Intention is a significant factor in a number of political and legal situations at the moment.
Did outgoing President Trump “intend” to coerce the Georgia Secretary of State to commit a crime by altering or falsifying ballots?
Do certain members of the United States House of Representatives and Senate intend to execute a legislative coup by objecting to the results of the Electoral College. Do they and/or the outgoing President intend to incite riots and other violence on the part of Trump supporters?
Did Kyle Rittenhouse intend to murder two people in Kenosha, or was his intention purely self-defense, as he claims?
Did police officer Rusten Sheskey intend to kill Jacob Blake or was he acting in self-defense and in fear for his life?
Do states that reduce voting opportunities, purge voter registration rolls, impose onerous registration requirements, and gerrymander districts intend to deprive minority voters of their voting rights? Or are these states acting for some other reasons?
Do realtors and bankers and landlords who resist doing business with Black customers and customers of color intend to discriminate illegally, or do they intend simply to make more money?
In criminal law, intent is defined as a determination to perform a particular act or to act in a particular manner for a specific reason. Actual attorneys can speak to all the ins and outs of defining, determining, and proving intent. My problem is that it requires judges and juries, police and prosecutors, reporters and readers, to be experimental psychologists at least and mind readers at worst.
Without an extensive record of “intentional” statements and behavior, President Trump’s behavior will not meet a standard for criminal prosecution, no matter what the possible outcome might have been. Intent.
Without concrete admissions and/or a clear paper trail, members of the House and Senate will claim legal purity and even perhaps the moral high ground, no matter what the possible outcome might have been. Intent.
Without concrete evidence to the contrary, Rittenhouse and Sheskey will have scaffolds upon which to build a defense if necessary and to construct a righteous explanation if the opportunity presents itself. Intent.
States legislators are past masters at this game as they create systems of suppression to ensure that voters who are Black and people of color will be kept away from ballots as much as possible. Intent (or the lack thereof) has been used to justify reversals in the Voting Rights Act, the Fair Housing Act, affirmative action cases, and numerous other legal issues. Some judges have been quite willing to exercise their judicial mind-reading skills in a variety of settings.
Intent. It’s overrated at best and camouflage for crime too often.
We all do it. I didn’t intend to cause harm when I drove drunk, had an affair, embezzled that money, shoplifted that shirt. I didn’t mean to hurt anyone. I just wanted to do what I did. The difference is that you and I don’t get away with it, for the most part. In my world, intent may be heard, but outcomes are what counts.
After all, I’m glad you didn’t intend to hurt me. If you did, that would be another and far more difficult conversation. But it doesn’t change the hurt, the result, and the need for repair.
More and more however, we live in the non-apology world of apologies. “I’m sorry you feel that way” is not an apology. “Mistakes were made” is not an admission of responsibility. “It was not my intention to cause harm” is not a relief from responsibility.
Unless you live in a world where it is. And if you live in that world, you survive by learning how close to the edge of the cliff you can walk without falling. Our outgoing President is a master of such high-altitude obfuscation.
There are times when intent does matter and should matter. There are times when intent is clear and probative. I don’t want to let go of those times. But I would argue in the cases I list above that the bar for proving intent needs to be lowered significantly, and the emphasis on outcome regardless of intent needs to be increased.
I don’t expect judges and juries, police and prosecutors, reporters and readers, to be experimental psychologists and mind readers. I want them to look at outcomes more than intentions.
This is, after all, one of the keys to understanding and addressing racism as well. One of the chief points that Ibram X. Kendi makes in his work is that racist intent is not relevant. Outcomes and impacts determine if an action or a practice or a policy is racist. That gets us out of the mind-reading business and back into the justice business.
At the other end of the spectrum, we are also quite capable of disregarding even the ability to form an intention when delivering the death sentence. Lisa Montgomery was subjected to a lifetime of torture, sexual abuse, and physical violence. She was beaten so badly during one incestuous rape that she suffered a traumatic brain injury. She was gang-raped, prostituted, and threatened regularly with death.
Montgomery committed a horrific crime involving murder, mutilation, kidnapping, fraud, and several other offenses. There is no dispute about whether she did these things. But it is not the least bit clear that she was mentally capable of forming the intent required by law to result in the application of the death penalty. In this case, intent is trumped by outcome. And Trump is hurrying to carry out that sentence on January 12th.
Why is intention so critical in some cases and so disregarded in others? Isn’t that evidence enough to show that the role of intent is far too pronounced in how we determine culpability and responsibility?
I’m no lawyer, but I know something’s wrong when I see it.
For a recent story on the Lisa Montgomery case:
https://www.theguardian.com/world/2021/jan/05/lisa-montgomery-death-row-execution-history
The Acedic Lutheran 