General and Specific Intent

Our first survey of general and specific intent crimes simply looks at the words of the statute to distinguish the two. Arson is a general intent crime. It prohibits conduct--lighting a house on fire. The crime does not require proof that the person acted in order to accomplish some future result. 

A specific intent crime, by contrast, involves intentional conduct plus an additional mental state—usually an intent to accomplish some future result. A person commits burglary when she enters premises with the specific intent to commit a felony therein. The conduct, enters, must be done intentionally, of course-- a normal mens rea requirement. But in addition, she must enter with the purpose of committing a felony. She does not have to commit that intended felony, however. If she is arrested a foot within the door, she is guilty of burglary. Obstruction of justice requires proof that the person destroyed documents with the intent to shield them from an ongoing investigation. 

Legislatures use specific intent elements to accomplish numerous goals. Sometimes they take otherwise lawful conduct and use the specific intent element to make it criminal. That’s because the same conduct can be lawful or unlawful depending on the purpose of the person carrying it out. In several states, it is generally lawful to possess a gun, but it is a crime to possess a gun with the intent to commit a crime—even if the person doesn’t commit the intended crime. In such as state, an armed person walking to the store to buy milk likely commits no crime; an armed person walking to the store to rob it does (even before he gets to the store).

A second reason legislatures use a specific intent element is, you guessed it, to grade crimes. We might grade burglary by degrees: entering with the specific intent to commit a felony would be a higher degree than entering to commit a misdemeanor.  

Specific intent crimes are everywhere. Many associate the term with the so-called “common law,” but the Model Penal Code of course recognizes the importance of specific intent crimes without using that term. Instead, it ranks specific intent as a type of attendant circumstance. But we will use the term “specific intent” because it identifies a category of attendant circumstance that must be recognized as its own category.

Later, we will take another look at specific intent in contrast to general intent crimes as they relate to the particular doctrine of mistake of fact defenses. In this context, specific intent really is unique to the common law and not an MPC doctrine. But for now, we will consider specific intent in its more general function as a legislative tool--under the common law, the MPC, and throughout state and federal statues--used to identify when certain conduct should be criminal or graded more seriously.

We almost always know whether a criminal statute is specific intent because it says so—conduct plus a specific intent to achieve some result. All we are doing in this section is first, understanding why a legislature would use this type of element and, second, learning how to prove the specific intent element has been met to a jury.