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Murder is the unlawful killing, with malice aforethought, of another human being, 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 most countries, a person convicted of murder is typically given a long prison sentence, possibly a life sentence where permitted, and in some countries, the death penalty may be imposed for such an act — though this practice is becoming less common.[1] In most countries, there is no statute of limitations for murder (no time limit for prosecuting someone for murder). A person who commits murder is called a murderer .[2]
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William Blackstone (citing Edward Coke), in his Commentaries on the Laws of England set out the common law definition of murder, which by this definition occurs
when a person, of sound memory and discretion, unlawfully kills any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.[3]
The elements of common law murder are:
The Unlawful—This distinguishes murder from killings that are done within the boundaries of law, such as an execution or the killing of enemy soldiers during a war.
Killing—At common law life ended with cardiopulmonary arrest[4]—the total and permanent cessation of blood circulation and respiration.[4] With advances in medical technology courts have adopted irreversible cessation of all brain function as marking the end of life.[4]
of a human being—This element presents the issue of when life begins. At common law a foetus was not a human being. Life began when the foetus passed through the birth canal and took its first breath.[4]
by another human being—at early common law suicide was considered murder.[4] The requirement that the person killed be someone other than the perpetrator excluded suicide from the definition of murder.
with malice aforethought—originally malice aforethought carried its everyday 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:
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. In other words, "intent follows the bullet." Examples of deadly weapons and instruments include but are not limited to guns, knives, deadly toxins or chemicals or gases and even vehicles when intentionally used to harm a 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, and first degree is an aggravated form. The aggravating factors of first degree murder are a specific intent to kill, premeditation, and deliberation. In addition, murder committed by acts such as strangulation, poisoning, or lying in wait are also treated as first degree murder.[5]
In the past, certain types of homicide were lawful and justified. Georg Oesterdiekhoff wrote that:
Evans-Pritchard says about the Nuer from Sudan: "Homicide is not forbidden, and Nuer do not think it wrong to kill a man in fair fight. On the contrary, a man who slays another in combat is admired for his courage and skill." (Evans-Pritchard 1956: 195) This statement is true for most African tribes, for pre-modern Europeans, for Black Australians, and for Native Americans, according to ethnographic reports from all over the world. ... Homicides rise to incredible numbers among headhunter cultures such as the Papua. When a boy is born, the father has to kill a man. He needs a name for his child and can receive it only by a man, he himself has murdered. When a man wants to marry, he must kill a man. When a man dies, his family again has to kill a man.[6]
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." The payment of weregild was an important legal mechanism in early Germanic society. If someone was killed, the guilty person would have to pay weregild to the victim's family. The other common form of legal reparation at this time was blood revenge.
In Judeo-Christian traditions, 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 neighbour or smiteth his neighbour secretly rather than murder for the Latin clam percusserit proximum.[7][8]
Later editions such as Young's Literal Translation and the World English Bible have translated the Latin occides simply as murder[9][10] 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 that murder is prohibited.
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."[Quran 5:32] "And those who cry not unto any other god along with Allah, nor take the life which Allah hath forbidden save in (course of) justice, nor commit adultery - and whoso doeth this shall pay the penalty."[Quran 25:68]
The term 'Assassin' derives from Hashshashin,[11] 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 elite for political and religious reasons.[12] The Thuggee cult that plagued India was devoted to Kali, the goddess of death and destruction.[13][14] According to some estimates the Thuggees murdered 1 million people between 1740 and 1840.[15] The Aztecs believed that without regular offerings of blood the sun god Huitzilopochtli would withdraw his support for them and destroy the world as they knew it.[16] 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]
As with most legal terms, the precise definition of murder varies between jurisdictions and is usually codified in some form of legislation.
According to Blackstone, English common law identified murder as a public wrong.[19] 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.[20]
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.
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".[22] A killing simply to prevent the theft of one's property may not be a justifiable homicide, depending on the laws of a place.
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.[23] This holding has two implications. The first is a defendant in California can be convicted of murder for killing a fetus which the mother herself could have terminated without committing a crime.[23] The second, as stated by Justice Stanley Mosk in his dissent, because women carrying nonviable fetuses may not be visibly pregnant, it may be possible for a defendant to be convicted of intentionally murdering a person he did not know existed.[23]
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.
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. Usually, sociopathy and other personality disorders are not legally considered insanity, because of the belief they are the result of free will in many societies. 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.[24] This defense has two elements:
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.[25]
Some countries, such as Brazil, Canada, Mexico, 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).
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[26] constitutes reckless killing, while criminally negligent homicide is a grossly negligent killing.[27]
In those jurisdictions using the Uniform Penal Code, such as California, diminished capacity may be a defense. For example, Dan White used this defense[28] to obtain a manslaughter conviction, instead of murder, in the assassination of Mayor George Moscone and Supervisor Harvey Milk.
Murder with specified aggravating circumstances is often punished more harshly. Depending on the jurisdiction, such circumstances may include:
In the United States, these murders are referred to as first-degree or aggravated murders.
