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Prohibition of Homicide

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Etymology: Latin homicidium, from homo- human being + caedere- to cut, kill. Homicide refers to the act of killing another human being. It can also describe a person who has committed such an act, though this use is rare in modern English. Although homicide does not define an illegal act necessarily, some jurisdictions use the word to indicate the unlawful killing of a person.

A Nolo Press glossary definition claims the legal definition of homicide involves, "The killing of one human being by the act or omission of another." A homicide defines any killing of one human being by another, criminal or otherwise. "Homicide is considered noncriminal in a number of situations, including deaths as the result of war and putting someone to death by the valid sentence of a court."

According to U.S. Legal, the law typically considers criminal homicide, or murder, a malum in se immorality, and every legal system contains some form of prohibition or regulation of criminal homicide.

Homicide in Jewish Law (for Noahides)

Rabbi Aaron Lichtenstein notes that of the Seven Laws of Noah, the one receiving the fullest expression in the text of the Bible is Homicide. Noah and his sons are instructed in this regard in two verses, totaling thirty Hebrew words:

However, I shall avenge your life's blood, from the hand of any beast shall I avenge it and from the hand of man; from the hand of man for his brother shall I avenge human life. Anyone that sheds the blood of man will have his blood shed by man, for man was created in the image of G-d.[1]

The relative length of the statement dealing with Homicide – the next longest being a single verse of six words for the Limb of a Living Creature - is partly due to the fact that,more than the legal aspects of Homicide are expressed here. Also being expressed is an affirmation of the transcendental quality of the human specie, the sanctity of human life. This affirmation, in turn, finds expression in additional legislative formulations with regard to the taking of human life. An example of such legislation is found in Nahmanides' commentary on these verses:

"From the hand of every beast will I avenge it:- I wonder if this avengeance from a beast can be taken literally, in view of an animal's not having any moral sense that justifies punishment or reward. Perhaps, however, because the loss of human life is involved here, it is as if by the King's edict that any animal that kills a man shall be killed. This then would be the rationale behind, "The [murderer] ox shall be stoned; its meat shall not be eaten." Surely this is not in the way of a fine for the owner, for even a wild ox must be executed; and this rule applies for the Noahites as well as for the Israelites...[2]

Rabbi Aaron Lictenstein

After discussing the Seven Laws as Categories, Rabbi Aaron Lichtenstein attempts define which of the 613 laws, based on Maimonides' Book of Divine Commandments, would fall under the Noahide Prohibition of Homicide and therefore apply to Noahides, he writes:[3]

In spite of the two full verses on Homicide and the equating, by Nahmanides of Jews and Gentiles with regard to the very spirit of the law on Homicide, no additional Positive or Negative Mosaic Commands can be placed on the list being compiled here, for reasons that follow:

The regulation concerning the stoning of a murderer ox can not be added because this regulation has no separate command among the 613, but it is grouped with Positive 237: ". . . to observe the Law appertaining to Injuries caused by an Ox,- which includes payment of property damages as well as the judgment for killing a human, and it is doubtful that the Noahic law is the same as the Israelite with regard to payment of property damages caused by one's animal.[4]

As for the Genesis 9:5 and 9:6 verses, these never achieve formulation into a command, but rather it is the verse, "Do not murder," in the Ten Commandments, that results in Negative 289. However, Negative 289 has already been included in the list of the present study - it is listed fourteenth under justice - in the following guise: ". . . against the court killing an innocent man," this being Charles Chavel's rendition in English of Negative 289. On the other hand, Chaim Heller, in his critical edition of the Book of Divine Commands, which is based on an early Hebrew manuscript of Moses ibn Tibbon's translation of the original Arabic, renders Negative 289, "...against any person murdering anyone."[5]

1. "...Against any person murdering anyone." (Negative 289)

Chaim Clorfene and Yakov Rogalsky

According to Chaim Clorfene and Yakov Rogalsky in the "Path of the Righteous Gentile" the Prohibition of Homicide includes murder; abortion; self-defense; suicide; manslaughter; and implies a prohibition on masturbation. The commandment prohibiting murder is explicitly stated to Noah by G-d: "Whoever sheds the blood of man, by man shall his blood be shed, for He made man in the image of G-d" (Gen. 9:6).

2. A Noahide who kills a human being, even a baby in the womb of its mother, receives the death penalty. This means that one who strikes a pregnant woman, thereby killing the fetus, incurs the death penalty.[6] (The act must have been done at least forty days after conception.[7] Before forty days, the act is in the category of destruction of man's seed, and the transgressor is liable for punishment from heaven, not by a court on earth.)

3. Men and women have an equal responsibility to observe the prohibition against murder, and any act for which a man is held liable, a woman is equally held liable.[8]

4. If a person kills one who is terminally ill or is falling from the top of a cliff or is certain to die momentarily for any other reason, he transgresses the prohibition against murder and is liable for punishment by the courts.[9] This judgment places the idea of mercy killing or euthanasia squarely in the category of murder.

5. If one pushes a person onto railway tracks and a train subsequently comes and kills him, or if one leaves a person in a situation where he will surely starve to death, although the action only indirectly causes the person's death, it is murder and the act is punishable by the courts.

6. If a person sees someone pursuing another for the obvious or suspected intent of committing murder or with the intent of causing the pursued to commit a sin, and the observer is able to stop the pursuer by wounding him, but kills him instead, he transgresses this commandment and receives the death penalty. If, however, the person himself is being pursued, he is free to take any action necessary to save his own life.[10]

7. Authorities disagree as to whether it is permissible for a Noahide to kill a fetus in order to save the life of the mother. But all agree that taking the mother's life to save the fetus is murder and punishable by the courts.[11]

8. If a Noahide kills someone through a messenger, both the messenger and the one who sent him are liable for punishment as murderers.[12]

9. A person is commanded to allow himself to be killed rather than kill. This means that if people try to compel a person on pain of death to kill someone, he must not commit murder regardless of the consequences.[13]

10. Suicide is forbidden under the Seven Universal Laws.[14]

11. There is no place of legal refuge for a murderer. Any relative (on the father's side) of a murder victim who can legally inherit property of the deceased may designate himself a "blood avenger." If the murder was committed intentionally with malice aforethought, it is the blood avenger's obligation to see that the murderer is brought to trial.

12. If the killing was manslaughter ‑ that is, if the killer acted unintentionally but negligently, and it is a matter of a ger toshav (proselyte at the gate, a Noahide who lives according to the Seven Universal Commandments) killing another ger toshav, the killer flees to a designated city of refuge until his trial comes up. If the courts rule that he did kill but unintentionally, he must return to the city of refuge and reside there until the High Priest of the Jews dies (the death of the righteous is an atonement for the generation), then he is free to return to his home. If he leaves the city of refuge prior to the death of the High Priest, the blood avenger may find him and kill him. The blood avenger is held harmless for killing the manslaughterer.

If a ger toshav kills an Israelite unintentionally but neg­ligently, or if he kills another ger toshav because he thought that it was permissible (this is considered tantamount to killing intentionally), he is liable for the death penalty.

If a Noahide who does not live according to the Seven Universal Commandments kills another Noahide in a circum­stance of manslaughter, he is subject to the death penalty and the city of refuge affords him no protection.

In any case where a blood avenger kills the manslaughterer, if a relative of the slain manslaughterer seeks revenge against the blood avenger and kills him, that relative is deemed a murderer and is prosecuted as such.[15]

13. There is a difference of opinion as to whether the Seven Universal Commandments include the commandment for­bidding the willful destruction of a man's seed through masturbation or any other act of wasting semen.[16] All agree, however, that sexual relations with a woman who is incapable of bearing children is not considered wasting semen. One opinion is that the commandment to be fruitful and multiply, having been given to Noah, but not repeated to Moses, was in force only during those generations before the historical event of Mount Sinai. In those early times, wasting semen was considered among the most heinous of sins and a chief reason that G-d brought the Flood to destroy the world. Moreover, the Torah clearly teaches that Judah's two sons, Er and Onan, were killed by G-d, for "the thing which he (Onan) did was evil in the eyes of the L-rd" (Gen. 38:10). But this event also occurred before the giving of the Torah on Mount Sinai. This opinion concludes that since the commandment against wasting seed was not repeated at Mount Sinai, it is no longer in effect as part of the Seven Universal Commandments.[17]

The other opinion states that despite its not being repeated at Mount Sinai,

since it was originally part of the Seven Universal Commandments, a man must not willfully destroy his seed, though the act is not punishable by the courts. After a man has fulfilled his minimal obligation of bringing a son and a daughter into the world, if he wishes then to use contraceptive devices, he should use those types that do not act directly on the semen.[18] Also, according to this viewpoint, masturbation would be strictly forbidden.

