Thanks to Andrew Wake):
At common law, crimes generally were classified as requiring either "general intent" or "specific intent." This venerable distinction, however, has been the source of a good deal of confusion. As one treatise explained:
    "Sometimes `general intent' is used in the same way as `criminal intent' to mean the general notion of mens rea, while `specific intent' is taken to mean the mental state required for a particular crime. Or, `general intent' may be used to encompass all forms of the mental state requirement, while `specific intent' is limited to the one mental state of intent. Another possibility is that `general intent' will be used to characterize an intent to do something on an undetermined occasion, and `specific intent' to denote an intent to do that thing at a particular time and place." W. LaFave & A. Scott, Handbook on Criminal Law 28, pp. 201-202 (1972) (footnotes omitted) (hereinafter LaFave & Scott). 
This ambiguity has led to a movement away from the traditional dichotomy of intent and toward an alternative analysis of mens rea. See id., at 202. This new approach, exemplified [444 U.S. 394, 404]   in the American Law Institute's Model Penal Code, is based on two principles. First, the ambiguous and elastic term "intent" is replaced with a hierarchy of culpable states of mind. The different levels in this hierarchy are commonly identified, in descending order of culpability, as purpose, knowledge, recklessness, and negligence. See LaFave & Scott 194; Model Penal Code 2.02. Perhaps the most significant, and most esoteric, distinction drawn by this analysis is that between the mental states of "purpose" and "knowledge." As we pointed out in United States v. United States Gypsum Co., 438 U.S. 422, 445 (1978), a person who causes a particular result is said to act purposefully if "`he consciously desires that result, whatever the likelihood of that result happening from his conduct,'" while he is said to act knowingly if he is aware "`that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.'"
So, maybe this dog will hunt. If specific intent requires conscious purpose or desire and a doctor can perform an abortion without the conscious purpose or desire to terminate the life of the fetus, there might be a problem with the bill after all. Or, maybe not. I'm not an expert.  That's what the comments box is for. 


Anonymous said...

But why read "specific intent" as "purpose," much less as "purpose" as defined by the MPC?

Andrew said...

I should say, first, that I'm not a lawyer or a legal expert. It does seem to me, though, that the statute requires that one violates the act only if one consciously desires the death of the fetus.

First, that reading seems to accord with the meaning of 'specific intent' when it is used to pick out a mens rea. Here are some examples:

There are a variety of lower court cases that say roughly the same thing, but U.S. v. Bailey is, as far as I know, the only Supreme Court case:

In a general sense, “purpose” corresponds loosely with the common-law concept of specific intent, while “knowledge” corresponds loosely with the concept of general intent. United States v. Bailey, 444 U.S. 394, 405 (1980).

Here's Corpus Juris Secundum:

A crime may consist of an act combined with a specific intent, which means more than a mere general intent to commit the act. A person acts with specific intent when his or her conscious objective is to cause the specific result proscribed by the statute defining the offense. 22 C.J.S. Criminal Law § 40.

Here's American Jurisprudence:

“Specific intent” is a term used in the criminal law to describe a state of mind that exists where circumstances indicate that an offender actively desired certain criminal consequences, or objectively desired a specific result to follow his act or failure to act. A “specific-intent” crime is one in which an act was committed voluntarily and purposely with specific intent to do something the law forbids; the defendant acts not only with knowledge of what he or she is doing, but also does so with the objective of completing some unlawful act. That is, a specific-intent crime requires not simply the general intent to do the immediate act with no particular, clear, or undifferentiated end in mind, but the additional deliberate and conscious purpose or design of accomplishing a very specific and more remote result; mere knowledge that a result is substantially certain to follow from one's actions is not the same as the specific intent or desire to achieve that result. 21 Am. Jur. 2d Criminal Law § 119.

There is another common (though, less common now) use of 'specific intent'. At common law, a general intent crime was any crime that did't require any particular mental state for any element of the crime. Rather, one could be convicted of the crime so long as one had a general "ill will". A specific intent crime, by contrast, required some specific mental state for some element of the crime.

It makes no sense (as far as I can tell) to apply this sense of 'specific intent' as a means of introducing a mens rea for an element of a crime, though. In this sense of 'specific intent', it is an adjective applied only to statutes.