Murder

Criminal law
Part of the common law series
Element (criminal law)
Actus reus · Mens rea Causation · Concurrence
Scope of criminal liability
Complicity · Corporate · Vicarious
Inchoate offenses
Attempt · Conspiracy · Solicitation
Offence against the person
Assault · Battery False imprisonment · Kidnapping Mayhem · Sexual assault Homicide crimes Murder · Felony murder Manslaughter Negligent homicide Vehicular homicide
Crimes against property
Arson · Blackmail · Burglary Embezzlement · Extortion False pretenses · Larceny Receiving stolen property Robbery · Theft
Crimes against justice
Compounding · Misprision Obstruction · Perjury Malfeasance in office Perverting the course of justice
Defenses to liability
Defense of self Defence of property Consent · Diminished responsibility Duress · Entrapment Ignorantia juris non excusat Infancy · Insanity Intoxication defense Justification · Mistake (of law) Necessity · Loss of Control (Provocation)
Other common law areas
Contracts · Evidence · Property Torts · Wills, trusts and estates
Portals
Criminal justice · Law

Murder, as defined in common law countries, is the unlawful killing of another human being with "malice aforethought", and generally this state of mind distinguishes murder from other forms of unlawful homicide (such as manslaughter). As the loss of a human being inflicts enormous grief upon the individuals close to the victim, as well as the fact that the commission of a murder is highly detrimental to the good order within society, most societies both present and in antiquity have considered it a most serious crime worthy of the harshest of punishment. In the US, a person convicted of murder is typically given a life sentence or even the death penalty for such an act. A person who commits murder is called a murderer ;^[1] the term murderess, meaning a woman who murders, has largely fallen into disuse.^[2]

Legal analysis of murder

William Blackstone (citing Edward Coke), in his Commentaries on the Laws of England set out the common law definition of murder as

The elements of common law murder are:

1. the killing

2. of a human being

3. by another human being

4. with malice aforethought.^[4]

The killing - At common law life ended with cardiopulmonary arrest^[5] - the total and permanent cessation of blood circulation and repiration.^[6] With advances in medical technology courts have adopted irreversible cessation of all brain function as marking the end of life.^[7]

of a human being - This element presents the issue of when life begins. At common law a fetus was not a human being. Life began when the fetus passed through the birth canal and took her first breath.^[8]

by another human being - at early common law suicide was considered murder.^[9] The requirement that the person killed be someone other than the perpetrartor excluded suicide from the definition of murder.

with malice aforethought - originally "malice aforethought" carried its every day meaning - a deliberate and premeditated killing of another motivated by ill will. Murder necessarily required that an appreciable time pass between the formation and execution of the intent to kill. The courts broadened the scope of murder by eliminating the requirement of actual premeditation and deliberation as well as true malice. All that was required for malice aforethought to exist is that the perpetrator act with one of the four states of mind that constitutes "malice."

The four states of mind recognized as constituting "malice" are:

1. Intent to kill,
2. Intent to inflict grievous bodily harm short of death,
3. Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
4. Intent to commit a dangerous felony (the "felony-murder" doctrine).

Under state of mind (i), intent to kill, the deadly weapon rule applies. Thus, if the defendant intentionally uses a deadly weapon or instrument against the victim, such use authorizes a permissive inference of intent to kill. An example of a deadly weapon or instrument is a gun, a knife, or even a car when intentionally used to strike the victim.

Under state of mind (iii), an "abandoned and malignant heart", the killing must result from defendant's conduct involving a reckless indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury. An example of this is a 2007 law in California where an individual could be convicted of third-degree murder if he or she kills another person while operating a motor vehicle while being under the influence of alcohol, drugs, or controlled substances.

Under state of mind (iv), the felony-murder doctrine, the felony committed must be an inherently dangerous felony, such as burglary, arson, rape, robbery or kidnapping. Importantly, the underlying felony cannot be a lesser included offense such as assault, otherwise all criminal homicides would be murder as all are felonies.