In spiritual terms, the reason for the great concern and strictness concerning the wasting of a man's seed is that it is considered the willful destruction of his life‑giving force and equated with life itself. Therefore, the destruction of a man's seed is related closely to murder, and more, to the murder of his own children.

Rabbi Yoel Schwartz (Jerusalem Court for Bnei Noah)

Every man must safeguard the most important deposit given in the custody of humanity, the lives of human beings, be it his own life or that of others. It is therefore prohibited for a person to endanger himself and, even more so, others. He should be careful to guard his own health and that of society and not do those things that are likely to cause harm like driving with excessive speed, etc.

A person is prohibited from murdering any person, adult or child, man or woman and even the fetus in a womb. However, abortion is allowed if it will save the life of the mother.

It is prohibited to kill a sick person although he is dying of a terminal disease, and there is no possibility of saving his life and even if the patient himself requests to die. Taking organs from such a person while he is still alive, although it may save another person’s life, is also prohibited. If it is known that there is no chance of saving life, there is no need to prolong suffering by artificial means since the patient is dying anyway. However, we are not allowed to directly disconnect the equipment that allows the dying person to breathe.

It is forbidden to kill a criminal before he is brought to trial and sentenced by a court. A person is not allowed to commit suicide or to shorten his own life in any way. If he is being forced to commit idol worship, he is allowed to commit suicide to sanctify the name of G-d. If a person is being forced to kill another person or be killed, he is still not allowed to kill others. However, if the killers are demanding that one person be handed over to them or they will kill everyone, it is allowed to hand over that one person to save the lives of all the others. However, in the case of terrorists, it should be considered that such demands by terrorists have only proven to encourage the killers to take more hostages and kill more people.

If a person is running after you or chasing you to do you harm but not to kill you, then you are not allowed to kill him. However, if his purpose is to kill, and you have no other way in which to save your life but to kill him, you are allowed to do so in self-defense. But if there is any other way that you can save your life, perhaps by injuring him just enough to stop him from chasing you, then you are not allowed to kill him. If you do slay the murderer, you are guiltless and may save other people’s lives who the murderer might otherwise kill later. Thus if the killing is to save your life or someone else’s life, you are allowed to kill him. It is even a mitzvah to do so as Abraham went out to war to save Lot, his nephew and others. Here Abraham was saving life, not killing one who is trying to kill him. It is prohibited to declare war on another nation since you will be involved in killing and you are endangering the lives of your people too. You are allowed to go out to war if you are being attacked. You are allowed to kill the attackers, but you are not allowed to kill prisoners of war if they are no longer endangering life.[19]

Homicide in Noahide Law

Murder

Murder is the unlawful and intentional killing of a human being by another. The maximum penalty for murder is usually life imprisonment, and in jurisdictions with capital punishment, the death penalty may be imposed.

As with most legal terms, the precise definition varies between jurisdictions. For example, in some parts of the United States anyone who commits a felony (serious crime during which any person dies may be prosecuted for murder (see felony murder). Many jurisdictions recognize a distinction between murder which is premeditated, and manslaughter.

The word 'Murder' is believed to have derived from a practice of the Normans shortly after their invasion of England. There was a presumption that every dead body found was a Norman body unless it could be proven to be English. If the dead body was not proven to be English, a fine was levied which was known as a 'Murdrum', from which the word 'Murder' is derived.[20]

Mitigating circumstances

Most countries allow conditions that "affect the balance of the mind" to be regarded as mitigating circumstances. This means that a person may be found guilty of "manslaughter" on the basis of "diminished responsibility" rather than murder, if it can be proved that the killer was suffering from a condition that affected their judgment at the time. Depression, post-traumatic stress disorder and medication side-effects are examples of conditions that may be taken into account when assessing responsibility.

The defenses of insanity or mental disorder may apply to a wide range of disorders including psychosis caused by schizophrenia, and excuse the person from the need to undergo the stress of a trial as to liability. In some jurisdictions, following the pre-trial hearing to determine the extent of the disorder, the verdict "not guilty by reason of insanity" may be used. Some countries, such as Canada, Italy, the United Kingdom and Australia, allow post-partum depression (post-natal depression) as a defense against murder of a child by a mother, provided that a child is less than a year old (this may be the specific offense of infanticide rather than murder and include the effects of lactation and other aspects of post-natal care). Those who successfully argue a defense based on a mental disorder are usually referred to mandatory clinical treatment until they are certified safe to be released back into the community, rather than prison.

Year-and-a-day rule

In some common law jurisdictions, a defendant accused of murder is not guilty if the victim survives for longer than one year and one day after the attack. This reflects the likelihood that if the victim dies, other factors will have contributed to the cause of death, breaking the chain of causation. Subject to any statute of limitations, the accused can still be charged with an offense representing the seriousness of the initial assault. With advances in modern medicine, most countries have abandoned a fixed time period and test causation on the facts of the case.

In the UK, due to medical advancements, the "year-and-a-day-rule" is no longer in use. However, if the death occurs three years after the original attack, then the Attorney-General's approval/permission will need to be granted before prosecutions can take place.

In the United States, many jurisdictions have abolished the rule as well. Abolition of the rule has been accomplished by enactment of statutory criminal codes, which had the effect of displacing the common-law definitions of crimes and corresponding defenses. In 2001's Rogers v. Tennessee, ussc 532 451 2001 , the Supreme Court of the United States held that retroactive application of a state supreme court decision abolishing the year-and-a-day rule did not violate the Ex Post Facto Clause of Article I of the United States Constitution.

Murder in English Law

In English law, murder is considered the most serious form of homicide where one person kills another either intending to cause death or intending to cause serious injury in a situation where death is virtually certain (originally termed malice aforethought even though it requires neither malice nor premeditation). Following the Murder (Abolition of Death Penalty) Act 1965, the mandatory sentence is life imprisonment.

Definition

The definition of the actus reus (Latin for "guilty act") murder most usually cited is that by Edward Coke:

When a man of sound memory and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King's Peace, . . . so as the party wounded, or hurt, et cetera, die of the wound or hurt, et cetera, within a year and a day after the same.

It should be noted it is no longer the case that the death of the victim must occur within a year and a day of the crime, according to the Law Reform (Year and a Day Rule) Act 1996

Elements

As most of the criminal offences Murder have the following elements.
1.Actus reus.
2.Mens rea.
3.Absence of a valid defence.

Defences

The first words refer to the excuses of insanity (now also including diminished responsibility) and infancy. Hence, if any of the general defences such as self-defence apply, an accused will be acquitted of murder, and if any of the partial defences introduced under the Homicide Act 1957 apply, the liability will be reduced to manslaughter.

Unlawfully

The reference to "unlawfully" indicates that some killings may be justifiable homicides.

Jurisdiction

The current rule of criminal jurisdiction is that a British subject may be charged with murder wherever the killing took place and no matter what the nationality of the victim (see s9 Offences Against The Person Act 1861).

King's peace

The phrase "under the [Queen's] peace" operates to exclude the killing of an enemy combatant during a time of war or other international conflict. In the case of R v Clegg (1995), a soldier in Northern Ireland was convicted of murder after shooting and killing a joyrider who had broken through the checkpoint. He was released on political pressure from the Attourney General. The important principle of the case is the requirement that the government officially considered the place in question to be a warzone.

