Required Mental States

Required Mental States

When injury actually results, paragraph (a) asks a second question beyond whether the victim was hurt: what was in the defendant's mind when the injury was caused. The paragraph answers in its own wording, because the three mental states it lists, purpose, knowledge, and recklessness, sit directly in front of the phrase "causes bodily injury to another."¹ That placement follows from how criminal blame works. Liability is meant to track culpability, and culpability is measured by the mental state the defendant held toward each material element of the offense, while the bare movement of the body that started events says little about it.² A defendant who aimed at hurting, one who was sure that hurt would follow, and one who knowingly gambled on hurt differ in degree of blame, and the Code treats each as enough for the completed offense.

The mental state attaches to the result, which here is the injury, and the Code's general scheme explains why. A single offense may be built from an act, surrounding circumstances, and a result, and the fault required toward each can differ.³ The Code also supplies a default for a statute that states one culpability term without distinguishing among the elements: the term applies to every material element unless a contrary purpose plainly appears.⁴ Paragraph (a) leaves little doubt, since its mental states modify the very verb that produces the injury. The prosecution must therefore show that the defendant purposely, knowingly, or recklessly caused the injury, and proof that the defendant meant to swing an arm, close a door, or move a chair does not reach that element. Students lose this issue when they treat an intentional act that happens to injure as an intentional injury. The reason for the rule is that a defendant who meant only a harmless contact, and who saw no risk of anything worse, has not done what the punishment for injuring people is reserved for, and liability would otherwise turn on bad luck instead of fault.

A civil case shows the same discipline from the tort side. In Garratt v. Dailey, a five-year-old moved a lawn chair, and an adult who started to sit down where the chair had been fell and fractured her hip.⁵ Moving the chair was a conceded voluntary act, yet the Washington Supreme Court held that a battery would be established only with proof that the boy moved it knowing with substantial certainty that the adult would try to sit there.⁶ The court added, quoting the Restatement, that realizing even a very grave risk may make conduct negligent or reckless but does not supply the required intent without that certainty.⁷ The Code reaches further on one point, because paragraph (a) lists recklessness beside purpose and knowledge. A defendant who consciously disregards a substantial and unjustifiable risk of injury can therefore be convicted of the completed offense even though the tort definition of intent in Garratt would stop short of that defendant.⁸

All three states are subjective, meaning they ask what the defendant actually perceived and not what a reasonable person would have perceived. Recklessness makes the point most sharply, since it requires that the defendant was actually aware of the risk, and a defendant who should have been aware but was not does not qualify.⁹ The standard exists because punishment for causing injury is reserved for actors who consciously aimed at harm, expected it, or knowingly gambled on it. A rule that reached risks the defendant never noticed would convict people for inattentiveness. Because the mental state is an element, the prosecution must prove it beyond a reasonable doubt, and a subjective mental state is generally proved only circumstantially.¹⁰ On an exam stem, the facts that matter are therefore the ones that reveal the defendant's mind: what the defendant said, what was aimed at, how hard the blow was, and what the defendant could see beforehand.

Negligence is the culpability level missing from the list. The Code recognizes four types of fault, and negligence is the objective one: it turns on whether the actor created an unreasonable risk, and the actor need not have realized the risk.¹¹ Paragraph (a) names the first three types and omits the fourth, so a defendant who injures someone carelessly, without awareness of the risk, has not committed the completed offense under this paragraph.¹² The one place where negligence suffices in this Code section, injury caused with a deadly weapon, appears later under neighboring offenses.

The mental state must also match the result the paragraph names, which is bodily injury (the pain, illness, or impairment defined in the previous section), and it need not match anything more severe. A defendant who shoves a rival intending to cause pain acted purposely as to bodily injury, even if the hope was for nothing worse than a sore hip.¹³ The same matching test applies to any statute drafted around a more severe harm: there the defendant's mental state would have to be directed at that severe result. The line between this base harm and serious bodily injury is a grading question taken up later in this chapter.

The three states are taught next from most to least culpable, beginning with purpose, where causing the injury is the defendant's conscious object.

Purposely Causing Injury

Purpose is the highest of the three mental states in paragraph (a), and it is fixed by what the defendant was trying to accomplish. The Code defines acting purposely toward a material element as having a "conscious object" either to engage in conduct of that nature or "to cause such a result."¹⁵ Bodily injury is the result element of paragraph (a), so the question for purpose is whether causing physical pain, illness, or impairment was something the defendant consciously set out to bring about.¹⁶ An object in this sense is a thing aimed at, an end the defendant is working toward. A useful picture is that a defendant who acts purposely as to injury would regard the conduct as having missed its mark if the victim walked away unhurt.

