# Is it legally still theft if it was unintentional? **URL:** \ **Category:** Factual Questions\ **Created:** [August 21, 2013, 4:28pm UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809 "2013-08-21T16:28:31Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [August 21, 2013, 8:08pm UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/21 "2013-08-21T20:08:21Z")
> [@Foxy40](#): > > 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. Yep, same here. I will go back and pay for it if it is over $1. Anything less and it’s not worth anyones time & trouble. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [August 21, 2013, 8:56pm UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/22 "2013-08-21T20:56:34Z")
Thuis dredges up another (zimmerman) thread- “affirmative defence”. I assume that the act is what you are charged with - you took the book, etc. The defence, “Oops, it was an accident I did not mean to” is your defence. In an Affirmative Defence, the defendant must prove (by preponderance of evidence, not beyond reasonable doubt?) they did not do so with intent? So basically, if you steal or plagarize, the act itself is evident - possession of the goods or existence of virtually duplicate passages. The onus is now on you to show it wa unintentional. It’s one thing to have store security cameras showing you holing the book in plain site and blithely ambling past the clerk, or stuffing it into your backpack and running out. Not sure you can prove lack of intent to plagarize in a similar manner unless you have something like a direct, attributed quote on page 4 and the same wording on page 16 unattributed and unquoted. In which case, you should get a D- for poor proofreading. ---
**Author:** ![ryanl](https://avatars.discourse-cdn.com/v4/letter/r/b487fb/32.png) [@ryanl](https://boards.straightdope.com/u/ryanl)\ **Post date:** [August 21, 2013, 9:08pm UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/23 "2013-08-21T21:08:16Z")
> [@md2000](#): > > Thuis dredges up another (zimmerman) thread- “affirmative defence”. > > I assume that the act is what you are charged with - you took the book, etc. The defence, “Oops, it was an accident I did not mean to” is your defence. > > In an Affirmative Defence, the defendant must prove (by preponderance of evidence, not beyond reasonable doubt?) they did not do so with intent? In cases where intent is an element of the the crime of theft, the state has the burden of proving intent. Theoretically speaking, the defendant need not raise any defense at all if the state is unable to prove the presence of this element. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [August 21, 2013, 9:16pm UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/24 "2013-08-21T21:16:43Z")
> [@ryanl](#): > > In cases where intent is an element of the the crime of theft, the state has the burden of proving intent. Theoretically speaking, the defendant need not raise any defense at all if the state is unable to prove the presence of this element. Which brings us full circle - how do you prove intent? Generally by the result and the lack of effort to act otherwise? ---
**Author:** ![Pavot](https://avatars.discourse-cdn.com/v4/letter/p/a88e4f/32.png) [@Pavot](https://boards.straightdope.com/u/Pavot)\ **Post date:** [August 21, 2013, 9:17pm UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/25 "2013-08-21T21:17:25Z")
As far as I know, in British law, the term “intent to permanently deprive” an owner of an item is used. Not really relevant to plagiarism I know but thought some readers may find this term of interest. ---
**Author:** ![KneadToKnow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kneadtoknow/32/3999_2.png) [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)\ **Post date:** [August 21, 2013, 9:22pm UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/26 "2013-08-21T21:22:29Z")
> [@HoneyBadgerDC](#): > > 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. Ambien? Mistaken identity? I’m missing something in this story. ---
**Author:** ![ryanl](https://avatars.discourse-cdn.com/v4/letter/r/b487fb/32.png) [@ryanl](https://boards.straightdope.com/u/ryanl)\ **Post date:** [August 21, 2013, 9:46pm UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/27 "2013-08-21T21:46:22Z")
> [@md2000](#): > > Which brings us full circle - how do you prove intent? Generally by the result and the lack of effort to act otherwise? As Procrustus mentioned, you’re unlikely to be charged unless there are suspicious circumstances. A prosecutor is not going to file charges unless there are is direct or good circumstantial evidence of intent. Placing an item into your backpack, zipping up the bag, and walking straight out of the store is more likely to lead a fact finder to infer the presence of intent to commit theft than walking out of store with a full shopping cart with a single unpaid item. Of course, you can prove intent in other ways. A defendant may have bragged about the theft to others, he may have placed the stolen item on sale on craigslist, etc. The state is going to argue that such evidence proves that the claimant had the requisite intent. The defendant will argue otherwise. Ultimately the judge or jury will have to decide if the State met the burden of proving the element of intent. ---