Life in being

The defendant must cause the death of a reasonable creature in rerum natura (the whole phrase is usually translated as "a life in being", i.e. where the umbilical cord has been severed and the baby has a life independently of the mother). This was most recently considered in AG's Reference (No. 3 of 1994) (1998) AC 245 where the Lords reversed the Court of Appeal decision (reported at (1996) 2 WLR 412). How ever, if the person is pregnant the charges will be dropped. The defendant had stabbed a pregnant woman in the face, back and abdomen. Some days after she was released from hospital in an apparently stable condition, she went into labour and gave birth to a premature child, who died 121 days later. The child had been wounded in the original attack but the more substantial cause of death was her prematurity. According to Lords Mustill and Hope, an unborn child, although human and protected by the law in a number of different ways, is not a separate person from its mother. So, if the cause of death had been more clearly the antenatal injuries, this could have been a homicide, but there would have been no liability if the child had been miscarried or still-born because it would not have had a life independent of the mother. This case also holds that the doctrine of transferred malice cannot apply to transfer intent from the mother to the baby after it is born. Compare the situation in St George's Healthcare NHS Trust v S; R v Collins & Ors, ex parte S (1998) 3 AER where it was held a trespass when a hospital terminated a pregnancy involuntarily because the mother was diagnosed with severe pre-eclampsia. The court held that an unborn child's need for medical assistance does not prevail over the mother's autonomy and she is entitled to refuse consent to treatment, whether her own life or that of her unborn child depends on it (see a discussion in omission).

In the United States there has been statutory intervention in the form of the Unborn Victims of Violence Act 2004 to clarify the criminal law at a federal level, and several states have passed, or are considering, similar legislation. The Federal Government of the United States has jurisdiction over crimes only in limited circumstances: for example, when committed on federal property, against certain federal officials or employees, or by members of the armed forces. State governments have jurisdiction over all other crimes. The Act offers formal legal protection for the uterine child by specifying that the mens rea from the initial assault is transferred to the foetus without having to prove actual knowledge or intent with respect to the child, or even knowledge of the pregnancy. Such death or injury to the child is charged as a separate offence whether the accused acted with or without knowledge of the pregnancy, and the penalty is the same as if the death or injury had been caused to the woman. There is no indication that English law is prepared to accept the uterine child as a separate person for these purposes.

Year and a day

The requirement that death occur within a year and a day of any injury was abolished by the Law Reform (Year and a Day Rule) Act 1996 but, if the lapse of time exceeds three years, the Attorney General's consent must be obtained before a prosecution can be undertaken.

Causation

At the time of death, the defendant's acts or omissions must be the operating and most substantial cause of death with no novus actus interveniens (Latin for "new act breaking in") to break the chain of causation. Thus, the defendant cannot choose how the victim is to act, nor what personality to have. No matter whether brave or foolish, the defendant must expect the victim to:

try to escape and if he or she dies in that attempt, the chain of causation is not broken; or
try to fight back and so escalate the extent of the violence between them; or
seek medical treatment for the injuries sustained and, even if mistakes are made by the medical staff, this will not break the chain of causation unless the mistakes become the more substantial cause of death.

In short, any contingency that is foreseeable, will maintain the chain. Put the other way, only some unexpected act by a third party which places the original attack as a merely a background context, or some unpredictable natural phenomenon will break the chain.

Contemporaneity

The actus reus and mens rea (Latin for "guilty mind") must coincide in point of time. The so-called single transaction principle allows a conviction where the defendant has both actus reus and mens rea together during the sequence of events leading to death. In Thabo Meli v R (1954) 1 AER 373 the defendants thought they had already killed their victim when they threw him over a cliff and abandoned the "body". Thus, the act actually causing death was performed when the defendants did not have the intention to kill, the conviction was confirmed.

Mens rea

The mens rea of murder is either an intention to kill (R v Woolin) or an intention to cause grievous bodily harm (R v Moloney (1985) 1 AER 1025, R v Hancock & Shankland (1986) 1 AC 455, and R v Woollin (1999) AC 82). See intention (criminal) for a general discussion, and intention in English law. In Moloney, Lord Bridge was clear that, for the defendant to have the mens rea of murder, there must be something more than mere foresight or knowledge that death or serious injury is a "natural" consequence of the current activities: there must be clear evidence of an intention. This intention is proved not only when the defendant's motive or purpose is to kill or cause grievous bodily harm, but when death or grievous bodily harm is virtually certain occur and the defendant foresees death or grievous bodily harm as the virtually certain consequence of his act. Also note that, in Maloney, Lord Bridge held that the mens rea of murder need not be aimed at a specific person so, if a terrorist plants a bomb in a public place, it is irrelevant that no specific individual is targeted so long as one or more deaths is virtually certain. Further, it is irrelevant that the terrorist might claim justification for the act through a political agenda. How or why one person kills could only have relevance in the sentencing phase of a trial.

The tariff system

A life sentence for murder comprises three elements:

  1. A minimum term representing retribution without any prospect of parole;
  2. This starts on the expiry of the first and runs until the parole board decides that the person safely may be released on licence;
  3. At any time during the remainder of his or her life, the licence may be revoked and the offender will then be detained until it is considered safe to release him or her again on licence. This element does, in a real sense, represent a life sentence.

The tariff sets the minimum time that must be spent in jail before an offender can be considered for parole. Following the decision of the European Court of Human Rights in T v UK (2000) 30 EHRR 121 and the consequent statutory change in s60 Criminal Justice and Court Services Act 2000, the judge must now indicate in open court the appropriate tariff for an offender aged under 18 who is convicted of murder. The period specified by the judge is a 'sentence', which may be appealed or be the subject of an Attorney's General's Reference (see McBean (2002) 1 Cr. App. R. (S) 98). s271 Criminal Justice Act 2003 sets the same rule for adults. The Practice statement (Life sentences for murder) (2000) 2 Cr. App. R. 457 set the tariff for adults, i.e. one aged 18 or over at the time of the offence, with a starting point of 14 years as the minimum term for a case with no aggravating or mitigating factors, and lists the factors which might suggest either a higher or a lower than normal minimum term in an individual case. Mitigating factors include a mental illness, battered woman syndrome, using excessive force in self-defence or mercy killing. Professional or contract killings, political motivations, killing to subvert the justice system, e.g. killing a witness, etc., will be aggravating factors.

The general tariffs are available from the Sentencing Advisory Panel [1].

The trial judge has always been expected to make a recommended minimum term, and in 1983 the Home Secretary began amending (and usually increasing) the minimum term which was recommended by the trial judge. But this system was declared illegal in 2002 by both the High Court and the European Court of Human Rights following a successful challenge by convicted murderer Anthony Anderson. Anderson had been convicted of a double murder in 1988 and the trial judge recommended that he should serve at least 15 years before being considered for parole, but six years later his tariff was increased to 20 years by the Home Secretary Michael Howard.

Since then, trial judges have been obliged to recommend a minimum term and only the Lord Chief Justice has the power to make any amendments; either through an appeal by the Attorney General to increase a sentence which is seen as unduly lenient, or an appeal by the prisoner to have his or her minimum term reduced.

Life imprisonment has been the only option that judges have had when sentencing murderers since the death penalty was abolished in 1965, and the average life sentence prisoners spends 14 years behind bars. More serious cases, which included aggravating factors such as a rape or robbery, have seen murderers spend as much as 20 or even 30 years in prison. A handful of notorious multiple murderers have remained in prison until their death; these include Myra Hindley, Harold Shipman and Ronnie Kray. An estimated 20 prisoners in Britain have been recommended for lifelong imprisonment; these include Mark Hobson, Donald Neilson, Dennis Nilsen and Jeremy Bamber. Lengthy minimum terms have also been imposed on high profile killers including Ian Huntley (40 years) and Robert Black (35 years).

Manslaughter

The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind. This is particularly true within the law of homicide, where murder requires either the intent to kill, or a state of mind called malice, or malice aforethought, which may involve an unintentional killing but with a willful disregard for life. The less serious offense of manslaughter, on the other hand, is the taking of human life but in a manner considered by law as less culpable than murder. Manslaughter is usually broken down into two distinct categories: voluntary manslaughter and involuntary manslaughter.

Voluntary manslaughter

Voluntary manslaughter cases where the defendant may have an intent to cause death or serious injury, but the potential liability for murder is mitigated by the circumstances and state of mind. The most common example is the so-called heat of passion killing, such as where the defendant is provoked into a loss of control by unexpectedly finding a spouse in the arms of a lover or witnessing an attack against his or her child.

There have been two types of voluntary manslaughter recognized in law, although they are so closely related and in many cases indistinguishable that many jurisdictions do not differentiate between them.