Many jurisdictions divide murder by degrees. The most common divisions are between first and second degree murder. Generally second degree murder is common law murder with first degree being an aggravated form. The aggravating factors that distinguish first degree murder from second degree are first degree murder requires a specific intent to kill and premeditation and deliberation. In addition murder committed by acts such as strangulation, poisoning, or lying in wait are treated as first degree murder.^[10]

Origins

Murder in religion

One of the oldest known prohibitions against murder appears in the Sumerian Code of Ur-Nammu written sometime between 2100 and 2050 BC. The code states, "If a man commits a murder, that man must be killed."

In Abrahamic religions, the prohibition against murder is one of the Ten Commandments given by God to Moses in (Exodus: 20v13) and (Deuteronomy 5v17) (See Murder in the Bible). The Vulgate and subsequent early English translations of the Bible used the term secretly killeth his neighbor or smiteth his neighbour secretly rather than murder for the Latin clam percusserit proximum.^[11][12]

Later editions such as Young's Literal Translation and the World English Bible have translated the Latin occides simply as murder rather than the alternatives of kill, assassinate, fall upon or slay. Christian churches have some doctrinal differences about what forms of homicide are prohibited biblically, though all agree murder is.

In Islam according to the Qur’an, one of the greatest sins is to kill a human being who has committed no fault. "For that cause We decreed for the Children of Israel that whosoever killeth a human being for other than manslaughter or corruption in the earth, it shall be as if he had killed all mankind, and whoso saveth the life of one, it shall be as if he had saved the life of all mankind."^{[Qur'an 5:32]} "Those who invoke not, with Allah, any other god, nor slay such life as Allah has made sacred except for just cause, nor commit fornication; - and any that does this (not only) meets punishment. "^{[Qur'an 25:68]}

The term 'Assassin' derives from Hashshashin,^[13] a militant Ismaili Shi-ite sect, active from the eighth to the fourteenth centuries. This mystic secret society killed members of the Abbasid, Fatimid, Seljuq and Crusader élite for political and religious reasons.^[14] The Thuggee cult that plagued India was devoted to Kali, the goddess of death and destruction.^[15][16] According to the Guinness Book of Records the Thuggee cult was responsible for approximately 2 million deaths. According to Ross Hassig, author of Aztec Warfare, "between 10,000 and 80,400 persons" were sacrificed in the 1487 re-consecration of the Great Pyramid of Tenochtitlan.^[17][18][19]

Legal definition

As with most legal terms, the precise definition of murder varies between jurisdictions and is usually codified in some form of legislation.

At common law

According to Blackstone, English common law identified murder as a public wrong.^[20] At common law, murder is considered to be malum in se, that is an act which is evil within itself. An act such as murder is wrong/evil by its very nature. And it is the very nature of the act which does not require any specific detailing or definition in the law to consider murder a crime.^[21]

Some jurisdictions still take a common law view of murder. In such jurisdictions, precedent case law or previous decisions of the courts of law defines what is considered murder. However, it tends to be rare and the majority of jurisdictions have some statutory prohibition against murder.

Exclusions

• Unlawful killings without malice or intent are considered manslaughter.
• Justified or accidental killings are considered homicides. Depending on the circumstances, these may or may not be considered criminal offenses.
• Suicide is not considered murder in most societies. Assisting a suicide, however, may be considered murder in some circumstances.
• Capital punishment ordered by a legitimate court of law as the result of a conviction in a criminal trial with due process for a serious crime.
• Killing of enemy combatants by lawful combatants in accordance with lawful orders in war, although illicit killings within a war may constitute murder or homicidal war crimes. (see the Laws of war article)
• The administration of lethal drugs by a doctor to a terminally ill patient, if the intention is solely to alleviate pain, is seen in many jurisdictions as a special case (see the doctrine of double effect and the case of Dr John Bodkin Adams).^[22]
• In some cases, killing a person who is attempting to kill another can be classified as self-defense and thus, not murder.

