ALL DISCLAIMERS IN PLACE about not seeking or interpreting any answers as legal advice.
Many if not most people have problem unintentionally shoplifted before (one of my most embarrassing moments was stealing a prayer book from a Civil War battlefield gift store [I just totally forgot I had it in my hand and walked out with it- never did send it back, actually]).
So whether it’s a candy bar or an emerald necklace, if you can prove that you did not intend to steal it, is it still legally theft? I know you can still be prosecuted and held accountable for its return and any damages, but I’m curious whether it’s legally still theft if you can somehow prove you did not intend to steal it.
My context for asking:
I’m giving a talk about plagiarism to my class tomorrow and one of the things I wanted to stress is that most plagiarism is not deliberately stealing another person’s work but unintentional (e.g. not citing what you need to, paraphrasing too closely, etc.), but just as an item you didn’t intend to steal can still get you in a boatload of trouble, plagiarism can still earn you an F even if you didn’t mean to imply those were your own words or figures or whatever. I was going to say “It’s still theft even if it’s unintentional”, but thought perhaps I should check that. (I can definitely say that it’s still perceived as theft even if unintentional.)
IANAL but many crimes require the person to at least realize they have done something wrong. Not all by any stretch of the imagination, but it is considered a mitigating factor in many cases. for example: small children are not punished like adults as they are often not capable of understanding the scope and scale of what they may have done.
I believe most places recognize a specific intent defense for theft. That is you have to have both stolen it and have had the specific intent of stealing it. So your prayer book would not have been theft if they’d caught you in the parking lot (and you could convince the police, prosecutor or jury of your lack of intent). But once you realized it and didn’t return it then it probably did become theft.
Plus, plagiarism isn’t really theft in that legal sense.
I’d say that even if you unintentionally plagiarized you’ve shown your sloppy work by not having prevented it. So either you stole it intentionally and get an F or you stole it unintentionally and get an F for not taking one of the fundamental safeguards when engaged in writings based on the writings of others.
However, if the clerk at the checkout does undercharge or count items wrong in your favour – it’s technically theft since you are leaving with an unpaid item in your shopping bag, but they would have a hard time prosecuting you for their mistake.
Technical in what sense? The legal definition of theft under most statutes includes intent as an element of the crime. Missing intent, there is technically no theft.
This raises the question for me that everyone could then steal all the time and then just say, “oh shucks, I forgot about that” once grabbed in the parking lot.
I think it DOES happen, and very frequently. Keep in mind that “Oh shucks, I forgot about that” is just a defense. Maybe the cops believe it and there’s no arrest. But maybe you are arrested, charged, arraigned, etc. and only then will a judge and/or jury decide whether or not they believe you.
I mean, what other option do you have? You either plead guilty or you pretend you didn’t take it intentionally.
But, as others have said, the issues of shoplifting/theft and plagiarism shouldn’t be confused as a single issue. One definition of plagiarism: “an act or instance of using or closely imitating the language and thoughts of another author without authorization and the representation of that author’s work as one’s own, as by not crediting the original author”
Probably because most people are generally law abiding and/or fear the consequences of being caught. At any rate, proving intent does not require the admission of the defendant, and the fact finder (judge or jury) may infer intent based on direct or circumstantial evidence. A mother with a crying toddler walking out from a grocery store with unpaid candy is likely going to elicit a different response from the fact finder than a teenager who places a bottle of wine in his backpack and who zips it up before walking out of the store.
I’ve done a handful of jury trials for shoplifting. The defense is always “I forgot to pay for it.” When that is believable the security guard at the store usually say, “no problem, have a nice day.” When there are actions that seem suspicious (putting item in backpack, etc), you’ll very likely get charged. When it’s in the grey area, a judge or jury will try to figure it out, hopefully giving you the benefit of the doubt (presumption of innocence).
Something that I have done occasionally at supermarkets is put something on the bottom rack of the cart, go through checkout and at my car notice it in there and not sure if it got wrung up or not. Did I place it on the counter and the bag boy put it in the bottom again? Can’t remember. Should I recheck the whole shopping ticket to see if it got wrung up?
Hot and tired I’ve said to hell with it and driven home.
You can also suggest that plagiarism is a “strict liability” crime, like having sex with someone who is underage. It is entirely your responsibility, as an adult, to be sure that your sexual partner is of age.
With plagiarism, it’s difficult to prove intent, it is entirely your responsibility, as a writer, to properly document your sources and not paraphrase too closely.
It was said above that “many crimes require the person to at least realize they have done something wrong.” It is correct that many crimes do require some mens rea (a guilty mind) — not all do, those that do not are known as strict liability offenses.
However, mens rea is not equivalent to “knowing that one did something wrong.” Mens rea can be divided into two catergories: general intent and specific intent. General intent means only that the defendant intended to undertake the act he performed, that it was not an unwitting or involuntary action. It is no defense to general intent to say, “I freely, willingly, and understandingly did this act, but I did not intend or know it to be unlawful.” Specific intent, on the other hand, does require, well, a specific intention to accomplish some unlawful objective.
General intent — the voluntariness of the action.
Specific intent — the unlwafulness of the intention.
The Modal Penal Code has a different structure. It divides mens rea four ways (although the distinction between the first two is glancing at best), with a mens rea component for each element of the actus rea (the actions which, when joined with the required mens rea, constitute the crime):
• The intentional or purposeful commission/fulfillment of the element.
• The knowing comission/fulfillment of the element
• The reckless commission/fulfillment of the element
• The negligent comission/fulfillment of the element
The law typically assumes one intends the consequences that one knows will follow some action, so the distinction between intentional and knowing mens rea is slight. Negligence is the unreasonable inattention to the possibility of some bad or unlawful outcome. Recklessness is a sort of negligence whose unwisdom is so brazen and so immediately apparent that it gets elevated to the next higher class of mens rea.
So, with all that as prologue, here is how Illinois defines "general theft’ (720 ILCS 5/16-1(a)):
As you can see, most of the mens rea requirements are of the intentional/knowing variety (including “explicitly represents”). So theft is characteristically a crime of specific intent. That intent being unlawfully to deprive the owner of his right of control over the property (for any period of time). Notice also that in the recieving stolen property forms of the crime, “reasonably induce” would betoken a reckless, or perhaps even negligent, level of mens rea.
So, in general, an accidental taking (that is, one where the defendant did not know that he was actually taking the property of another, either because he did not know that he was taking it, or he did not know it not to be his) is not legally theft.
Guilty of forgetting about the bottom rack thing myself. Although I would consider it stealing if you didn’t go back and pay for it after you noticed. I don’t think “hot and tired” is a defense to take property that you didn’t pay for.
The checker atthe corner gas station screamed at me one morning that he was sick of me comming in and pouring a cup of coffee and walking out without paying. He said he lost count of how many times I did it. I would stop in each morning on my way to work for coffee. I had no clue I had done this.
I went through the grocery checkout this past weekend, and as I paid, it nagged at me that the final tab seemed low. I checked my receipt as I started to walk away, and sure enough, my giant $35 box of diapers was not recorded – presumably the cashier had run it over the scanner but it had not registered.
Technically, I suppose I would not have been stealing, but that $35 coupon certainly felt like a five-finger discount. I reported the error to her and got properly rung up.