  • Provocation. This is a killing caused by an event or situation which would probably cause a reasonable person to lose self-control and kill.
  • Heat of Passion. In this situation, the actions of another cause the defendant to act in the heat of the moment and without reflection. This falls under the provocation heading.
  • 'Diminished Responsibility is another defence to murder that will negate the charge down to voluntary manslaughter. An abnormality of the mind that causes the defendant to not know what he is doing at the time of the killing.

Involuntary manslaughter

Involuntary manslaughter, sometimes called criminally negligent homicide in the United States or culpable homicide in Scotland, occurs where there is no intention to kill or cause serious injury but death is due to recklessness or criminal negligence.

Criminal negligence

Negligence consists of conduct by an individual which is not reasonable -- that is, the individual did not act with the care and caution of a reasonable person in similar circumstances. This "reasonable person" is fictitious, of course, but reflects the standard of conduct which society wishes to impose. Violation of this standard may lead to civil liability for the consequences of the negligent behavior.

Negligence rises to the level of criminal negligence where the conduct reaches a higher degree of carelessness or inattention, perhaps to the point of indifference.

Recklessness

Recklessness or willful blindness is defined as a wanton disregard for the known dangers of a particular situation. An example of this would be throwing a brick off a bridge onto vehicular traffic below. There exists no intent to kill, consequently a resulting death may not be considered murder. However, the conduct is probably reckless, sometimes used interchangeably with criminally negligent, which may subject him to prosecution for involuntary manslaughter: the individual was aware of the risk of danger to others and willfuly disregarded it.

In many jurisdictions, such as in California, if the unintentional conduct amounts to such gross negligence as to amount to a willful or depraved indifference to human life, the mens rea may be considered to constitute malice. In such a case, the offense may be murder, often characterized as second degree murder.

In some jurisdictions, such as Victoria, recklessness is sufficient mens rea to justify a conviction for murder.

Vehicular or Intoxication manslaughter

Vehicular manslaughter is a kind of misdemeanor manslaughter, which holds persons liable for any death that occurs because of criminal negligence or a violation of traffic safety laws. A common use of the vehicular manslaughter laws involves prosecution for a death caused by driving under the influence (or driving with .08% blood alcohol content), although an independent infraction or negligence is usually also required.

In some US states, such as Texas, Intoxication Manslaughter is a distinctly defined offense. A person commits intoxication manslaughter if he or she operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and is intoxicated and by reason of that intoxication causes the death of another by accident or mistake. [21]

Intoxication manslaughter, vehicular manslaughter and other similar offenses require a lesser mens rea than other manslaughter offenses. Furthermore, the fact that the defendant is entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense. [22] For example, in Texas, to prove intoxication manslaugher it is not necessary to prove the person was negligent in causing the death of another, only that they were intoxicated and operated a motor vehicle and someone died.

Misdemeanor manslaughter

In the United States, this is a lesser version of felony murder and covers a person who causes the death of another while committing a misdemeanor -- that is, a violation of law that does not rise to the level of a felony. This may automatically lead to a conviction for the homicide if the misdemeanor involved a law designed to protect human life. Many safety laws are infractions, meaning that a person can be convicted regardless of mens rea.

Manslaughter in English law

In the English law of homicide, manslaughter is a less serious offence than murder with the law differentiating between levels of fault based on the mens rea (Latin for a "guilty mind"). Manslaughter may be either:

  • Voluntary where the accused intentionally kills another but is not liable for murder either because he or she falls within the scope of a mitigatory defence such as provocation or diminished responsibility that will reduce what would otherwise have been murder to manslaughter, or because he or she was the survivor of a suicide pact (s2(4) Homicide Act 1957).
  • Involuntary which occurs when the accused did not intend to cause death or serious injury but caused the death of another through recklessness or criminal negligence. For these purposes, recklessness is defined as a blatent disregard for the dangers of a particular situation. An example of this would be dropping a brick off a bridge, which lands on a person's head, killing him. Since the intent is not to kill the victim, but simply to drop the brick, the mens rea required for murder does not exist because the act is not aimed at any one person. But if in dropping the brick, there is a good chance of injuring someone, the person who drops it will be reckless. This form of manslaughter is usually dealt with as an "unlawful act manslaughter" or "constructive manslaughter".

In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option (see lesser included offense). The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter.

The subjectivist theory of choice

This theory regards individuals as autonomous beings who are capable of choice and deserving of respect. Thus, moral guilt and criminal liability should be imposed only on people who can be said to have chosen to behave in a certain way, or to have caused or unreasonably risked causing certain consequences. This contrasts with utilitarianism which emphasises the social benefit implicit in the deterrent value of punishment rather than the justice of the punishment for the particular offender. Most crimes require a mens rea element based on consequences intended or knowingly risked, and sentencing is usually based on a correspondence between the degree of perceived fault and the punishment representing just deserts for that fault. Some societies therefore place a limit on the number of situations in which a person may be held liable for inadvertently causing loss or injury, always requiring a subjective mens rea for a conviction.

But Duff proposes the case of a bridegroom who misses his wedding because it slips his mind when he is in the pub. Orthodox subjectivity represented by mistake as to the victim's consent in rape cases (see DPP v Morgan (1976) AC 182 albeit now repealed by the Sexual Offences Act 2003) either accepts subjective beliefs at the relevant time as a potential defence, or otherwise deems the accused less culpable for sentencing. The bride, however, would rightly condemn the bridegroom because he obviously did not care, and this attitude is sufficient to make him blameworthy. Duff argues that this example bases condemnation on a subjective basis because all currently held attitudes are subjective, and the failures to remember or foresee are an existing state of mind at the time the actus reus occurs and should considered culpable, particularly when death is the consequence.

Manslaughter by gross negligence

Under English law, where a person causes death through extreme carelessness or incompetence, gross negligence is required. While the specifics of negligence may vary from one jurisdiction to another, it is generally defined as failure to exercise a reasonable level of precaution given the circumstances and so may include both acts and omissions. The defendants in such cases are often people carrying out jobs that require special skills or care, such as doctors, police or prison officers, or electricians, who fail to meet the standard which could be expected from a reasnoble person of the same profession and cause death. In R v Bateman (1925) 19 Cr. App. R. 8 the Court of Criminal Appeal held that gross negligence manslaughter involved the following elements:

  1. the defendant owed a duty to the deceased to take care;
  2. the defendant breached this duty;
  3. the breach caused the death of the deceased; and
  4. the defendant's negligence was gross, that is, it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment.

The House of Lords in Seymour (1983) 2 AC 493 sought to identify the mens rea for "motor manslaughter" (negligently causing death when driving a motor vehicle). Reference was made to Caldwell (1982) AC 341 and Lawrence (1982) AC 510 which held that a person was reckless if:

  1. he did an act which in fact created an obvious and serious risk of injury to the person or substantial damage to property; and
  2. when he did the act he either had not given any thought to the possibility of there being any such risk or had recognised that there was some risk involved and had nonetheless gone on to do it.

The conclusion was that for motor manslaughter (and, by implication, for all cases of gross negligence), it was more appropriate to adopt this definition of recklessness. Consequently, if the defendant created an obvious and serious risk of causing physical injury to someone, there could be liability whether there was simple inadvertence or conscious risk-taking. It was no longer a defence to argue that the negligence had not been gross.