Self-defense

Acting in self-defense or in defense of another person is generally accepted as legal justification for killing a person in situations that would otherwise have been murder. However, a self-defense killing might be considered manslaughter if the killer established control of the situation before the killing took place. In the case of self-defense it is called a justifiable homicide.^[23]

Victim

All jurisdictions require that the victim be a natural person; that is a human being who was still alive at the time of being murdered. In other words, under the law, one cannot murder a cadaver, a corporation, a non-human animal, or any other non-human organism.

California's murder statute, Penal Code Section 187, was interpreted by the Supreme Court of California in 1994 as not requiring any proof of the viability of the fetus as a prerequisite to a murder conviction.^[24] This holding has two peculiar implications. The first is that a defendant in California can be convicted for murdering a fetus which the mother herself could legally abort under the framework established in Roe v. Wade (1973).^[24] However, only the woman's right to abort and thereby kill the fetus before the third trimester is constitutionally protected by Roe v. Wade (1973) and therefore although this nullifies the effect of any federal or state legislation criminalizing abortion of a fetus before that point, it does not apply to other persons who kill the fetus. The even stranger part of this holding, as pointed out by Justice Stanley Mosk in dissent, is that a nonviable fetus may be so small, and thus not externally visible, that a defendant can be convicted of intentionally murdering a person he did not even know existed.^[24]

Mitigating circumstances

Some 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.

Insanity

Mental disorder may apply to a wide range of disorders including psychosis caused by schizophrenia and dementia, 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 defense of "not guilty by reason of insanity" may be used to get a not guilty verdict.^[25] This defense has two elements:

1. That the defendant had a serious mental illness, disease, or defect.
2. That the defendant's mental condition, at the time of the killing, rendered the perpetrator unable to determine right from wrong, or that what he or she was doing was wrong.

Under New York law, for example:

§ 40.15 Mental disease or defect. In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong.

Under the French Penal Code:

Article 122-1

• A person is not criminally liable who, when the act was committed, was suffering from a psychological or neuropsychological disorder which destroyed his discernment or his ability to control his actions.
• A person who, at the time he acted, was suffering from a psychological or neuropsychological disorder which reduced his discernment or impeded his ability to control his actions, remains punishable; however, the court shall take this into account when it decides the penalty and determines its regime.

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.^[26]

Post-partum depression

Some countries, such as Canada, Italy, Norway, Sweden, the United Kingdom, New Zealand and Australia, allow postpartum depression (also known as post-natal depression) as a defense against murder of a child by a mother, provided that a child is less than two years 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).

In 2009, Texas state representative Jessica Farrar proposed similar rules for her home state.^[27]

Unintentional

For a killing to be considered murder, there normally needs to be an element of intent. For this argument to be successful the killer generally needs to demonstrate that they took precautions not to kill and that the death could not have been anticipated or was unavoidable, whatever action they took. As a general rule, manslaughter^[28] constitutes reckless killing, while criminally negligent homicide is a grossly negligent killing.^[29]

Diminished capacity

In those jurisdictions using the Uniform Penal Code, such as California, diminished capacity may be a defense. For example, Dan White used this defense^[30] to obtain a manslaughter conviction, instead of murder, in the assassination of Mayor George Moscone and Supervisor Harvey Milk.

Aggravating circumstances

Murder with specified aggravating circumstances is often punished more harshly. Depending on the jurisdiction, such circumstances may include:

• Premeditation
• Poisoning
• Murder of a police officer, judge, fireman or witness to a crime^[31]
• Where the victim was a pregnant woman^[32]
• Committed for pay or other reward^[33]
• Exceptional brutality or cruelty

In the United States these aggravated murders are referred to as First Degree murders.

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 could still be charged with an offence 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 death occurs three years or more after the original attack then prosecution can take place only with the Attorney-General's approval.