The Code looks at the goal because the movement of the body says little about how blameworthy it was. Two people can swing an arm in identical fashion, one to clear a path through a crowd and the other to hurt the person standing in the way. The second has chosen the injury as the point of the act, so the harm is that defendant's own project and not a byproduct of some other project, and that choice is why purpose ranks highest in blame. The definition also asks what the defendant sought and not why the defendant sought it. A defendant who hurts someone to settle a grudge or to collect a debt acts purposely in either case, because the injury was the conscious object whatever the motive behind it.

Purpose is measured against the injury paragraph (a) names, so an aim at something graver satisfies it. A person who sets out to do serious bodily harm necessarily sets out to do bodily harm, since the lesser harm is contained in the greater. A defendant who swings a bottle intending to break a man's arm therefore acts purposely as to bodily injury even if the blow lands as a bruise.¹⁷

A civil case isolates the difference between an act and an aim. In Garratt v. Dailey, a five-year-old moved a lawn chair, and on the trial court's findings he moved it to sit in it and only then discovered the plaintiff about to sit where it had been. The Washington Supreme Court observed that had he moved the chair while she was in the act of sitting down, his act would patently have been for the purpose of causing her to strike the ground.¹⁸ The movement of the chair is identical in both versions, and the defendant's aim is the whole difference. That case concerns offensive contact in a tort, while paragraph (a) concerns injury, but the analysis proceeds the same way: identify what the actor was trying to bring about.

Purpose is also a fact about the defendant's own aim, which means it does not depend on whether the plan was likely to work. In State v. Smith, a New Jersey appellate court reviewed an attempted murder conviction of a defendant infected with HIV who had bitten an officer. It approved a charge telling jurors that the question was whether the defendant's purpose was to kill by biting, whatever the odds that a bite could transmit the virus.¹⁹ The court added that it was enough that the defendant himself believed he could cause death by biting and intended to do so.²⁰ An unlikely plan therefore does not erase purpose, and the attempt clause of paragraph (a), taught below, applies the same reasoning to a defendant whose blow misses.

Because no one can observe an aim directly, purpose is ordinarily proved from circumstances: what the defendant said before or during the encounter, the nature of the blow, the part of the body targeted, any weapon used, and the history between the two people. A hard strike with a bottle at the head, delivered after a threat, supports an inference that injury was the object, while a brush of the shoulder on the way to an exit supports none. Students lose points when they infer purpose from the injury alone, because a bruise is what deliberate and accidental blows alike leave behind, and only the circumstances around the contact separate them.

The doorway defendant is not necessarily free of liability, because paragraph (a) lists two lower mental states, but purpose does not supply it. The next section takes up knowledge, the state that reaches an actor who did not aim at injury.

Knowingly Causing Injury

Knowledge, the second mental state in paragraph (a), reaches the defendant whom purpose leaves out: the actor whose goal lay somewhere else but who understood that injury would follow from what the actor was doing. For a result element such as bodily injury, the Code asks whether the defendant was aware that it was "practically certain" that the conduct would cause the result.²² Three features of that definition carry the weight. The awareness must be actual, so the question is again what this defendant perceived, and not what a careful person would have noticed. The degree of certainty must be high, though practical certainty stops short of absolute certainty, since almost nothing in the physical world is guaranteed. And the awareness must be directed at the result the paragraph names, so the defendant must have been practically sure that physical pain, illness, or impairment of physical condition would result.²³

The reason for including knowledge shows up when you consider what the paragraph would look like without it. A person charged with injuring another can almost always say that hurting the victim was not the point, because the real aim was to get away, to finish a task, or to settle some other matter. If paragraph (a) reached only conscious aims, that statement would end the case, and a defendant who slams a door on a hand to keep its owner from following would escape the completed offense simply by having been in a hurry. The Code closes that exit by treating practical certainty as enough. An actor who is that sure of the result goes ahead with the harm squarely in view, so the harm becomes a cost the actor is willing to impose, and the blame comes close to that of an actor who wanted it. Students lose this issue when they treat the absence of any wish to hurt as the absence of a culpable mental state, because paragraph (a) asks about awareness of the result as well as desire for it.

A civil case shows knowledge doing the work that purpose cannot. In Garratt v. Dailey, the Washington Supreme Court stated the intent needed for battery as acting either for the purpose of causing the contact or with knowledge that the contact is substantially certain to result.²⁴ The court then applied the second route to a five-year-old who, on the trial court's findings, moved a lawn chair only to sit in it. It held that a battery would still be established if he moved the chair knowing with substantial certainty that the plaintiff would try to sit where it had been, and that the absence of any intent to injure, embarrass, or play a prank would not absolve him if he had that knowledge.²⁵ Because the findings did not settle that question, the court remanded for a finding on it, and it treated the child's age as relevant only to what he knew, since his experience, capacity, and understanding bear on what he could have been aware of.²⁶ That last step confirms that knowledge is a fact about the particular defendant's mind. The tort standard concerns contact and speaks of substantial certainty, while the Code speaks of practical certainty about injury, so the case is a close analogue and does not supply the Code's wording.