In Adomako (1995) 1 AC 171 an anaesthetist failed to notice that a tube had become disconnected from the ventilator and the patient died. Lord Mackay disapproved Seymour and held that the Bateman test of gross negligence was the appropriate test in manslaughter cases involving a breach of duty, allowing the jury to consider the accused's conduct in all the surrounding circumstances, and to convict only if the negligence was very serious. Individuals have a duty to act in the following situations:

  • to care for certain defined classes of helpless relatives, e.g. spouses must take care of each other, and parents must look after their dependent children. In R v Stone and Dobinson (1977) QB 354, an elderly woman with anorexia nervosa, came to stay with her brother and his cohabitee, who were both of low intelligence, and subsequently starved herself to death. The Court of Appeal held that the question whether the couple owed a duty to care for the deceased was a question of fact for the jury, which was entitled to take into account the facts that she was a relative of one of the appellants, that she was occupying a room in his house, and that the other appellant had undertaken the duty to care for her by trying to wash her and taking food to her.
  • where there is a contract (even if the person injury was outside the contractual relationship and, in the civil law would be barred by privity from enforcing the contract). In R v Pittwood (1902) 19 TLR 37, a railway crossing gatekeeper had opened the gate to let a cart pass and forgot to shut it again. Later a hay cart was struck by a train while crossing. He was convicted of manslaughter. It was argued on his behalf that he owed a duty only to his employers, the railway company, with whom he had contracted. Wright J, held, however, that the man was paid to keep the gate shut and protect the public so had a duty to act. In contracts relating both to employment and to the provision of services, R v Yaqoob (2005) EWCA Crim 1269 considered a partner in a taxi firm who was responsible for making all necessary arrangements for the inspection and maintenance of a minibus which had overturned after its tyre burst, killing one of its passengers. He was convicted of manslaughter because the failure properly to maintain the minibus was the direct cause of the accident and there was an implied duty owed both to other members of the partnership and to those renting the vehicle, to inspect and maintain beyond the standard required for an MOT test, council inspections, and other duties imposed by regulation. The jury was competent to assess whether the failure to discharge that implied duty was gross negligence without hearing any expert evidence; these were not technical issues and they did not need expert help. The sentence of four years imprisonment was within the sentencing band and not excessive.

In Attorney-General’s Reference (No 2 of 1999) (2000) 3 AER 182, a case on corporate manslaughter that arose out of the Southall rail crash, the Court of Appeal decided the defendant's subjective state of mind (i.e. whether there was conscious risk-taking) is irrelevant and, therefore, so is the question of recklessness, leaving the objective test as the only test for liability. Rose LJ, said:

"Although there may be cases where the defendant’s state of mind is relevant to the jury’s consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a pre-requisite to a conviction for manslaughter by gross negligence. The Adomako test is objective, but a defendant who is reckless as defined in Stone may well be the more readily found to be grossly negligent to a criminal degree.
In our judgment unless an identified individual’s conduct, characterisable as gross criminal negligence, can be attributed to the company, the company is not, in the present state of the common law, liable for manslaughter. Civil negligence rules are not apt to confer criminal liability…the identification principle remains the only basis in common law for corporate liability for gross negligence manslaughter. (see imputation). This was only persuasive authority for the law of manslaughter at large, but R v DPP, ex p Jones (2000) (QBD) IRLR 373 which said that the test of negligent manslaughter is objective, confirmed Attorney General’s Reference (No 2 of 1999) as a correct general statement of law.

Motor manslaughter

Because of a reluctance by juries to convict when the charge was manslaughter, a statutory offence of "causing death by dangerous driving" was introduced. Following the Road Traffic Law Review Committee (1988), the Road Traffic Act 1991 abandoned recklessness in favour of the pre-statutory objective test of "dangerousness", i.e. did the driving fall far below the standard of the competent and careful driver. The Committee also recommended that manslaughter should be an optional charge for the more serious driving cases. Note the possibility of charging an aggravated TWOC for less seriously dangerous driving where death results.

Unlawful act manslaughter

Under English law, according to R v Creamer (1966) 1 QB 72, a person is guilty of involuntary manslaughter when he or she intends an unlawful act that is likely to do harm to the person, and death results which was neither foreseen nor intended. The alternative name for this crime is constructive manslaughter. Although the accused did not intend to cause serious harm or foresee the risk of doing so, and although an objective observer would not necessarily have predicted that serious harm would result, the accused's responsibility for causing death is constructed from the fault in committing what might have been a minor criminal act.

In R v Dawson (1985) 81 Cr. App. R. 150 a petrol station attendant with a weak heart died of heart failure when the appellant attempted a robbery of the station. In judging whether this act was sufficiently dangerous, the Court of Appeal applied a test based on the "sober and reasonable" bystander who could be assumed to know that the use of a replica gun was likely to terrify people and so be a danger to those with a weak heart. Note the aggravated form of criminal damage with intent to endanger life under s1(2) Criminal Damage Act 1971 which could provide the unlawful act if the damage actually causes death. But R v Carey, C and F (2006) EWCA Crim 17 limits the scope of unlawful act manslaughter. An argument became violent and the first defendant punched and kicked one victim. The second defendant assaulted the deceased by pulling her hair back and punching her in the face. The third defendant assaulted another. The deceased was one of the first to run away, after which she felt faint, and later died of a heart condition (ventricular fibrillation or dysrhythmia) which was congenital but which had not been diagnosed before her death. The unlawful act was said to be the affray and the judge held that it was legitimate to aggregate the violence by the other defendants in order to decide whether the affray had subjected the deceased to the threat of at least some physical harm, and so had been a cause of death. On appeal, it was inappropriate to hold the defendants liable for the death. There must be an unlawful act that was dangerous in the sense that sober and reasonable persons would recognise that the act was such as to subject Y to the risk of physical harm. In turn, that act must cause the death. When deciding whether an act is dangerous, knowledge of the victim's characteristics may be relevant. In this case, no reasonable person would have been aware of the victim's heart condition which distinguishes this case from Dawson, and from R v Watson (1989) 1 WLR 684 in which the victim's approximate age (he was 87 years old) and frail state would have been obvious to a reasonable person. A sober and reasonable person would not have foreseen that an apparently healthy person of 15 years would suffer shock as a result of it. The court held that the deceased's death was not caused by injuries that were a foreseeable result of the affray. The assault by the second defendant was an unlawful act causing death. The other two defendants could have been convicted by virtue of common purpose given that the death was an accidental departure from the general plan of the affray. But the Crown did not elect to present the case in this way, but pleaded the case as a public order group activity. The result would be that if anyone died in a general disturbance amounting to an affray, all those who participated could be convicted of manslaughter which would be against public policy. Deaths in a general disturbance are too remote to be caused by all participants.

Thus, a punch which causes a person to fall will almost inevitably satisfy the test of dangerousness, and where the victim falls and suffers a fatal head injury the accused is guilty of manslaughter. It is foreseeable that the victim is at risk of suffering some physical harm (albeit not serious harm) from such a punch and that is sufficient. Physical harm includes shock. The reason why the death resulting from the attempted robbery of the 60 year old petrol station attendant was not manslaughter was that the attempted robbery was not dangerous in the relevant sense. It was not foreseeable that an apparently healthy 60 year old man would suffer shock and a heart attack as a result of such an attempted robbery. But the jury properly found that it was foreseeable that an obviously frail and very old man was at risk of suffering shock leading to a heart attack as a result of a burglary committed at his home late at night.

In R v Charles James Brown (2005) EWCA Crim 2868, following the break-up of his relationship with his girlfriend, at about 3 pm., the applicant sent a text message to his mother saying that he did not want to live any more. He then drove his car against the flow of traffic along the hard shoulder of the A1(M) at high speed, before moving into the carriageway, still accelerating and straddling the centre line. He then crashed, head on, into an oncoming car, killing the passenger and injuring many others in the resulting consequential crashes. A sentence of 10 years' detention in a young offender institution was upheld because although the intentional focus might have been only on suicide, the defendant must have known from the way he was driving that he would kill or injure at least one other person.

Canada

In 2004 the homicide rate in Canada was 2.0 per 100,000 people or approximately 650 homicides per year. The rate has remained close to stable for the past 10 years. This is equivalent to numbers in most of the western world, except the U.S. which has triple the number per capita. The main methods of murder in Canada are shootings (30%), stabbings (30%), and beatings (22%). There are four types of crime, as defined in the Canadian Criminal Code, that can be considered murder:

  • first degree murder - the intentional killing of another person (1) with premeditation, (2) in the furtherance of another serious criminal offense (kidnapping, robbery, etc.), or (3) where the victim is an identified peace officer
  • second degree murder - the intentional killing of another person without premeditation (i.e. killing in the heat of the moment). Formerly, certain types of killings were also deemed to be murder, regardless of lack of intent (eg. where death was caused in the course of committing of a serious crime, such as sexual assault). However, these so-called "constructive" murder provisions have, by and large, been repealed or struck down on constitutional grounds.
  • manslaughter - the killing of another person where there is no intent to kill
  • infanticide - the killing of an infant while still recovering from the birth

The maximum penalties for murder are:

  • first degree murder - mandatory life imprisonment without the possibility of parole for 25 years (can be paroled under the Faint-Hope Clause after 15 years imprisonment, but such a reduction is rarely given and is not available for multiple murders)
  • second degree murder - mandatory life imprisonment without the possibility of parole for 10-25 years (parole eligibility determined by the judge at sentencing) (exception: if the person had committed another murder in their past, parole eligibility is 25 years)
  • manslaughter - maximum life imprisonment; if firearm was used to commit the offence, the minimum penalty is 4 years' imprisonment
  • infanticide - maximum 5 years imprisonment
  • There is a clause where persons convicted of multiple murder, and deemed unable for rehabilitation, to be declared a 'dangerous offender' upon examination of doctors and psychiatrists (usually for sexually related murder). Persons declared as dangerous offenders have an undetermined prison sentence, although it usually means an increase of 10 years (possibly to 35 or more years).

