Murder
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"Murderer" redirects here. For other uses, see Murderer (disambiguation).
For other uses, see Murder (disambiguation).
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Contents[show] |
[edit] 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 asThe elements of common law murder are:when a person, of sound memory and discretion, unlawfully killeth any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.—[3]
- the killing
- of a human being
- by another human being
- with malice aforethought.[4]
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 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:
- Intent to kill,
- Intent to inflict grievous bodily harm short of death,
- Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
- Intent to commit a dangerous felony (the "felony-murder" doctrine).
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.[5]
[edit] Origins
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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 neighbour or smiteth his neighbour secretly rather than murder for the Latin clam percusserit proximum.[6][7]
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.[citation needed] Christian churches have some doctrinal differences about what forms of homicide are prohibited biblically, though all agree murder is.[citation needed]
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,[8] 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.[9] The Thuggee cult that plagued India was devoted to Kali, the goddess of death and destruction.[10][11] 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.[12][13][14]
[edit] Legal definition
As with most legal terms, the precise definition of murder varies between jurisdictions and is usually codified in some form of legislation.[edit] At common law
According to Blackstone, English common law identified murder as a public wrong.[15] 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.[16]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.
[edit] 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).[17]
- In some cases, killing a person who is attempting to kill another can be classified as self-defense and thus, not murder.
[edit] 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".[18][edit] 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.[19] This holding has two counterintuitive implications. The first is that a defendant in California can be convicted of murder for terminating a fetus which the mother herself could have terminated without committing any crime.[19] The even stranger part of this holding, as pointed out by Justice Stanley Mosk in his dissent: because women carrying nonviable fetuses may not be visibly pregnant, a defendant can be convicted of intentionally murdering a person he did not even know existed.[19]
[edit] 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.[edit] 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.[20] This defense has two elements:- That the defendant had a serious mental illness, disease, or defect.
- 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 the French Penal Code:§ 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.
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.[21]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.
[edit] 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).[citation needed]In 2009, Texas state representative Jessica Farrar proposed similar rules for her home state.[22]
[edit] 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[23] constitutes reckless killing, while criminally negligent homicide is a grossly negligent killing.[24][edit] 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[25] to obtain a manslaughter conviction, instead of murder, in the assassination of Mayor George Moscone and Supervisor Harvey Milk.[edit] 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[26]
- Where the victim was a pregnant woman[27]
- Committed for pay or other reward[28]
- Exceptional brutality or cruelty
[edit] Year-and-a-day rule
Main article: 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.[29]
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.[30]
[edit] Epidemiology
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,[32] with rates in larger cities sometimes over 40 per 100,000.[33] 666,160 people have been killed in the United States between 1960 and 1996.[34]
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).[citation needed] There is a sharp peak in the age distribution of murderers between the ages of 17 and 30.[citation needed] People become less likely to commit a murder as they age. Incidents of children and adolescents committing murders are also extremely rare.[citation needed]
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,[35] about 30,000 murders committed annually in the early 2000s (down to 17000 in 2009) in Russia, approximately 16,000[36] murders in Colombia in 2009 (the murder rate was 36 per 100,000 people, in 2005 murders went down to 15,000[37]), 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,[38] approximately 6,000 murders in El Salvador, approximately 1,600 murders in Jamaica,[39] approximately 1,000 murders in France, approximately 580 murders per year in Canada,[40] and approximately 200 murders in Chile.[41] The murder rate in Port Moresby, Papua New Guinea is 23 times that of London.[42] 32,719 murder cases were registered across India in 2007. Pakistan reported 9,631 murders.[43]
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.[49]
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,[50] 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.
[edit] 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 in 1900. [53]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.[54] The rate stayed in 9 to 10 range most of the period from 1972 to 1994, before falling to 5 in present times.[53] 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've seen the murder rate of around 26 per 100,000, almost triple the actually observed rate of 9.5 per 100,000. [55].
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. The murder rate in France (excluding Corsica) bottomed out after the World War II at less than 0.4 per 100,000, quadrupling to 1.6 per 100,000 since then.[56]
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 the 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[57] and the likelihood of chronic exposure to lead during childhood (due to the use of leaded paint in houses and tetraethyl lead 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,[58] and between 1821 and 1852, no less than 4,300 murders were perpetrated in Corsica.[59]
[edit] Country-specific murder law
[edit] Medieval Iceland (8th to 11th centuries)
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The only other type of killing with consequences in Icelandic culture was "unjust killing", i.e. killing someone while he was sleeping or had his 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.
