What is Malice?

Daniel Liden

Malice is a legal term that describes an intent, expressed or implied, to do harm to another individual or to a group of individuals. In many legal systems and for many kinds of crimes, an individual cannot be convicted of some crimes unless malice can be demonstrated. The intent to do injury, for example, must be demonstrated if one is to be convicted of such crimes as assault, battery, or murder. As it is impossible to read minds, it can be difficult to effectively prove that an individual intended to do harm. As such, judgment on the issue can often be relatively subjective and is based on existing evidence and witness reports.

Gossip is often spread with a malicious intent.
Gossip is often spread with a malicious intent.

The term expressed malice describes a stated intent to do harm; the intention to do harm is clear, deliberate, and expressed. Implied malice describes situations in which there is no explicit statement of intent to do harm, but in which the intent to do harm is apparent. This is much more subjective as there is no expressed intent to injure anyone; such intent must be inferred from evidence after the fact. One of the two forms of malice must be demonstrated for individuals to be convicted of some crimes.

Violent crimes such as assault are typically committed with malice.
Violent crimes such as assault are typically committed with malice.

In many legal systems, such as the English legal system, malice describes not only the intent to do harm but also a reckless disregard for the harm that one's actions could cause. If one recognizes that his actions can cause harm but acts anyway, his disregard can, legally speaking, be considered the same as intent to cause harm. It is also important to note that the amount of harm an individual believes his actions can cause does not matter. If an action that an individual believes will only cause a small amount of harm actually causes a great deal of harm, malice can still be demonstrated because the the individual acted with the understanding that his actions would cause harm.

Cases of libel may be based upon malice.
Cases of libel may be based upon malice.

Malice does not only apply to violent crimes. In the United States, for example, the case that established guidelines for intent to cause harm actually involved defamation and libel. Intent to harm to an individual's reputation or a person's emotional state also can fall under the malice category. The Supreme Court case New York Times Co. v. Sullivan began to establish standards regarding recklessness and malicious intent. Even then, however, there were concerns about the inherently subjective nature of most forms of maliciousness.

The U.S. Supreme Court heard a case, the New York Times Co. v. Sullivan, that involved accusations of recklessness and malicious intent.
The U.S. Supreme Court heard a case, the New York Times Co. v. Sullivan, that involved accusations of recklessness and malicious intent.

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Discussion Comments


@David09 – I used to feel exactly the same way that you do about people using the insanity plea falsely. However, I have since come to understand that there are reasons that these kinds of definitions are in place.

You see, I am married to a man who has bipolar disorder. Right now he is stable and medicated and is completely in control of his mind and actions. But there have been times before his medication was stabilized that this was not always the case.

He did indeed have quite lucid moments of perhaps hours or even days, but at any moment he could become…different.

I can truly understand how in one moment a person could be responsible for hurting someone with malicious intent, and in the next not have an inkling as to what they are doing.

Some take advantage, I know, but we must protect those who legitimately need the differentiation of whether they were in sound mind or not when they committed their offense.


@miriam98 - I agree that malice needs to stay. What I think should not stay is the idea of a “hate crime.” What makes a crime anymore hateful just because it’s motivated by bigotry of any kind?

Are there such things as “love crimes”? Yes, I know there are crimes of passion – but is the end result “love”? It all ends in hate if someone is injured or killed.

Hate crimes are an example of political correctness run amok in my opinion and they should be removed from our legal lexicon. There’s no reason someone who kills someone else because of their skin color or sexual orientation should face stiffer punishment than someone who commits ordinary murder, as if there were such a thing.

Hate crimes make regular crimes look benign in comparison.


@David09 - Nobody likes the insanity defense. But I think you’re on shaky ground if you try to remove it. Underlying this defense, as you said, is the principle of sound mind.

Understand that such a distinction would not only apply to people who are “crazy” in the medical sense of the term, but people who have some severe learning disabilities.

These people are not insane but they are not always of sound mind, and that’s why the law uses the term “sound mind” in so many legal documents.

It’s a way of saying that you knew what you were signing when you signed it, and you had a choice in the matter whether to sign or not.

Malice, incompetence and insanity are all important qualifiers and they should stay in my opinion. Yes, these things are abused, by I think most jurors understand that, and it’s up to them whether they want to buy into the insanity defense or not.


I believe that the malice definition is an important distinction, because it separates murder from manslaughter in most cases. If someone is killed by accident, such as the through the actions of a drunk driver, then it falls under manslaughter and not malice, since the driver, while drunk, did not intend to harm.

What I disagree with is the idea that mental insanity is a form of immunity from malice. Personally, I believe that someone can be insane and have malicious intent. Moreover, I don’t think the time worn “insanity” plea is enough to extricate someone from responsibility in a crime.

Too often this is a cop out by defendants who are good at faking their craziness on the stand, and who in other contexts are clearly of sound mind. I think it’s time to revisit the meaning of insanity and why it is our legal system gives such an individual a pass in a violent crime.

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