For every murder in Canada there are about 1.5 attempted murders. Attempted murder carries the same consequences as murder itself; it is the intent, not the result, that determines the sentence.

About one in three Canadian murders are committed by a family member. One in eight is gang related. About 80% of murderers in Canada are caught within a year.

Finland

In Finland, murder is defined as manslaughter with at least one of four aggravating factors:

  1. Deliberate intent
  2. Exceptional brutality or cruelty
  3. Significantly endangering public safety
  4. Committed against a public official engaged in enforcing the law.

Further, the offence considered as a whole must be aggravated.

The only possible punishment for murder is life imprisonment. Typically, the prisoner will be pardoned by the President after serving 12 to 14 years of his sentence, but this is not automatic.

In jurisprudence, the comparison of an actual crime against "especially brutal or cruel way"-standard has been understood to mean comparison to "usual" homicide cases. In recent cases, the Finnish Supreme Court has not considered a single axe stroke on the head, or strangulation to be "especially brutal or cruel". On the other hand, causing death by jumping on a person's chest and head and firing over 10 times upon a person's torso have been considered to fulfill the standard.

The only sentence for murder is life in prison. Until 2006, this meant an actual life sentence which could be pardoned only by the president. However, the presidents have since 1960s regularly given pardon to practically all offenders after a time of 12-15 years. In 2006, the legislation was changed so that all life sentences are reviewed by an appellate court after they have been executed for 12 years. If the convict is still deemed a danger to society, his case will be reviewed every two years after this. Involuntary confinement to a psychiatric institution may also result, sometimes after the sentence is served. The involuntary treatment ends when the psychiatrist decides so, or when a court decrees it no longer necessary in a periodical review.

There is also the crime of "death" (surma), which is a "manslaughter" under mitigating circumstances, with the punishment of four to ten years. Involuntary manslaughter (kuolemantuottamus) has a maximum punishment of two years of imprisonment or fine. Infanticide carries a punishment of at least four months and at most four years in prison.

Germany

In Germany the term Mord (murder) is officially used for the premeditated killing of another person, as it can be read in § 211 of the German criminal law, Strafgesetzbuch (StGB); citation:

(1) The murderer shall be punished with imprisonment for life.

(2) A murderer is, whoever kills a human being out of murderous lust, to satisfy his sexual desires, from greed or otherwise base motives, treacherously or cruelly or with means dangerous to the public or in order to make another crime possible or cover it up.

A killing which is not a murder may be either Totschlag (manslaughter) according to § 212 StGB or fahrlässige Tötung (negligent homicide or killing by carelessness) within the scope of § 222 StGB. Also, if the death is not a foreseeable consequence of an intended or not intended act of violence, it might be classified as Körperverletzung mit Todesfolge (injury resulting in death). If the victim earnestly wanted to be killed (for example, when suffering an incurable disease) the crime would be Tötung auf Verlangen (killing on demand, § 216 StGB) which would result in 6 months to 5 years in prison (usually suspended) – basically, mercy killing. In 2002, there was a cannibal case in which the offender claimed that the victim wanted to be killed. The court convicted him of manslaughter. Both prosecution and defense appealed, the prosecution in order to reach a guilty of murder verdict, the defense in order to reduce the charge to killing on demand. He was eventually convicted of murder.

The penalty for Mord is lifelong imprisonment, which is usually suspended after 17-18 years (15 years minimum) on a probation of 5 years or if the court decided on a special gravity (Feststellung der besonderen Schwere der Schuld), the sentence can only be suspended much later, earliest after 18 years but usually after 22-23 years (the law states that a suspension after 15 years is not possible for "special gravity" crimes, but provides no explicit minimum served time). The penalty for Totschlag is five to fifteen years in prison, up to life in prison (15 years served minimum) in especially grave cases and one to ten years for lesser cases ("minderschwerer Fall", § 213)

Before 1949 some cases of murder in Germany mandated capital punishment. Howeve, due to the Nazi mass murders and unsolicidated death sentences Death penalty was abolished in Germany in 1949 when the Grundgesetz, Germany's current constitution came into use.

Israel

There are five types of homicide in Israel:

  1. Murder. The premeditated killing of a person, or the intentional killing of a person whilst committing, preparing for, or escaping from any crime, is murder. The mandatory punishment for this crime is life imprisonment. Life is usually commuted (clemency from the President) to 30 years from which a third can be deducted by the parole board for good behaviour. Arab Militants are not usually granted pardons or parole other than as part of deals with Arab militant organizations or foreign governments and in exchange for captured Israelis (or their bodies).
  2. Reduced sentence murder. If the murderer did not fully understand his actions because of mental defect (but not legal insanity or imbecility), or in circumstances close to self-defence, necessity or duress or where the murderer suffered from serious mental distress because of long-term abuse, the court can give a sentence of less than life.
  3. Manslaughter. The deliberate killing of a person without premeditation (or the other circumstances of murder) is manslaughter for which the maximum sentence is 20 years.
  4. Negligent killing or vehicular killing. Maximum sentence is 3 years (minimum of 11 months for the driver).
  5. Infanticide A mother kills her baby of less than 12 months and could show she was suffering from the effects of the birth or breast-feeding. Maximum sentence is 5 years.

Italy

By Italian law, murder (omicidio) is regulated by articles 575-582, 584-585, and 589 of the Penal Code (Codice Penale). In general, according to Art.575, "whoever causes the death of a human being is punishable by no less than 21 years in prison"; nevertheless, the law indicates a series of circumstances under which murder has to be punished with life in prison.

It must also be noted that, according to Italian law, any sentence of more than 5 years perpetually deprives (Interdizione perpetua dai Pubblici Uffici) the condemned person of: the voting rights; the ability to exercise any public office; the ability to be employed in any governmental or para-statal position (articles 19, 28, 29). The convict for life is also deprived of his/her quality of parent: the children are either given in custody to the other parent or hosted in a public structure (art.32).

In detail, according to articles 576 and 577 is punishable with life imprisonment murder committed:

  1. in order to commit another crime, or in order to escape, of favor, or take advantage from another crime (art.61, sect.2);
  2. against a next of kin (parent or child) and either through insidious means, with premeditation, cruelly, of for futile motives;
  3. by a fugitive in order to escape capture, or in order to acquire means of subsistence;
  4. while raping or sexually assaulting a person (articles 519, 520, 521).
  5. in a cruel way and/or through the use of torture (art.61, sect.1);
  6. for abject and/or futile motives (art.61, sect.4);
  7. against a next of kin (parent or child);
  8. through insidious means;
  9. with premeditation.

Cases 1 through 4 (art.576) used to be considered capital murder, and therefore punishable by death by firing squad. Since 1946, though, death penalty was discontinued in Italy, and death was substituted with life imprisonment without possibility of parole or probation other than by Presidential pardon. Sentences for murder under cases 5 through 9 (art.577), instead, are subject to parole or probation.