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, 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.^[34]

In Philadelphia, Pennsylvania, a 74-year-old man, William Barnes, was acquitted of murder charges on May 24, 2010. He was on trial for murder for the death of Philadelphia police officer Walter Barkley. Barnes shot Barkley on November 27, 1966, and served 16 years in prison for attempted murder. Barkley died on August 19, 2007, allegedly from complications of the wounds suffered nearly 41 years earlier.^[35]

Epidemiology

Murders (per 100,000 people per annum) (1998 - 2000) by country

An estimated 520,000 people were murdered in 2000 around the globe. Two-fifths of them were young people between the ages of 10 and 29 who were killed by other young people.^[36]

Murder rates vary greatly among countries and societies around the world. In the Western world, murder rates in most countries have declined significantly during the 20th century and are now between 1-4 cases per 100,000 people per year. Murder rates in Japan, Ireland and Iceland are among the lowest in the world, around 0.5; the rate of the United States is among the highest of developed countries, around 5.5 in 2004,^[37] with rates in larger cities sometimes over 40 per 100,000.^[38]

Within the Western world, nearly 90% of all murders are committed by males, with males also being the victims of 74.6% of murders (according the United States Department of Justice). There is a sharp peak in the age distribution of murderers between the ages of 17 and 30. People become less likely to commit a murder as they age. Incidents of children and adolescents committing murders are also extremely rare.

The following absolute murder counts per-country are not comparable because they are not adjusted by each country's total population. Nonetheless, they are included here for reference. There are an estimated 55,000 murders in Brazil every year,^[39] about 30,000 murders committed annually in the early 2000s (down to 17000 in 2009) in Russia, approximately 16,000 ^[40] murders in Colombia in 2009 (the murder rate was 36 per 100,000 people, in 2005 murders went down to 15,000^[41]), approximately 20,000 murders each year in South Africa, approximately 17,000 murders in the United States (666,160 murders from 1960 to 1996),^[42] approximately 15,000 murders in Mexico, approximately 11,000 murders in Venezuela, approximately 6,000 murders in El Salvador, approximately 1,600 murders in Jamaica,^[43] approximately 1,000 murders in France, approximately 580 murders per year in Canada,^[44] and approximately 200 murders in Chile.^[45] The murder rate in Port Moresby, Papua New Guinea is 23 times that of London.^[46] 32,719 murder cases were registered across India in 2007. Pakistan reported 9,631 murders.^[47]

Murder is the leading cause of death for African American males aged 15 – 34. In 2006, FBI's Supplementary Homicide Report indicated that most of the 14,990 murder victims were Black (7421).^[48] In the year 2007 non-negligent homicides, there were 3,221 black victims and 3,587 white victims. While 2,905 of the black victims were killed by a black offender, 2,918 of the white victims were killed by white offenders. There were 566 white victims of black offenders and 245 black victims of white offenders.^[49] It should be noted that the "white" category in the Uniform Crime Reports (UCR) includes non-black Hispanics.^[50] In London in 2006, 75% of the victims of gun crime and 79% of the suspects were "from the African/Caribbean community."^[51] More than 500,000 people have been killed by firearms in Brazil between 1979 and 2003.^[52]

Murder demographics are affected by the improvement of trauma care, leading to reduced lethality of violent assaults - thus the murder rate may not necessarily indicate the overall level of social violence.^[53]

Development of murder rates over time in different countries is often used by both supporters and opponents of capital punishment and gun control. Using properly filtered data, it is possible to make the case for or against either of these issues. For example, one could look at murder rates in the United States from 1950 to 2000,^[54] and notice that those rates went up sharply shortly after a moratorium on death sentences was effectively imposed in the late 1960s. This fact has been used to argue that capital punishment serves as a deterrent and, as such, it is morally justified. Capital punishment opponents frequently counter that the United States has much higher murder rates than Canada and most European Union countries, although all those countries have abolished the death penalty. Overall, the global pattern is too complex, and on average, the influence of both these factors may not be significant and could be more social, economic, and cultural.

