Embezzlement and the “good faith” defense

The defenses to the crime of embezzlement can be glossed over when such charges come to our attention in the media, despite their importance. One major defense to the crime of embezzlement that is worth understanding is the “good faith” defense.

What is embezzlement?

In its simplest form, the crime of embezzlement occurs when a person to whom money or property has been entrusted uses that money or property for their own purposes. Embezzlement differs from mere theft, in that a person must have a fiduciary relationship—a position of trust granting permission to manage the property on behalf of the victim—with the victim to commit embezzlement. Without that relationship, the crime would simply be larceny or theft.

What the crime of embezzlement has in common with other theft crimes is the element of intent. To commit embezzlement, a person must intend to deprive the victim of the money or property, either temporarily or permanently.

Embezzlement and good faith

Intention can be the lynchpin in whether a person will be charged with embezzlement. If a person believes in good faith that they had ownership rights over the money or property, and in no way meant to deceive the true property owner or wrongfully devest them of the property, that person does not have the requisite intent to commit the crime of embezzlement. This is referred to as the “good faith” defense.

The good faith defense applies even if a person does not actually have ownership rights over the money or property at issue. As long as they honestly believed they did have ownership rights and in no means meant to deceive or deprive the true property owner of what was theirs, there is no intent to commit embezzlement.