Can I trick an innocent third party into doing something that would be illegal if the third party had mens rea without either of us being guilty?

Question

Lets say I want something to happen but doing it directly would be a crime. This is one crime that requires intent or mens rea.

So I hunt down an innocent third party, someone naïve, perhaps even a child, and I tell them they should go do some action X. I convince them it's a good thing to do and no harm will come, basically ensure they aren't guilty of the intent I have when I trick them into doing something.

Would using a naïve third party allow both the third party and me to get away with the action, since the person doing it lacks mens rea and the law doesn't explicitly make tricking someone else a crime? Or am I still considered to have committed the crime despite using a third party as an intermediary?

I'll accept answers for any common law location, though I'm mildly more interested in USA.

Answer 1

It depends on the jurisdiction, but generally speaking, this will not permit you to evade criminal responsibility.

In Ohio, for instance, the complicity statute treats the conduct you're describing as equivalent to soliciting another to commit an offense or to aiding and abetting another in committing an offense:

No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

(1) Solicit or procure another to commit the offense;

(2) Aid or abet another in committing the offense;

(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;

(4) Cause an innocent or irresponsible person to commit the offense.

The penalty for complicity is the same as for the underlying offense, so you don't really get any kind of break for running your offense through an innocent party; you just get a pissed off witness who can testify against you.

Answer 2

canada

General intent is usually enough

I believe you are largely conflating motive and intent (see generally R. v. Hibbert, [1995] 2 S.C.R. 973, para. 24; The Queen v. George, [1960] S.C.R. 871, p. 877). For most crimes, there is no need to intend a particular outcome or to have a specific reason for doing the actus reus.

Take assault, for example (Criminal Code, s. 265). The mens rea for the simplest variant of this crime is intention: intention to apply force to another person.

If you convince another person to apply force to another person, they will still have intentionally applied force to another person. That means they will have had the mens rea for assault. It is no defence for them that you told them to apply the force or told them that it was okay.

Party liability

You would also be guilty as a party to that offence, via counselling (s. 22 of the Criminal Code).

Some crimes do require specific (ulterior) intent or knowledge of certain facts

Some crimes are defined in a way where knowledge and specific intent does matter. Forgery for example, requires that the accused "makes a false document, knowing it to be false, with intent... that it should in any way be used or acted on as genuine."

If you merely direct someone to make a false document, they will not have the required mens rea. However, you could still have committed an offence by making a forged document via the third party. There is also the standalone offence of using or possessing or trafficking a forged document (which also has a knowledge requirement).

Answer 3

Most legislatures have been running for many centuries, so they've had plenty of time to fix any loopholes like the one you're looking for.

Whilst your victim may be innocent because they act without intent, the mere fact that you intend some illegal act to occur and take any action upon that intent is enough to make you guilty of something.

Exactly which crime you commit would depend on how you convince another person to act, but possibilities include commissioning (you tell the victim the truth), blackmail (you tell the victim "or else"), fraud (you tell the victim a lie), planning (you tell nobody, but trigger events in some other way), or conspiracy (you tell a 3rd party).

(Some jurisdictions include "planning" as a version of "conspiracy", without requiring more than one person to be involved.)

Or in many cases, the crime's relevant Act will provide directly for your actions being the primary cause. In some cases you could still be guilty even if the intended act didn't actually occur..

If it came to a court case, the prosecutor would just throw the book at you, knowing that one of the alternative charges would stick (assuming they could prove their case).