The fraction of murders solved has decreased in the United States, from 90% in 1960 to 61% in 2007.^[55] Solved murder rates in major U.S. cities varied in 2007 from 36% in Boston, Massachusetts to 76% in San Jose, California.^[56] Major factors affecting the arrest rate include witness cooperation^[55] and the number of people assigned to investigate the case.^[56]

History

According to scholar Pieter Spierenburg murder rates per 100,000 in Europe have fallen over the centuries, from 35 per 100,000 in medieval times, to 20 in 1500 AD, 5 in 1700, to below two per 100,000 "where it has held steady, with minor fluctuations, for the past century."^[57] In the United States, murders rates have been higher and have fluctuated. They rose during the nineteenth century, dropped in the years following World War II, before rising again. The rate reached eleven per 100,000 in 1991 before falling to five per 100,000 in present times.^[57]

In Corsica, vendetta was a social code that required Corsicans to kill anyone who wronged the family honor. It has been estimated that between 1683 and 1715, nearly 30,000 out of 120,000 Corsicans lost their lives to vendetta,^[58] and between 1821 and 1852, no less than 4,300 murders were perpetrated in Corsica.^[59]

Country-specific murder law

Medieval Iceland (8th to 11th centuries)

The culture of medieval Iceland had a very different concept of murder. If a person killed someone, then it was up to the murderer to pay the family fair compensation (weregild) for the labor lost by the member's death. If the perpetrator refused to pay weregild, it was up to the family of the slain to extract it from the perpetrator, or take his life.^[60] In Nordic countries, the payment of weregild was used in homicide cases until the 16th century.

The only other type of killing with consequences in Icelandic culture was "unjust killing", i.e. killing someone while they were sleeping or had their back to the killer. While the financial implications of unjust killing were no more severe, the killer in question suffered from a tremendous loss of trust and could be declared an outlaw.

See also

References

Bibliography

• Lord Mustill on the Common Law concerning murder
• Sir Edward Coke Co. Inst., Pt. III, ch.7, p. 50

External links

• Murder in the UK - detailed site
• 1986 Seville Statement on Violence (from UNESCO)
• "This Could Never Happen to Me - A Handbook for Families of Murder Victims and People Who Assist Them" - Hosted by the Texas Department of Criminal Justice
  • Introduction
  • Section 1
  • Section 2
• Introduction and Updated Information on the Seville Statement on Violence
• U.S. Centers for Disease Control "Atlas of United States Mortality"
• Cezanne's depiction of "The Murder"

Death and related topics In medicine Autopsy · Brain death · Clinical death · End-of-life care · Euthanasia · Lazarus syndrome · Terminal illness Lists Causes of death by rate · Expressions related to death · People by cause of death · Premature obituaries · Preventable causes of death · Notable deaths in 2007 · Notable deaths in 2008 · Notable deaths in 2009 · Notable deaths in 2010 · Unusual deaths Mortality Child mortality · Immortality · Infant mortality · Legal death · Maternal death · Mortality displacement · Mortality rate · Perinatal mortality After death Body: Burial · Cremation · Cryonics · Decomposition · Disposal · Mummification  · Promession · Resomation Afterlife · Customs · Death certificate · Funeral · Grief · Intermediate state · Mourning Paranormal Near death experience · Near-death studies · Out-of-body experience · Reincarnation research · Séance Legal Administration of an estate on death · Death in absentia · Trust law · Will Other Capital punishment · Death and culture · Death (personification) · Fascination with death · Genocide · Martyr · Murder · Sacrifice (Human · Animal) · Suicide · Assisted suicide · War Death Portal

Types of crime Note: Crimes vary by jurisdiction. Not all types are listed here. Classes Infraction · Misdemeanor · Felony · Summary · Indictable · Hybrid Against the person Assault · Battery · Extortion · Harassment · Kidnapping · Identity theft · Manslaughter (corporate) · Murder · Rape · Robbery · Sexual assault Against property Arson · Blackmail · Burglary · Deception · Embezzlement · False pretenses · Fraud · Handling · Larceny · Theft · Vandalism Against public order Drug possession Against the state Tax evasion · Espionage · Treason Against justice Bribery · Misprision of felony · Obstruction · Perjury · Malfeasance in office Inchoate offenses Accessory · Attempt · Conspiracy · Incitement · Solicitation · Common purpose WikiSource · Wikimedia Commons · Wikiquote · Wikinews