**Author:** ![JSC\_ltd](https://avatars.discourse-cdn.com/v4/letter/j/a587f6/32.png) [@JSC\_ltd](https://boards.straightdope.com/u/JSC_ltd)\ **Post date:** [August 22, 2013, 12:32am UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/28 "2013-08-22T00:32:27Z")
If you want to get really technical, there are several kinds of theft: larceny, embezzlement, fraud, shoplifting, looting, robbery, and so on. Generally speaking, when talking about “theft,” most people to whom I have spoken mean “larceny.” Larceny is the taking and carrying away of the property of another with intent to permanently deprive the other of the property. Intent is one of the elements of the crime. If there is no intent to permanently deprive the other of the property, there is no larceny. Plagiarism is not theft insofar as there is no personal property involved. ---
**Author:** ![leahcim](https://avatars.discourse-cdn.com/v4/letter/l/b4bc9f/32.png) [@leahcim](https://boards.straightdope.com/u/leahcim)\ **Post date:** [August 22, 2013, 12:43am UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/29 "2013-08-22T00:43:35Z")
There is also the tort of [conversion](http://en.wikipedia.org/wiki/Conversion_%28law%29)which seems like a more generalized version of theft that doesn’t require mens rea like real theft does. Could “unintentional shoplifting” count as that? ---
**Author:** ![Cat\_Whisperer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cat_whisperer/32/4839_2.png) [@Cat\_Whisperer](https://boards.straightdope.com/u/Cat_Whisperer)\ **Post date:** [August 22, 2013, 12:46am UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/30 "2013-08-22T00:46:35Z")
> [@HoneyBadgerDC](#): > > 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. This made me chuckle - I have this picture of you staggering in with your eyes barely open, getting your cup of coffee, and staggering back out again, with the clerk watching you in disbelief. 😃 ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [August 22, 2013, 12:56am UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/31 "2013-08-22T00:56:04Z")
> [@KneadToKnow](#): > > Ambien? Mistaken identity? I’m missing something in this story. **HoneyBadgerDC** don’t care. 😉 ---
**Author:** ![NotDeadYet](https://avatars.discourse-cdn.com/v4/letter/n/22d042/32.png) [@NotDeadYet](https://boards.straightdope.com/u/NotDeadYet)\ **Post date:** [August 22, 2013, 1:03am UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/32 "2013-08-22T01:03:13Z")
You’re talking about plagiarism, right? Having taught for many years at the college level it is something that was discussed on the first session of every class I taught. Towards the end it was easy, just scan the paper into a service that the college subscribed to and in a matter of a few minutes, I’d have the results. The way to avoid plagiarism is for the student to not write with the book or website open in front of them, and when in doubt, cite your source. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 22, 2013, 2:03am UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/33 "2013-08-22T02:03:37Z")
> [@obfusciatrist](#): > > But once you realized it and didn’t return it then it probably did become theft. Everyone else is right, but this is also right. At least at common law. Larceny is the trespassory taking of an item with the intent to the deprive the owner permanently of it. For larceny, the trespass element is continuous so long as it is in your possession. So at the moment you were looking at the prayer book at home and decided not to return it, you were guilty of larceny. How can intent be proven? It can be inferred by your actions. Does the shopkeeper believe you? No? The cop? No? The prosecutor? No? The jury? No? Then you are out of luck, but that’s the limit of due process you get in the USA. Just last week I stopped at a gas station, used the restroom, grabbed a soda and went out to the vehicle. I started the car took a drink and realized I didn’t pay. I returned and paid, but I would think in that circumstance, anyone would realize that with money and credit cards in my wallet, I wasn’t trying to abscond with $1.39 soda. ---
**Author:** ![Hail\_Ants](https://avatars.discourse-cdn.com/v4/letter/h/dc4da7/32.png) [@Hail\_Ants](https://boards.straightdope.com/u/Hail_Ants)\ **Post date:** [August 22, 2013, 3:47am UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/34 "2013-08-22T03:47:13Z")
Ask former _Good Eats_ host and all around [neat guy Alton Brown.](http://boards.straightdope.com/sdmb/showthread.php?t=370202) (scroll down a bit to the story). If I’d been him I’d have gotten the whole wannabe-cops / store security team fired! ---
