Manslaughter is a
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
legal term for
homicide
Homicide occurs when a person kills another person. A homicide requires only a volitional act or omission that causes the death of another, and thus a homicide may result from accidental, reckless, or negligent acts even if there is no inten ...
considered by law as less
culpable
In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily ha ...
than
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker
Draco
Draco is the Latin word for serpent or dragon.
Draco or Drako may also refer to:
People
* Draco (lawgiver) (from Greek: Δράκων; 7th century BC), the first lawgiver of ancient Athens, Greece, from whom the term ''draconian'' is derived
* ...
in the 7th century BC.
The definition of manslaughter differs among legal
jurisdictions
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
.
Types
Voluntary
In voluntary manslaughter, the offender had intent to kill or seriously harm, but acted "in the moment" under circumstances that could cause a reasonable person to become emotionally or mentally disturbed. There are mitigating circumstances that reduce culpability, such as when the defendant kills only with an intent to cause serious bodily harm. Voluntary manslaughter in some jurisdictions is a
lesser included offense
In criminal law, a lesser included offense is a crime for which all of the elements necessary to impose liability are also elements found in a more serious crime. It is also used in non-criminal violations of law, such as certain classes of tr ...
of murder. The traditional mitigating factor was
provocation
Provocation, provoke or provoked may refer to:
* Provocation (legal), a type of legal defense in court which claims the "victim" provoked the accused's actions
* Agent provocateur, a (generally political) group that tries to goad a desired res ...
; however, others have been added in various jurisdictions.
The most common type of voluntary manslaughter occurs when a defendant is provoked to commit homicide. This is sometimes described as a
crime of passion
A crime of passion (French: ''crime passionnel''), in popular usage, refers to a violent crime, especially homicide, in which the perpetrator commits the act against someone because of sudden strong impulse such as anger rather than as a premed ...
. In most cases, the provocation must induce rage or anger in the defendant, although some cases have held that fright, terror, or desperation will suffice.
Assisted suicide
Assisted suicide is suicide committed with the aid of another person, sometimes a physician.
In some places, including parts of the United States,
assisted suicide is punishable as manslaughter.
In other countries such as Switzerland and Canada, and in some U.S. states,
as long as legal safeguards are observed, assisted suicide is legal.
Involuntary
Involuntary manslaughter is the killing of a human being without
intent
Intentions are mental states in which the agent commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ''a ...
of doing so, either expressed or implied. It is distinguished from voluntary manslaughter by the absence of intention. It is normally divided into two categories, constructive manslaughter and criminally negligent manslaughter, both of which involve criminal liability.
Constructive
Constructive manslaughter is also referred to as "unlawful act" manslaughter. It is based on the doctrine of constructive malice, whereby the malicious intent inherent in the commission of a crime is considered to apply to the consequences of that crime. It occurs when someone kills, without intent, in the course of committing an unlawful act. The malice involved in the crime is transferred to the killing, resulting in a charge of manslaughter.
For example, a person who fails to stop at a red traffic light while driving a vehicle and hits someone crossing the street could be found to intend or be reckless as to assault or criminal damage (see ''DPP v Newbury''). There is no intent to kill, and a resulting death would not be considered murder, but would be considered involuntary manslaughter. The accused's responsibility for causing death is constructed from the fault in committing what might have been a minor criminal act. Reckless driving or reckless handling of a potentially lethal weapon may result in a death that is deemed manslaughter. The ''DPP v Newbury'' case had redefined the meaning of murder in the Australian constitution, and reformed in order to include a ''
mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'' assessment.
Involuntary manslaughter may be distinguished from accidental death. A person who is driving carefully, but whose car nevertheless hits a child darting out into the street, has not committed manslaughter. A person who pushes off an aggressive drunk, who then falls and dies, has probably not committed manslaughter, although in some jurisdictions it may depend whether "excessive force" was used or other factors.
As manslaughter is not defined by legislation in Australia, common law decisions provide the basis for determining whether an act resulting in death amounts to manslaughter by unlawful and dangerous act.
[.] To be found guilty of manslaughter by an unlawful and dangerous act, the accused must be shown to have committed an unlawful act which is contrary to the criminal law, and that a reasonable person in the position of the accused would have known that by their act, they were exposing the victim to an "appreciable risk of serious injury".
Criminally negligent
Criminally negligent manslaughter is variously referred to as
criminally negligent
In criminal law, criminal negligence is a surrogate state of mind required to constitute a ''conventional'' (as opposed to strict liability, ''strictly liable'') offense. It is not, strictly speaking, a (Law Latin for "guilty mind") because i ...
homicide in the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, and
gross negligence
Gross negligence is the "lack of slight diligence or care" or "a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party." In some jurisdictions a person injured as a result of gross negl ...
manslaughter in
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
. In
Scotland
Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to the ...
and some
Commonwealth of Nations
The Commonwealth of Nations, simply referred to as the Commonwealth, is a political association of 56 member states, the vast majority of which are former territories of the British Empire. The chief institutions of the organisation are the Co ...
jurisdictions the offence of
culpable homicide
Culpable homicide is a categorisation of certain offences in various jurisdictions within the Commonwealth of Nations which involves the illegal killing of a person either with or without an intention to kill depending upon how a particular j ...
might apply.
