Eventual malice and conscious negligence How do they differ?

Guilt or malice? Undoubtedly, two concepts that create a lot of confusion among those who are not used to expressing themselves in the legal sphere. Therefore, here we are going to explain what each one consists of and what their differences are.

The 5 elements that constitute any crime

Before defining what intentional intent and conscious guilt are, we must clarify what are the 5 basic elements that determine any type of crime. Specifically, we are talking about:

• Action. The most important of all. It is the human conduct, whether by act or omission, which produces the criminal result.
• Typicality. After determining the action on the real level, it must be clarified whether it is included in the legislation.
• Unlawfulness. In other words, the action must be in breach of some explicit rule of the legal system.
• Culpability. The subject is responsible for the action that has broken the law.
• Punishability. The action committed is punishable according to the law.

Therefore, for an act to be considered a crime, it is necessary for it to comply with these five precepts. Otherwise, it cannot be said to have been committed.

Fraud as a legal concept

In law, malice is a concept that implies a deliberate will to commit a crime, even knowing that it is unlawful and being aware of the damage it will cause. However, there are two different degrees:

• First degree malice. This is the most intense form. For this to occur, the perpetrator must have the intention to commit the offence. This would be the case, for example, of a person who wants to kill another person and, to do so, buys a gun and shoots him several times.
• Second degree intent. Also called indirect intent. This occurs when the crime has consequences that were not intended by the perpetrator, even though they were unavoidable. An example? Imagine a terrorist attack with the aim of assassinating a politician. He manages to save his life, but his partner dies. In this case, the malice would be of this type.

What is malice aforethought?

In addition, the legislation includes a third type of malice, which is subject to much controversy due to the fine line that separates it from fault. It is also the most complex to define.

Specifically, malice aforethought occurs when a person decides to carry out a certain action knowing, but not intending, that it may have consequences that constitute a crime.

There are many examples of malice aforethought that can help us to better understand this concept. Consider a young person who is late for a meeting and decides to run a traffic light. This is an action that could lead to a pedestrian being run over and he knows it. Therefore, if it occurs, this type of malice is most likely to be established.

Another interesting example is that of a purse snatcher. As he passes by an elderly woman, he tugs her and she falls to the ground, hits the curb and dies. The aim of the robbery was to get the contents of the bag, but not to kill the woman. However, it was a possibility that existed and of which the offender was aware.

Conscious fault

As we said before, it is easy to confuse intentional wrongdoing with conscious fault. As we shall see, they are quite similar concepts.

In the legal sphere, fault derives from an action that results in damage or harm to a third party. The key is that it is never done in bad faith.

In this sense, fault can be conscious or unconscious, as we will see below:

• Unconscious fault. The author of the action has not foreseen the result of the acts carried out. This would be the case, for example, of a driver who, going at the appropriate speed on the road, suffers the brakes of his vehicle to break and ends up running over a pedestrian.
• Conscious fault. In this case, the perpetrator knows that there is a possibility that the damage or harm will occur, but trusts that it will not happen. For example, we could talk about a parent who crosses with his child outside of a zebra crossing, which causes the child to be hit.

So what is the difference between malice and negligence?

The difference lies in the bad faith referred to above. In malice it is always present, whereas in negligence it is not. That is to say, if a person commits an action whose intention is to provoke the final result, he or she is guilty of malice. On the other hand, if this is not the case but the consequences are still produced, then we would speak of fault.

We are sure that, with this explanation and the examples with which we have accompanied it, the difference between malice and negligence has become clear. If you still have any doubts, please contact us.