THE CHARACTERIZATION OF EVENTUAL INTENTION IN TRAFFIC CRIMES: THEORETICAL AND JURISPRUDENTIAL STUDY ON HOMICIDE AND BODILY INJURY

Abstract

The main objective of this paper is to analyze the application of eventual intent in crimes of bodily harm and homicide committed in traffic. To this end, the research is guided by the doctrinal and historical institutes and concepts that guide contemporary criminal law, addressing the evolution of the subject in the classical and finalist theories of conduct. The classical theory understands crime as a typical, unlawful and culpable act, placing intent or fault as elements of culpability. From this perspective, conduct is seen in a mechanical and causal way, focusing on the naturalistic result. In contrast, the finalist theory, developed by Hans Welzel, transfers intent and fault to the typical act, understanding human conduct as an action oriented towards a purpose. The Brazilian Penal Code, within the finalist system, adopts a bipartite model of crime, considering guilt as a prerequisite for the application of punishment. Intent, a central element of subjective imputation, is explained by the theories of will and consent, both adopted by the Penal Code. The study delves into eventual intent, a type of indirect intent characterized when the agent does not directly want the result, but assumes the risk of causing it, demonstrating indifference to the possible harmful consequence. The differentiation between eventual intent and conscious fault is considered one of the most challenging issues in criminal practice, since both share the predictability of the result, but differ in the agent's stance: in conscious fault, the agent foresees the result, but seriously trusts that it will not occur. The identification of eventual intent is based on the specific circumstances of the case, such as the agent's behavior and the degree of risk involved. In traffic crimes, especially cases of street racing, high speeding or drunk driving, this distinction is particularly relevant. The case law of the Federal Supreme Court (STF) and the Superior Court of Justice (STJ) has consolidated the understanding that the presence of eventual intent requires the analysis of objective and subjective elements, considering high-risk behaviors. For illustrative purposes, although drunkenness alone does not constitute eventual intent, when combined with other circumstances that demonstrate that the perpetrator assumed the risk, the crime may be classified as intentional. Furthermore, case law research on decisions by the STF, STJ and the Court of Justice of the Federal District (TJDFT) has shown that the in-depth analysis and decision on the configuration of eventual intent or conscious guilt are, as a rule, the responsibility of the Jury Court, the natural judge of intentional crimes against life, in cases where there is evidence to support such an imputation. Reclassification to the negligent modality in the indictment phase is only possible with unequivocal evidence. It is concluded that understanding the theories and types of intent, especially eventual intent, is essential to differentiate intentional from merely reckless conduct and for the fair application of criminal liability in traffic crimes.