It occurs where death results from serious
negligence
Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
, or, in some jurisdictions, serious
recklessness. A high degree of negligence is required to warrant criminal liability.
A related concept is that of
willful blindness
Willful blindness is a term used in law to describe a situation in which a person seeks to avoid civil or criminal liability for a wrongful act by intentionally keeping themselves unaware of facts that would render them liable or implicated. In ' ...
, which is where a defendant intentionally puts themselves in a position where they will be unaware of facts which would render them liable.
Criminally negligent manslaughter occurs where there is an omission to act when there is a duty to do so, or a failure to perform a duty owed, which leads to a death. The existence of the duty is essential because the law does not impose criminal liability for a failure to act unless a specific duty is owed to the victim. It is most common in the case of professionals who are grossly negligent in the course of their employment. An example is where a doctor fails to notice a patient's oxygen supply has disconnected and the patient dies (''R v Adomako'' and ''R v Perreau''). Another example could be leaving a child locked in a car on a hot day.
Vehicular and intoxicated
In some jurisdictions, such as some U.S. States, there exists the specific crime of vehicular or
intoxication
Intoxication — or poisoning, especially by an alcoholic or narcotic substance — may refer to:
* Substance intoxication:
** Alcohol intoxication
** LSD intoxication
** Toxidrome
** Tobacco intoxication
** Cannabis intoxication
** Cocaine i ...
manslaughter. An equivalent in Canada is
causing death by criminal negligence under the
Criminal Code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...
, punishable by a maximum penalty of
life imprisonment
Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes for ...
.
On the ''
mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'', or state of mind, or the circumstances under which the killing occurred (
mitigating factor
In criminal law, a mitigating factor, also known as an extenuating circumstance, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sente ...
s), manslaughter is usually broken down into two distinct categories: ''
voluntary manslaughter
Voluntary manslaughter is the killing of a human being in which the offender acted during ''the heat of passion'', under circumstances that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot ...
'' and ''
involuntary manslaughter
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th c ...
''. However, this is not the case in all jurisdictions, for example, in the U.S. state of Florida.
In some jurisdictions, such as the U.K., Canada, and some Australian states,
"adequate provocation" may be a partial defense to a charge of murder, which, if accepted by the jury, would convert what might otherwise have been a murder charge into manslaughter.
National standards
Australia
In Australia, specifically New South Wales, manslaughter is referred to, however not defined, in the ''Crimes Act 1900'' (NSW).
[ Murder and manslaughter defined.]
Manslaughter exists in two forms in New South Wales: Voluntary or Involuntary Manslaughter. In New South Wales, in cases of voluntary manslaughter, both the ''
actus reus
(), sometimes called the external element or the objective element of a crime, is the Law Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the ("guilty mind"), produces criminal liability in th ...
'' (literally
guilty act) and ''mens rea'' (literally
guilty mind) for murder are proven but the defendant has a partial defence, such as extreme provocation or diminished responsibility.
[ and .] In cases of involuntary manslaughter, the ''actus reus'' for murder is present but there is insufficient ''mens rea'' to establish such a charge.
There are two categories of involuntary manslaughter at common law: manslaughter by unlawful and dangerous act and manslaughter by criminal negligence. The authority for the ''actus reus'' and ''mens rea'' of involuntary manslaughter by an unlawful and dangerous act is the High Court of Australia case of ''Wilson v R''. This case determined that the act that caused the death must breach the criminal law and that the act must carry an appreciable risk of serious injury (''actus reus''). Regarding the ''mens rea'', the court held that the accused must intend to commit the unlawful act and that a reasonable person in the position of the accused would have realised or recognised that the act carried an appreciable risk of serious injury. Manslaughter by criminal negligence, on the other hand, finds its authority in the Victorian case of ''Nydam v R'',
[.] confirmed by the High Court of Australia in ''
R v Lavender''
[.] and ''Burns v R''.
[.] In ''Nydam v R'',
the Court described the office at
45in the following terms:
In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.
Canada
Canadian law distinguishes between justifiable, accidental and culpable homicide. If a death is deemed a culpable homicide, it generally falls under one of four categories (first-degree murder, second-degree murder, manslaughter, and infanticide).
Canadian law defines manslaughter as "a homicide committed without the intention to cause death, although there may have been an intention to cause harm". There are two broad categories of manslaughter: unlawful act, and criminal negligence.
Unlawful act is when a person commits a crime that unintentionally results in the death of another person.
Criminal negligence is when the homicide was the result of an act that showed wanton or reckless disregard for the lives of others.
England
In
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
, manslaughter is a less serious offence than
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
. In
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
, the usual practice is to prefer a charge of murder, with the
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
or defence able to introduce manslaughter as an option (see
lesser included offence). The
jury
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty o ...
then decides whether the
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
is guilty or not guilty of either murder or manslaughter. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required for murder.
