There are two presentations:
- The general presentation, and
- The particular presentation.
In general, we say that a non-virtue is a non-virtue regardless of one's intentions. For instance, we say that killing is a non-virtue regardless of one's motivation, regardless of consequences, etc. This is why, in the great and middle-length Lam rims, Je Tsongkhapa simply explains how important the motivation is in determining, not whether an action is virtuous, but whether an action is heavy.
However, the general presentation does not stand in debate. Therefore, by digging a little, you find presentations that contradict the general statement.
The Lam rim gives the general presentation. It says that there are two types of non-virtue:
- Deeds wrong by nature, or 'natural misdeeds' (rang bzhin gyi kha na ma tho ba)
- Deeds wrong by prohibition, or 'proscribed misdeeds' (bcas pa'i kha na ma tho ba)
An example of natural misdeed is killing. An example of proscribed misdeed is for a monk to eat after mid-day.
According to the Lam rim, a natural misdeed is a non-virtue regardless of perception, attitude, affliction, and conclusion. However, a non-virtue can be more or less heavy, depending on (1) perception, (2) attitude, (3) affliction, and (4) conclusion. For instance, Killing unintentionally... or under duress... is not as heavy as killing willingly, intentionally. However, in any case it is a non-virtue. Here, with respect to perception, Je Tsongkhapa says:
In some cases, there may be a specific motivation. For example,
someone may plan to kill only someone called Devadatta, and he or she
then commits murder. However, if this person mistakes Yajnadatta for
Devadatta and kills him instead, there is no [completeplete infraction
with all its aspects fullfilled.]
This is the general presentation. It is given in the context of practices common with beings of small capacities. In the context of bodhisattva practices, however, things are different.
In the Book of Kadam, Atisha says:
As for someone like you, Drom, who has secured a firm ground, who does
not even care to take birth in cyclic existence, who focuses
exclusively on other’s welfare, you can engage in the seven nonvirtues
by relating them to [the application of] skillful means. Those are
[only] similitudes of nonvirtue.
And in the footnote, it says:
Here the text is alluding to an important aspect of the bodhisattva
ethics, according to which highly evolved bodhisattvas can creatively
engage in the seven nonvirtuous actions—the three bodily acts of
killing, stealing, and sexual misconduct and the four verbal deeds of
telling lies, divisive speech, harsh speech, and frivolous speech— on
the basis of the principle of skillful means. In fact, if the
situation demands a deliberate violation of the ethics of restraint
from any of these seven nonvirtuous acts, such as when the well-being
of a large number of other sentient beings is involved, refraining
from the act is actually a transgression of the bodhisattvas vows. For
a detailed discussion of this important aspect o f the bodhisattva
ethics, especially with reference to their key scriptural sources in
the Mahayana sutras, see Mark Tatz s Asangds Chapter on Ethics with
the Commentary ofTsong-Kha-Pa, pp. 211-17.
The meaning is that a non-virtue conjoined with the wisdom of emptiness and bodhicitta is a similitude of non-virtue. It looks like a non-virtuous actions but it is not. One has to keep in mind that such do not occur prior to the Mahayana path of seeing. A non-virtue in the continuum of anyone but a bodhisattva on any of the ten grounds is a non-virtue regardless of one's intention.
See the topic: How does upaya (skillful means) feature in Tibetan Buddhism?