Besides the criminal murder detailed above, in Italian law the following cases also exist:

  1. Infanticide (Infanticidio in condizioni di abbandono materiale e morale), murder of the infant immediately following the birth committed by the mother who is in conditions of mental of moral disorder, is punishable with a sentence between 4 and 12 years (art. 578).
  2. Killing on demand (Omicidio del consenziente), the action to kill someone with his/her consent, is punishable with a sentence between 6 and 15 years. This, however, is considered murder if the victim, when giving his/her consent, was under the age of 18, intoxicated, mentally disable, or if the consent was obtained through violence, menace, or deception (art.579).
  3. Assistance or instigation of suicide (Istigazione o aiuto al suicidio), the action to help someone to commit suicide, or to convince someone to commit suicide, is punishable with a sentence between 5 and 12 years if the suicide succeeds, or between 1 and 5 years if it does not succeed. This, however, is considered murder if the suicide is under the age of 14 (art.580).
  4. Injury resulting in death (Omicidio preterintenzionale) occurs when, as a not foreseeable result of a deliberated or not deliberated act of violence not meant to kill (articles 581,582), the death of a person occurs. This crime is punishable with a sentence between 10 and 18 years (art.584). This sentence can be increased from one third to one half (up to 27 years) if a circumstance stated by articles 576 and 577 occurs, or if a weapon is used (art.585).
  5. Manslaughter (Omicidio colposo), the action of causing the death of a person without intention, is punished with a sentence between 6 months and 5 years. If the victims are more than one as a consequence of the same act, multiple counts can be added up to 12 years in prison (art.589).

The Netherlands

By Dutch law, murder (moord) is punishable by a maximum sentence of life imprisonment, which is the longest prison sentence the law allows. A common misconception is that the maximum sentence is 30 years (20 until 2006): this is the longest sentence that can be imposed other than life imprisonment. However, a life sentence is only imposed under special circumstances, such as multiple murders or prior convictions. The average sentence is 12 to 15 years. In addition to a prison sentence, the judge may sentence the suspect to terbeschikkingstelling (TBS), or 'terbeschikkingstelling', meaning detention in a psychiatric institution, sometimes including forced treatment. TBS is imposed for a number of years (most often in relation to the severity of the crime) and thereafter prolonged if deemed necessary by a committee of psychiatrists. This can be done indefinitely, and has therefore been criticized as being a life sentence in disguise. Voluntary manslaughter (doodslag) is punishable by a prison sentence of up to 15 years, or life imprisonment when committed during the commission of a crime or as an act of terrorism. Involuntary manslaughter (dood door schuld) is punishable by a prison sentence of up to two years. If involuntary manslaughter is caused by recklessness, the maximum sentence that can be imposed is four years.

Norway

In Norway any act of murder (mord or drap) is generally split into three categories; planned murder, intentional murder or murder as a result of neglect.

Categories of murder

Planned murder (overlagt drap) is a murder committed with the intention of taking the life of another, by a person fully sane and aware of what he/she is doing, and having planned the act of murder ahead. Planned murder is punished with up to 21 years of imprisonment. Under special circumstances, like a murder of severe cruelty, or if there is reason to believe the offender may commit murder again, additional years of imprisonment can be given.[2]

Intentional murder (forsettlig drap) is a murder committed with the intention of taking the life of another, by a person fully sane and aware of what he/she is doing, without the act of murder having been planned ahead. Murder of passion usually falls into this category. Intentional murder is punished by 6 to 12 years of imprisonment.[3]

Murder as a result of neglect (uaktsomt drap) is defined as a case were someone has been killed as a result of the offenders neglect. For example, a car driver may be convicted for murder if someone is killed as a result of his/her careless driving. Murder as a result of neglect is punishable by 3-6 years, depending on the circumstances. [4]

Other forms of murder

Assisted suicide is generally illegal in Norway, and will in most cases be treated as planned murder, although the punishment may be milder depending on the circumstances.

Euthanasia (aktiv dødshjelp) has been much debated in Norway. Some groups have expressed that it should be legal in cases where the victim is sane and fully aware of what he/she is asking for. Acts of euthanasia is however illegal, and is treated as any other form of assisted suicide.

Romania

According to the Romanian Penal Code, a person can face a penalty ranging from 10 to 25 years or life imprisonment for murder. (There are also mandatory restrictions of some constitutional rights for all types of murder.)

Degrees of murder:

  • Murder (10 to 20 years)

Killing a person when no aggravating circumstances apply.

  • Qualified murder (15 to 25 years)

Aggravating circumstances: a)with premeditation b)concerning a material interest c) against spouse or close relative d)taking advantage of victim's impossiblity of self-defence e) when putting in danger the lives of multiple persons f)concerning job attributions of the victim g)for facilitating or hiding another crime h)in public

  • Extremely grave murder (15 to 25 years or life imprisonment)

Aggravating circumstances: a)committed in a cruel way b)against two or more persons c)by a person who had already committed a murder d)in order to hide a robbery e)against a pregnant woman f)against a policeman, gendarme, magistrate or soldier (in connection with their public duties)

  • Negligent or accidental murder (1 to 5 years in simple form)

Aggravating circumstances: a)caused by a professional in connection with his job for not respecting the legal dispositions (2 to 7 years) b) by a vehicle driver with blood alcohol concentration (BAC) above legal limits or in a drunk state (5 to 15 years) c)by a professional in a drunk state - in connection with his job duties (5 to 15 years) e)when causing the death of two or more persons (5 to 15 years)

  • Infanticide (2 to 7 years)

Switzerland

In Switzerland murder (Mord) is also used for the premeditated killing of another person, but only if the motives are cruel, disgusting or show an overall disrespect of human life. Penalty ranges from ten years to life in prison. Furthermore, homicide is considered murder if it is cruel (e.g. inflicts great pain on the victim) and/or unusual, done so using explosives or arson, or if it is done to satisfy perverse lusts. Any homicide not meeting these standards is considered to be a killing (Tötung), and the penalty is not as heavy. Most homicides in Switzerland are considered killings, with the penalty ranging from 5 to 20 years.

The Swiss equivalent for manslaughter is Totschlag. Killers are sentenced for Totschlag when they committed the crime in a very, and especially excusable, state of excitement (a "Crime of passion"). For example, a wife who's been mistreated by her husband for years, and kills him in a fit of rage, would be sentenced for Totschlag. The penalty is one to five years in prison.

There are many other privileged variants of killing, similar to manslaughter, such as killing on demand of the "victim"; or assisted suicide, in which case the punishment is considerably lower; this latter is only punishable if there are selfish motives. The "assisted suicide" in general is not punishable.

The relevant articles of the Swiss Penal Code (Strafgesetzbuch) are 111 (killing), 112 (murder), 113 (manslaughter), 114 (killing with demand of the victim), 115 (assisted suicide).

United Kingdom

In English law, the definition of murder is:

The killing of another person whether by act or omission having the intention to kill (with "malice aforethought").

Contrast this with the original definition by Sir Edward Coke in 1797 of:

Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same.

Note that it is no longer necessary for the victim to die within a year and a day of the offence.

Specific statutory instances of situations where death is caused are:

  • Infanticide - Under s1 Infanticide Act 1938, the intentional killing of an infant under 1-year-old by a mother suffering from post-natal depression or other post-natal disturbance represents an early form of diminished responsibility defence and needs reform to bring it into line with modern medical understanding, and
  • Causing death by dangerous driving (of a motor vehicle) was introduced because jurors, many of whom were drivers, thought the charge of manslaughter to carry too great a level of stigma for the degree of fault actually shown by some drivers and refused to convict when the charge was manslaughter. Now motor manslaughter is considered an acceptable charge for the more seriously dangerous examples of driving resulting in death, with aggravated TWOC for the least seriously dangerous driving resulting in death.

The aggravated form of criminal damage, including arson, under s1(2) Criminal Damage Act 1971 could be the anticipatory offence rather than a charge of attempted murder.

Any other killing would be considered either manslaughter in English law or an accident.

  • Voluntary manslaughter is murder mitigated to manslaughter by virtue of the statutory defences under the Homicide Act 1957, namely provocation in English law|provocation, diminished responsibility or suicide pact.
  • Involuntary manslaughter is the killing of another person whether by act or omission either while committing an unlawful act (known as constructive manslaughter) or by gross negligence.

English Law also allows for transferred malice. For example, where a man fires a gun with the intent to kill person A but the shot misses and kills an otherwise unconnected person B, the intent to kill transfers from person A to person B and a charge of murder would stand. The accused could also be charged with the attempted murder of A.

As to mens rea, the model direction to be given to juries for Intention in English law following R v. Woollin [5], is a modified version of that proposed by Lord Lane, C.J. in R v Nedrick [1986] 1 WLR 1025, namely:

Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case, the decision being for the jury to decide on a consideration of all the evidence.

