A Roll of the Dice with Life: Attempted Murder and the Ambiguity of Intent

In the architecture of criminal law, the crime of attempt occupies a fascinating and complex space. It seeks to punish those who have set out to commit a crime but have failed to see it through, whether due to chance, intervention, or incompetence. At its heart, an attempt requires two things: a criminal act (actus reus) that goes beyond mere preparation, and a criminal mind (mens rea) bent on completing the offense. But what happens when that criminal mind is not a vessel of clear, direct purpose, but rather one of callous indifference? This is the central question in a deep and persistent debate within criminal theory, particularly in German jurisprudence, concerning attempts to kill with what is known as indirect or eventual intention (dolus eventualis).

The Spectrum of Intent: From Aiming to Accepting

To grasp the problem, one must first understand that "intent" is not a monolithic concept. At one end of the spectrum is direct intent (dolus directus), where the perpetrator’s primary goal is the criminal outcome. A hired assassin who shoots to kill has direct intent.

A step removed is indirect intent of the second degree, where the outcome is not the primary goal but is understood as a certain consequence of achieving that goal. Imagine a person who blows up a plane to collect insurance on the cargo; while their goal is the insurance money, they know with certainty that the pilot will die. The pilot’s death is an intended consequence.

The most difficult category is dolus eventualis. Here, the perpetrator does not desire the criminal outcome, nor do they see it as a certainty. Instead, they recognize the outcome as a real and possible consequence of their actions and, critically, reconcile themselves to it. They proceed with their plan, essentially thinking, "If it happens, it happens." This is not mere negligence, where one fails to perceive a risk; this is a conscious acceptance of a foreseen risk. The classic example is the driver fleeing police at high speed through a crowded city street. Their goal is escape, but they foresee the possibility of hitting and killing a pedestrian. By continuing to drive recklessly, they accept that potential death as collateral damage.

The Conundrum: Can You "Attempt" a Side Effect?

The traditional understanding of a criminal attempt requires a firm decision to commit the crime. The very word "attempt" suggests a striving towards a specific goal. This creates a conceptual puzzle when applied to dolus eventualis. If a perpetrator's state of mind is merely one of accepting a possible outcome, can they truly be said to have the "intent to kill" required for an attempted murder charge? How can you try to achieve something you only see as a potential side effect of your actual goal?

This is where the debate ignites. A minority, more traditionalist view argues that you cannot. They contend that the mens rea for an attempt must be of a higher grade than for a completed crime. To be guilty of an attempt, the perpetrator must have the prohibited result as their direct goal or at least view it as a virtually certain consequence. From this perspective, a person acting with dolus eventualis has not formed the concrete "plan of action" to kill that is synonymous with an attempt. They may be guilty of aggravated assault or reckless endangerment, but not attempted murder.

The Doctrine of Possibility: The Prevailing German Approach

However, the dominant view in German legal theory and court practice advances a different solution, often referred to as the Doctrine of Possibility (Möglichkeitstheorie). This doctrine posits that the intent required for an attempt (Tatentschluss) is qualitatively the same as the intent required for the completed crime. Therefore, if dolus eventualis is sufficient to convict for a completed murder, it must also be sufficient to convict for an attempted one.

The argument is grounded in the subjective culpability of the perpetrator. According to this view, the moment the actor foresees the victim's death as a possible result and proceeds anyway, they have made a crucial decision. They have aligned their will with the potential criminal outcome. They have demonstrated a fundamental disregard for the protected legal interest—in this case, human life. From a moral and legal standpoint, their will is already bent toward the crime. The fact that the outcome was merely possible, rather than certain, in their mind does not diminish their culpability.

Let’s consider a hypothetical case. A man wants to burn down his failing business to commit insurance fraud. He knows that a security guard sometimes takes unauthorized naps in a back room. He doesn't know for sure if the guard is there tonight, but he considers it a real possibility. Deciding he cannot wait, he thinks, "If he's in there, that's just too bad," and sets the fire. Unbeknownst to him, the guard had already left. The fire is extinguished before the building is destroyed.

Under the Doctrine of Possibility, this is a clear case of attempted murder. The arsonist foresaw the guard's death as a possible consequence of his actions and reconciled himself to it. His decision to proceed demonstrated his acceptance of this possibility. The only thing that prevented a completed murder was fortune—the guard's absence. The perpetrator’s dangerousness and his criminal resolve were fully formed and acted upon. To treat this situation as anything less than an attempted murder would create an illogical "culpability gap," where the law fails to adequately address the gravity of the actor’s subjective evil. The preventive function of criminal law demands intervention against an individual who has demonstrated such a willingness to sacrifice human life for personal gain.

In essence, the prevailing German view holds that the law of attempt is not concerned with what the perpetrator hoped for, but with what they were willing to accept. When a person rolls the dice with another's life, the law does not wait to see how they land before judging the wickedness of the throw.