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.[32] 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 England and Wales, 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.[33][34] 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.[35]
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.[36]
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.[37] Because murder is the least likely crime to go unreported, statistics of murder are seen as a bellwether of overall crime rates.[38]
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 cases per 100,000 people per year; the rate of the United States is among the highest of developed countries, around 5.5 in 2004,[39] with rates in larger cities sometimes over 40 per 100,000.[40] In the United States, 666,160 people were killed between 1960 and 1996.[41] Canada, on the other hand, experienced much lower per capita rates of murder - less than 60,000 were murdered over the same time period.
Approximately 90% of murders are committed by males [42] Between 1976 and 2005, 23.5% of all murder victims and 64.8% of victims murdered by intimate partners were female. [43] For women in the US, homicide is the leading cause of death in the workplace.[44] There is a sharp peak in the age distribution of murderers between the ages of 18 and 30. People become less likely to commit a murder as they age.
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 were an estimated 43,016 murders in Brazil in 2010, down from 51,043 in 2003.[45][46] 32,719 murder cases were registered across India in 2007, about 30,000 murders committed annually in the early 2000s (down to 17000 in 2009) in Russia, approximately 16,000[47] murders in Colombia in 2009 (the murder rate was 36 per 100,000 people, in 2005 murders went down to 15,000[48]), approximately 20,000 murders each year in South Africa, approximately 17,000 murders in the United States, approximately 15,000 murders in Mexico, approximately 16,000 murders in Venezuela,[49] approximately 6,000 murders in El Salvador, approximately 1,600 murders in Jamaica,[50] approximately 1,000 murders in France, approximately 580 murders per year in Canada,[51] approximately 560 murders in Trinidad and Tobago [52] and approximately 200 murders in Chile.[53] The murder rate in Port Moresby, Papua New Guinea is 23 times that of London.[54] Pakistan reported 9,631 murders.[55]
In the US, murder is the leading cause of death for African American males aged 15 to 34. In 2006, Federal Bureau of Investigation's Supplementary Homicide Report indicated that most of the 14,990 murder victims were Black (7421).[57] 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.[58] It should be noted that the "white" category in the Uniform Crime Reports (UCR) includes non-black Hispanics.[59] In London in 2006, 75% of the victims of gun crime and 79% of the suspects were "from the African/Caribbean community."[60] Murder demographics are affected by the improvement of trauma care, which has resulted in reduced lethality of violent assaults—thus the murder rate may not necessarily indicate the overall level of social violence.[61]
Workplace homicide is the fastest growing category of murder in America.[62]
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,[63] 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.
Despite the immense improvements in forensics in the past few decades, the fraction of murders solved has decreased in the United States, from 90% in 1960 to 61% in 2007.[64] Solved murder rates in major U.S. cities varied in 2007 from 36% in Boston, Massachusetts to 76% in San Jose, California.[65] Major factors affecting the arrest rate include witness cooperation[64] and the number of people assigned to investigate the case.[65]
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 in 1900.[66]
In the United States, murder rates have been higher and have fluctuated. They fell below 2 per 100,000 by 1900, rose during the first half of the century, dropped in the years following World War II, bottomed out at 4.0 in 1957 before rising again.[67] The rate stayed in 9 to 10 range most of the period from 1972 to 1994, before falling to 5 in present times.[66] The increase since 1957 would have been even greater if not for the significant improvements in medical techniques and emergency response times, which mean that more and more attempted homicide victims survive. According to one estimate, if the lethality levels of criminal assaults of 1964 still applied in 1993, the country would have seen the murder rate of around 26 per 100,000, almost triple the actually observed rate of 9.5 per 100,000.[68]
A similar, but less pronounced pattern has been seen in major European countries as well. The murder rate in the United Kingdom fell to 1 per 100,000 by the beginning of the 20th century and as low as 0.62 per 100,000 in 1960, and was at 1.28 per 100,000 as of 2009[update]. The murder rate in France (excluding Corsica) bottomed out after World War II at less than 0.4 per 100,000, quadrupling to 1.6 per 100,000 since then.[69]
The specific factors driving this dynamics in murder rates are complex and not universally agreed upon. Much of the raise in the U.S. murder rate during the first half of the 20th century is generally thought to be attributed to gang violence associated with the Prohibition. Since most murders are committed by young males, the near simultaneous low in the murder rates of major developed countries circa 1960 can be attributed to low birth rates during the Great Depression and World War II. Causes of further moves are more controversial. Some of the more exotic factors claimed to affect murder rates include the availability of abortion[70] and the likelihood of chronic exposure to lead during childhood (due to the use of leaded paint in houses and tetraethyllead as a gasoline additive in internal combustion engines).
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,[71] and between 1821 and 1852, no less than 4,300 murders were perpetrated in Corsica.[72]
Certain countries employ the concept of first, second, and third degree murder. Canadian law distinguishes first and second degree murder. Both the United States and Peru have respective degrees of first, second, and third degree murder. See Degrees of murder in the United States and Murder (Peruvian Law).
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