The defences of duress and necessity in English law are excluded from murder cases. An exception is Re A [2000], a case involving a pair of conjoined twins. However, the judge noted the legal adage that 'hard cases make bad law' and recommended that the precedent should not be followed.

Comparatively recent adaptations to the English law of murder include the abolition of the "year and a day rule", and the proposed introduction of a less restrictive regime for corporate manslaughter. The Law Commission Consultation Paper No. 177 also advocates a redefinition of murder and a limitation of the scope of manslaughter [6]

The United States

In the United States, the principle of dual sovereignty applies to homicide, as to other crimes. If murder is committed within the borders of a state, that state has jurisdiction. If the victim is a federal official, an ambassador, consul or other foreign official under the protection of the United States, or if the crime took place on federal property or involved crossing state borders, or in a manner that substantially affects interstate commerce or national security, then the Federal Government also has jurisdiction. If a crime is not committed within any state, then Federal jurisdiction is exclusive: examples include the District of Columbia, naval or U.S.-flagged merchant vessels in international waters, or a U.S. military base. In cases where a murder involves both state and federal jurisdiction, the offender can be tried and punished separately for each crime without raising issues of double jeopardy.

Modern codifications tend to create a genus of offenses, known collectively as homicide, of which murder is the most serious species, followed by manslaughter which is less serious, and ending finally in justifiable homicide, which is not a crime at all. Because there are 51 jurisdictions, each with its own criminal code, this section treats only the crime of murder, and does not deal with state-by-state specifics.

At base, murder consists of an intentional unlawful act with a design to kill and fatal consequences. Generally, an intention to cause great bodily harm is considered indistinguishable from an intention to kill, as is an act so inherently dangerous that any reasonable person would realize the likelihood of fatality. Thus, if the defendant hurled the victim from a bridge, it is no defense to argue that harm was not contemplated, or that the defendant hoped only to break bones.

The intent to commit murder is often called malice aforethought, and can be inferred when the defendant commits an act that shows depraved indifference to human life, or (in federal court and those states that apply the felony murder rule) whenever a victim is killed during the commission of another felony, whether or not the defendant intended the killing, or even committed the fatal act. In this case, the intention to place the victim in great bodily harm is inferred from the defendant's intent to commit the felony. Some states also require the underlying felony to be an 'inherently' dangerous one.

Degrees of murder

Before the famous case of Furman v. Georgia in 1972, most states distinguished two degrees of murder. While the rules differed by state, a reasonably common scheme was that of Pennsylvania, passed in 1794: "Murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree."[7] "Murder one", as the term was popularized by novels and television, carried a penalty of death, or life in prison, while the penalty for "murder two" was generally around 20 years in prison. After the Supreme Court placed new requirements on the imposition of the death penalty, most states adopted one of two schemes. In both, third degree murder became the catch-all, while first degree murder was split. The difference was whether some or all first degree murders should be eligible for the most serious penalty (generally death, but sometimes life in prison without the possibility of parole.).

  • The first scheme, used by Pennsylvania among other states:
  1. First Degree Murder: All premeditated murders, and (in some states) murders involving certain especially dangerous felonies, such as arson or rape, or committed by an inmate serving a life sentence.
  2. Second Degree Murder: Any felony murder not a first degree murder.
  3. Third Degree Murder: All other murder.
  • The second scheme, used by New York among other states, as well as the Model Penal Code:
  1. First Degree Murder: Murder involving special circumstances, such as murder of a police officer, judge, fireman or witness to a crime; multiple murders; and torture or especially heinous murders. Note that a "regular" premeditated murder, absent such special circumstances, is not a first-degree murder; murders by poison or "lying in wait" are not per se first-degree murders.
  2. Second Degree Murder: Any premeditated murder or felony murder that does not involve special circumstances.

Some states, such as California, simply preserved the old distinction between two degrees and have no offense called third degree murder. They simply have "first-degree murder" (leading to life in prison) and "first-degree murder with special circumstances" (leading to death), while second-degree murder continues to be the default category.

Other states use the term "capital murder" for those offenses that merit death, and the term is often used even in states whose statutes do not include the term. As of 2006, 38 states and the federal government have laws allowing capital punishment for certain murders and related crimes (such as treason and terrorism). The penalty is rarely asked for and more rarely imposed, but it has generated tremendous public debate. See also capital punishment and capital punishment in the United States.

Murder of a fetus

Under the common law, if an assault on a pregnant woman resulted in a stillbirth, it was not considered murder; the child had to have breathed at least once to be murdered. Remedies were limited to criminal penalties for the assault on the woman, and a tort action for loss of the economic services of the eventual child and/or emotional pain and suffering. With the widespread adoption of laws against abortion, the assailant could of course be charged with that offense, but the penalty was often only a fine and a few days in jail.

When the Supreme Court greatly restricted laws prohibiting abortions in its famous Roe v. Wade decision (1973) even those sanctions became harder to use. This, among other factors, meant that a more brutal attack, ensuring that the baby died without breathing, would result in a lesser charge. Various states passed "fetal homicide" laws, making killing of an unborn child murder; the laws differ about the stage of development at which the child is protected. After several well-publicized cases, Congress passed the Unborn Victims of Violence Act, which specifically criminalizes harming a fetus, with the same penalties as for a similar attack upon a person, when the attack would be a federal offense. Most such attacks fall under state laws; for instance, Scott Peterson was convicted of murdering his unborn son as well as his wife under Californian pre-existing fetal homicide law.

Bibliography

  • Duff, R. A. "Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law?" Vol. 6. Buffalo Criminal Law Review, 147 [8]
  • Duff, R. A. (1990). Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Philosophical Introductions). London: Blackwell. ISBN 0-631-15312-8
  • Gardner, Simon. (1995). "Manslaughter by Gross Negligence" 111 Law Quarterly Review 22

References

  1. Genesis 9:5, 6.
  2. Nahmanides, Pirush al HaTorah (Commentary on the Pentateuch), edited by Chavel, page 62.
  3. Lichtenstein, Aaron. "The Seven Laws of Noah". New York: The Rabbi Jacob Joseph School Press and Z. Berman Books, 2d ed. 1986
  4. See Maimonides, Code, "Laws on Kings" 10:12.
  5. Maimonicies, Sefer Ha-Mizwoth (Kritische Ausgabe). Edited by Chaim
  6. Mishneh Torah, Laws of Kings, chapter 9, law 4
  7. Shulchan Arukh, Yoreh Deah, chapter 305, law 23
  8. Babylonian Talmud, Sanhedrin 57b
  9. Mishneh Torah, Laws of Kings, chapter 9, law 4
  10. Ibid., Laws of Wounds and Damages, chapter 8, law 10, see commentary of Mishneh l'Melech
  11. Babylonian Talmud, Sanhedrin 59a, Tosefos, "There is nothing known..."
  12. Bereshit Rabba, chapter 34; Mishneh Torah, Laws of Murder and Guarding the Soul, chapter 2, law 2
  13. Ibid., Laws of Kings, chapter 10, law 2
  14. Gen. 9:5, commentary of Rashi
  15. Mishneh Torah, Laws of Kings, chapter 10, law 1; Laws of Murder and Guarding the Soul, chapter 5, laws 3 and 4
  16. Shulchan Arukh, Even HaEzer, chapter 23, law 5, the RaMoh (Rabbi Moses Isserles)
  17. Babylonian Talmud, Sanhedrin 59b, Tosefos, "Behold, be fruitful and multiply." .
  18. Mishneh Torah, Laws of Kings, chapter 10, law 7, Mishneh l'Melech. "We return to the words of the Rashbah..."
  19. Noahide Commandments by Rabbi Yoel Schwartz, Translated by Yitzhak A. Oked Sechter, Reviewed and corrected by Yechiel Sitzman in consultation with Rabbi Yoel Schwartz
  20. http://www.coroner.org.uk/public/history.asp
  21. Tex. Penal Code § 49.08.
  22. TEX. PEN. CODE ANN. § 49.10; see also Nelson v. State, 149 S.W.3d 206, 211 (Tex. App.-Fort Worth 2004, no pet.).
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This page uses content from the English Wiki Noah. The original article was at Prohibition of Homicide. The list of authors can be seen in the page history. As with the Religion-wiki, the text of Wiki Noah is available under the GNU Free Documentation License.

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