Transferred Malice: Historical Underpinnings of the Rule and Legal Arguments for Its Abrogation

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 development 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 Finally, I claim the rule should be repealed because of its contradiction with European and domestic rules on victim protection and the strict liability principle in criminal matters.