**Author:** ![runningdude](https://avatars.discourse-cdn.com/v4/letter/r/e9c0ed/32.png) [@runningdude](https://boards.straightdope.com/u/runningdude)\ **Post date:** [August 22, 2013, 3:57am UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/35 "2013-08-22T03:57:07Z")
> [@leahcim](#): > > There is also the tort of [conversion](http://en.wikipedia.org/wiki/Conversion_%28law%29)which seems like a more generalized version of theft that doesn’t require mens rea like real theft does. Could “unintentional shoplifting” count as that? A “tort” isn’t a crime. It is a legal injury, in this case financial, that one can attempt to resolve in a civil lawsuit. For instance, the store is could sue the customer to recover the item or the cost of the item, in addition to pressing criminal charges with the police. Edit, I see there is “[criminal conversion](http://en.wikipedia.org/wiki/Criminal_conversion)” too. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [August 22, 2013, 4:21am UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/36 "2013-08-22T04:21:47Z")
I’m reminded of the _Foxtrot_ cartoon on plagarism: Teacher - “Jason, this was supposed to be an original essay. All you did was copy the Wikipedia entry.” Jason - “Prove I didn’t write the Wikipedia entry”. ---
**Author:** ![obfusciatrist](https://avatars.discourse-cdn.com/v4/letter/o/4af34b/32.png) [@obfusciatrist](https://boards.straightdope.com/u/obfusciatrist)\ **Post date:** [August 22, 2013, 5:03am UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/37 "2013-08-22T05:03:58Z")
Self plagiarism (along with some quote fabrication) brought down Jonah Lehrer. ---
**Author:** ![KneadToKnow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kneadtoknow/32/3999_2.png) [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)\ **Post date:** [August 22, 2013, 12:34pm UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/38 "2013-08-22T12:34:54Z")
It is in deed a whale of a problem. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [August 22, 2013, 2:50pm UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/39 "2013-08-22T14:50:14Z")
> [@Sampiro](#): > > 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? that. 2901.22 Degrees of culpability attached to mental states. (B) A person acts\*\* knowingly\*\*, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. 2913.02 [Effective7/1/2013] Theft. (A) No person, with purpose to deprive the owner of property or services, shall **knowingly** obtain or exert control over either the property or services in any of the following ways: (1) Without the consent of the owner or person authorized to give consent; (2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; (3) By deception; (4) By threat; (5) By intimidation. As we see in A, “with purpose to deprive the owner”… Your so called “mistake of fact”, walking out forgetting to pay, is a defense, however, it must be proven in court. The case law is clear, the police are NOT required to investigate to any great degree before charging a person with a crime. They could say once you are stopped, or seen at another time, they do not want to listen to any hard luck stories, even though if defacto they talked to you it would change thier minds. The store clerk’s testimony on scene may be crucial to a charge or not. In Ohio, a warrantless arrest for shoplifting has to take place within a reasonable time after the theft, if not witnessed by the officer, this is one exception to our “in presence” requirement for warrantless misdemeanor arrests, assuming it was a misdemeanor. Now, if a charge is made later, either a citation must be written or a warrant needs to be applied for. A Judge may say, talk to the guy before I sign an arrest warrant? ---
**Author:** ![Ann\_Hedonia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ann_hedonia/32/319_2.png) [@Ann\_Hedonia](https://boards.straightdope.com/u/Ann_Hedonia)\ **Post date:** [August 22, 2013, 3:42pm UTC](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809/40 "2013-08-22T15:42:45Z")
> [@obfusciatrist](#): > > Mens rea, that is. > > 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. Maybe. But regardless of what you claim your intent or lack of intent was, a judge or jury doesn’t have to believe you. If you had removed the book from the store and ran back in with it to pay for it once you were in the parking lot, your story is believable. If a security guard nabs you in the parking lot and your defense is “Whoops,I forgot to pay” the believability factor goes way down. If simply claiming that “I forgot to pay” was a valid defense for shoplifting, no one would ever be prosecuted again. I accidently stole something once. I was working at a client’s home and their housekeeper picked up my leather bomber jacket from a kitchen chair and hung it in the coat closet. I retrieved it when I left but an hour or so later I realized I wasn’t wearing MY leather jacket, I was wearing one of similar design but much higher quality that probably cost 10 times as much as mine. Of course I returned it immediately ( and honestly, I would’ve returned it even if my house keys hadn’t been in the pocket of the jacket I left behind 😉 ). And there were no consequences because my story was believable in the face of my actions. Now if I had walked into my appointment without a jacket and left with one and failed to return it promptly the story may have had a different ending. [Previous page](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809.md?page=1) [Next page](https://boards.straightdope.com/t/is-it-legally-still-theft-if-it-was-unintentional/666809.md?page=3)