Transferred Malice: Historical Underpinnings of the Rule and Legal Arguments for Its Abrogation
| Published date | 01 December 2023 |
| DOI | http://doi.org/10.1177/00220183231191262 |
| Author | Pasquale Mastrolia |
| Date | 01 December 2023 |
Transferred Malice: Historical
Underpinnings of the Rule and Legal
Arguments for Its Abrogation
Pasquale Mastrolia
University of Pavia, Italy
Abstract
The history of transferred malice is as long as that of the offence of murder with respect to
how it was conceived and is traditionally applied. It ensures the maximum protection of human
life, transferring mens rea away from the intended victim of the offence to the actual victim.
The Italian Criminal Code in force places the rule in the ‘General Part’of the law, formally
enabling its application to every offence. The first part of this essay focuses on the develop-
ment of transferred malice across the earlier criminal codes of the Italian kingdoms. Then,
I present the highlights of the development of the academic debate at the time the criminal
code in force was drafted. Finally,I claim the rule should be repealed because of its contradic-
tion with European and domestic rules on victim protection and the strict liability principle in
criminal matters.
Keywords
Transferred malice, aberratio ictus, murder, aberratio delicti,victims’rights, legal theory, ne bis in idem,
strict liability
The Development of the LegalFramework of Aberratio Ictus:From
the Codes of Pre-Unitarian Italian States to the First Italian Criminal
Code
Francesco Carrara was an important scholar in the history of Italian criminal thought, and in his handbook
of criminal law in 1867, he stated:
If anyone, wishing to kill Cajo, kills Titius, it would be a mistake to hold him responsible for attempted murder
against Cajo, and for involuntary manslaughter against Titius. He is guilty of the murder of Titius: and this
murder is voluntary because the offender’s intent was directed to the death of a citizen, and he gained it.
1
Corresponding author:
Pasquale Mastrolia, Criminal Law, Universityof Pavia, Pavia, Italy.
E-mail: Pasquale.mastrolia01@universitadipavia.it
1.F Carrara, Programma del corso di diritto criminale. Parte generale (Tipografia Giunti 1867), 121.
Article
The Journal of Criminal Law
2023, Vol. 87(5-6) 344–354
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231191262
journals.sagepub.com/home/clj
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