The
Homicide Act 1957
The Homicide Act 1957 (5 & 6 Eliz.2 c.11) is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice (except in limi ...
and
Coroners and Justice Act 2009 are relevant acts.
Voluntary manslaughter occurs when the defendant avails themself of the three statutory defenses described in the Homicide Act 1957 (provocation, diminished responsibility, and a suicide pact).
Involuntary manslaughter occurs when the agent has no intention () of committing murder, but caused the death of another through
recklessness or
criminal negligence
In criminal law, criminal negligence is a surrogate state of mind required to constitute a ''conventional'' (as opposed to ''strictly liable'') offense. It is not, strictly speaking, a (Law Latin for "guilty mind") because it refers to an ob ...
. The crime of involuntary manslaughter can be subdivided into two main categories: constructive manslaughter and gross negligence manslaughter.
United States
Manslaughter is a crime in the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
. Definitions can vary among jurisdictions, but the U.S. follows the general principle that manslaughter involves causing the death of another person in a manner less
culpable
In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily ha ...
than
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
, and observes the distinction between voluntary and involuntary manslaughter.
Civil law
Some
civil law jurisdictions, such as the
French Code, use "murder" or "involuntary homicide" to cover the crime of manslaughter, and reserve "assassination" for the crime of
premeditated murder.
Historical distinction from murder
A legal distinction between intentional and unintentional homicide was introduced in Athenian law in 409 BC, when the legal code of
Draco
Draco is the Latin word for serpent or dragon.
Draco or Drako may also refer to:
People
* Draco (lawgiver) (from Greek: Δράκων; 7th century BC), the first lawgiver of ancient Athens, Greece, from whom the term ''draconian'' is derived
* ...
indicated that intentional homicide (''hekousios phonos'' or ''phonos ek pronoias'') was punishable by death. The language is ambiguous as to unintentional homicide (''akousios phonos''), but it may have been punishable by exile.
However, academic David D Phillips says that these categories "do not correspond to the common-law categories of murder and manslaughter either in their original significance or in their present definitions", because under Athenian law intentional homicide would include both murder and voluntary manslaughter.
Anglo-Saxon law recognised particular degrees of homicide, with the worst being ''forsteall'' (killing by ambush).
''Murdra'' was a separate type of aggravated (secret) homicide under Anglo-Saxon law;
William the Conqueror
William I; ang, WillelmI (Bates ''William the Conqueror'' p. 33– 9 September 1087), usually known as William the Conqueror and sometimes William the Bastard, was the first House of Normandy, Norman List of English monarchs#House of Norman ...
defined it narrowly as a fine that would be charged on a
hundred
100 or one hundred (Roman numeral: C) is the natural number following 99 and preceding 101.
In medieval contexts, it may be described as the short hundred or five score in order to differentiate the English and Germanic use of "hundred" to de ...
following the slaying of a foreigner (originally a Norman, but intermarriage would end the distinction between Normans and English by the 13th century).
By 1348, the association between ''murdrum'' and
malice aforethought
Malice aforethought is the "premeditation" or "predetermination" (with malice) required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravated murder in a few. Insofar as the term is still in use, ...
emerged.
"Manslaughter" as a general term for homicide was in use in medieval England by the late 1200s, during which time a distinction was forming between homicide committed in necessary self-defence (pardoned without culpability) and homicide committed by accident (pardoned but with moral blame).
From 1390, homicide in necessary self-defence or by misadventure became "pardons of course", meaning that the Chancery would issue them by default.
Homicide in necessary self-defence would later be acquitted, rather than pardoned.
The use of "manslaughter" to cover homicides other than murder emerged by 1547, in a statute.
Edward Coke
Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”.
History
The name Edward was very popular in Anglo-Sa ...
confirms this distinction in ''The Third Part of the Institutes of the Laws of England,'' which remains "the authoritative starting point for any examination of the law of homicide" in the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
and other
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
countries''.''
See also
*
Culpable homicide
Culpable homicide is a categorisation of certain offences in various jurisdictions within the Commonwealth of Nations which involves the illegal killing of a person either with or without an intention to kill depending upon how a particular j ...
*
Criminal transmission of HIV
Criminal transmission of HIV is the intentional or reckless infection of a person with the human immunodeficiency virus (HIV). This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transm ...
*
Depraved-heart murder
In United States law, depraved-heart murder, also known as depraved-indifference murder, is a type of murder where an individual acts with a "depraved indifference" to human life and where such act results in a death, despite that individual not ...
*
Imperfect self-defense
Imperfect self-defense is a common law doctrine recognized by some jurisdictions whereby a defendant may mitigate punishment or sentencing imposed for a crime involving the use of deadly force by claiming, as a partial affirmative defense, t ...
*
Twinkie defense
"Twinkie defense" is a derisive label for an improbable legal defense. It is not a recognized legal defense in jurisprudence, but a catch-all term coined by reporters during their coverage of the trial of defendant Dan White for the murders of ...
References
External links
{{Types of crime
Homicide
Criminal law