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Philosophical Foundations of Language in the Law$
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Andrei Marmor and Scott Soames

Print publication date: 2011

Print ISBN-13: 9780199572380

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199572380.001.0001

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Trying to Kill the Dead: De Dicto and De Re Intention in Attempted Crimes

Trying to Kill the Dead: De Dicto and De Re Intention in Attempted Crimes

Chapter:
(p.184) 9 Trying to Kill the Dead: De Dicto and De Re Intention in Attempted Crimes
Source:
Philosophical Foundations of Language in the Law
Author(s):

Gideon Yaffe

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199572380.003.0009

Both theorists and practitioners of criminal law have offered accounts of the mental state with respect to the circumstantial elements of a completed crime that is required for an attempt of that crime. What attitude must one have to the age of one's victim, for instance, to attempt statutory rape? Must one believe the victim to be a minor, or simply recognize the possibility, or, alternatively, must one's intention commit one to its being so? Theorists and practitioners of criminal law have also offered answers to the question of whether the circumstantial elements of a completed crime must actually be in place for the attempt. Must the intended victim actually be underage for there to have been an attempted statutory rape? This chapter argues that much of the confusion over both issues can be resolved through careful application of a distinction from the philosophy of language, namely the distinction between the de dicto and the de re. To attempt a crime, the defendant must at least have a de re intention that commits him to the circumstantial elements of the completed crime. Some such intentions suffice for the mental element of attempt only if the relevant circumstantial element of the completed crime is actually in place.

Keywords:   attempt, intention, circumstantial elements of crimes, de re, de dicto

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