The contrast with purpose is therefore simple to state, since both defendants know what the door will do and only one of them wants it to do so. Under paragraph (a) either state suffices for the completed offense, which means the question that usually decides a fact pattern is whether the defendant's awareness reached practical certainty at all.

The line below knowledge is drawn by degree of certainty. A defendant who sees injury only as a serious possibility has not reached practical certainty, although consciously disregarding a substantial and unjustifiable risk can still satisfy the next and lowest mental state in the paragraph.²⁷ Because no one can observe awareness directly, the facts that matter on an exam stem are the ones that reveal what the defendant could perceive: whether the victim was visible, whether anyone warned the defendant, how close the victim stood to the force, and how obvious the consequence of the act was.

Recklessly Causing Injury

Recklessness is the lowest mental state that paragraph (a) accepts for the completed offense. It reaches the defendant who neither aimed at injury nor was practically certain of it, yet went ahead with an injury risk in plain view. The Code defines a reckless actor as one who consciously disregards a substantial and unjustifiable risk that the result will occur, and it adds that the disregard must be a gross deviation from the conduct a law-abiding person would observe in the actor's situation.²⁹ For paragraph (a), the risk in question is a risk of bodily injury, meaning physical pain, illness, or impairment of physical condition. The definition has two parts that do different jobs. The first is awareness, a fact about what the defendant perceived, and the second is gross deviation, a measure of how serious the defendant's decision to run the risk was.

The awareness part is subjective, which means it is measured by what this defendant actually perceived and not by what a careful person would have perceived. A prosecutor must therefore prove that the defendant was actually aware of the risk, and proof that the defendant should have been aware does not meet the standard.³⁰ The reason lies in what criminal blame attaches to. A defendant who sees that an act may hurt someone and proceeds anyway has made a choice, putting another person's safety at stake for the sake of the defendant's own purposes, and that choice is what paragraph (a) punishes at its lowest level. A defendant who never saw the danger made no such choice, so the failing is inattention, which is negligence. Ordinary carelessness of that kind is generally left to civil liability, and paragraph (b), taught below, marks the one setting, injury with a deadly weapon, where the Code lets negligence suffice.

The two scenes differ in a single variable, the defendant's awareness of the risk, and that variable decides the outcome. Students lose this issue when they treat what the defendant should have noticed as though it were what the defendant did notice, because a cut or a bruise proves that a risk existed and says nothing about whether the defendant saw it. On an exam stem, the facts worth looking for are the ones that reveal perception: whether the victim was in view, whether anyone gave a warning, and whether the defendant's own words or conduct show an understanding of the danger.

Recklessness sits below knowledge, and the line between them is a line of degree. Knowledge requires awareness that injury is practically certain, while recklessness requires only awareness of a substantial risk, a probability that falls short of certainty.³¹ Garratt v. Dailey marks a parallel boundary in tort law. The Washington Supreme Court quoted a Restatement comment explaining that an actor who appreciates even a very grave risk of contact has not thereby intended it, because such a realization may make the conduct negligent or even reckless, and intent requires realizing that the contact is substantially certain.³² The setting there is a battery in tort, so the case supplies the boundary and not the Code's wording. It still shows why a defendant who recognizes only a serious chance of harm belongs in recklessness, or lower, and not in knowledge.

Because the awareness runs to the risk of bodily injury, it does not have to run to a particular victim or to the exact harm that follows. A defendant who throws a relatively small stone in the vicinity of another person, with no intent to hit, creates a risk of injury and is reckless as to injury if the stone lands on that person.³³ The same reasoning reaches a defendant who fires in the general direction of a person known to be there and hits a bystander the defendant did not see but should have seen. Some analyses call this transferred recklessness, and others say more simply that the defendant is the legal cause of the bystander's injury. On either view, the conscious disregard of the danger to the known person supplies the culpable mental state.³⁴

The second part of the definition screens out risks that the defendant saw but that do not deserve criminal blame. The risk must be substantial, so a remote chance of injury does not count, and it must be unjustifiable, so a risk that people are expected to run for good reason, as in a medically necessary operation, does not count either.³⁵ Even a substantial and unjustifiable risk satisfies the definition only if disregarding it is a gross deviation from how a law-abiding person would act, and that requirement measures the seriousness of the defendant's choice.³⁶ Without these filters, every consciously run risk of injury, such as carrying a hot dish through a crowded kitchen, would become a crime whenever something went wrong, and the paragraph would punish the ordinary give-and-take of daily life. With them, the paragraph stays aimed at the defendant who sees a real danger and treats it as acceptable.

With purpose, knowledge, and recklessness in hand, every way of proving the completed offense under paragraph (a) has been covered. The next section turns to the attempt clause, which reaches the defendant who tries to cause bodily injury and fails.