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.

Voluntary Manslaughter is the intentional killing of a human being in which the offender had no prior intent to kill and acted during "the heat of passion," under circumstances that would cause a reasonable person to become emotionally or mentally disturbed. In the Uniform Crime Reports prepared by the Federal Bureau of Investigation it is referred to as nonnegligent manslaughter.

Provocation

Provocation consists of the reasons for which one person kills another. "Adequate" or "reasonable" provocation is what makes the difference between voluntary manslaughter and murder. According to the book Criminal Law Today, “provocation is said to be adequate if it would cause a reasonable person to lose self-control” (Schmalleger, 2006, p. 302). For example, if a man were to come home and find his wife in bed with another man and kill both of them in a jealous rage, this would be considered adequate provocation and thus voluntary manslaughter.

State of mind

Voluntary Manslaughter is usually committed under one of the two states of mind, which are adequate cause and sudden passion. In the book Criminal Law Today, adequate cause is defined as “a cause that would commonly produce a degree of anger, rage, or terror in a person of ordinary temper, sufficient to render the mind of the defendant incapable of objective reflection” (Schmalleger, 2006, p. 303). In other words adequate cause means an occurrence where the defendant is placed in a situation that makes them so furious that they go on to kill the victim. The key element, however, is that they do not even consider their actions and hence the element of premeditation is removed.

Sudden passion is defined in the book as “passion directly caused by and rising out of provocation by the victim or of another acting with the victim.” Also, “the understanding that the passion arises at the time of the killing and is not solely the result of former provocation” (Schmalleger, 2006, p. 303). This is where the behaviour of the victim provoked the killer to react in the heat of the moment and an unadulterated logical thought process is utterly absent. Thus, the killer behaves in a manner he might not ordinarily be expected to behave in. Examples are if the murder of a family member, or catching someone cheating on a spouse.

Imperfect Self-Defense

In some jurisdictions malice can also be negated by imperfect self-defense. Self-defense is considered imperfect when the killer acted from his belief in the necessity for self-defense, but that belief was not reasonable under the circumstances. If the belief in self-defense were reasonable, then the killing would be considered justified and not unlawful. Where the belief is unreasonable the homicide is considered to be voluntary manslaughter.

Intent to Kill

Intent to kill is normally present during a voluntary manslaughter, but is not required. Since most heat of passion and imperfect self-defense killings involve intent to kill, typically voluntary manslaughters involve intentional killings. However, there are occasions when intent to kill is not present, although malice is. For example, a person responds to oral provocation by engaging in physical altercation. The provocation is sufficient so that his response is justified. He intends only to beat up those who have teased him, but someone unfortunately dies. The crime is voluntary manslaughter despite the absence of intent to kill.

United States sentencing

According to the United States Sentencing Commission, a person found guilty of voluntary manslaughter could be sentenced to a maximum amount of 10 years. (United States Sentencing Commission, 1997).

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.

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. 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 blatant 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.

References

ISBN links support NWE through referral fees

• Duff, R. A. "Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law?" Vol. 6. Buffalo Criminal Law Review, 147
• 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

External links

• http://www.lectlaw.com/def2/m012.htm
• http://www.lawteacher.net/CrimePages/Crime14.html
• http://print.criminal.findlaw.com/crimes/a-z/manslaughter_voluntary.html

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