Murder
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Murder is the unlawful and intentional killing of a human being by another. The maximum penalty for murder is usually life imprisonment, and in jurisdictions with capital punishment, the death penalty may be imposed. As with most legal terms, the precise definition varies between jurisdictions. For example, in some parts of the United States anyone who commits a serious crime during which any person dies may be prosecuted for murder (see felony murder). Many jurisdictions recognize a distinction between murder which is premeditated, and manslaughter.
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[edit] Historic rates
During the Medieval period in Europe, the murder rate was significantly higher than modern rates in the United States and Europe.[1] Murder rates for the Medieval period were approximately 20 per 100,000.[1]
[edit] Demographics
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 and Iceland are among the lowest in the world, around 0.5; the rate of the United States is among the highest among all developed countries, around 5.5 (2004, [1]), with rates in major cities sometimes over 50 per 100,000[2].
Many researchers have observed significant correlation between murder rates and wealth distribution inequality, as measured by Gini coefficient.[citation needed]
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 US Department of Justice). There is a sharp peak in the age distribution of murderers between the ages of 17 and 30. People become increasingly unlikely to commit a murder as they age. Incidents of children and adolescents committing murders are also extremely rare, notwithstanding the strong media coverage such cases receive.
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 societal violence.[2]
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 [3] 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 European Union countries, although all those countries have abolished the death penalty. A difficulty with this argument is that there may be many factors other than capital punishment causing the differences in murder rates between different countries. Gun control advocates further point out that, unlike the United States, many European countries disallow gun ownership by private citizens. Overall, the global pattern is too complex and, on average, the influence of both these factors may not be significant.
[edit] Definition
[edit] Mitigating circumstances
Most 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.
The defenses of insanity or mental disorder may apply to a wide range of disorders including psychosis caused by schizophrenia, 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 verdict "not guilty by reason of insanity" may be used. Some countries, such as Canada, Italy, the United Kingdom and Australia, allow post-partum depression (post-natal depression) as a defense against murder of a child by a mother, provided that a child is less than a year 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). 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.
[edit] 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 can still be charged with an offense 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 the death occurs three years after the original attack, then the Attorney-General's approval/permission will need to be granted before prosecutions can take place.
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's Rogers v. Tennessee, , 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.
[edit] Country-specific murder law
[edit] Canada
In 2004 the homicide rate in Canada was 2.0 per 100,000 people or approximately 650 homicides per year.[citation needed] The rate has remained close to stable for the past 10 years. This is equivalent to numbers in most of the western world, except the U.S. which has triple the number per capita.[citation needed] The main methods of murder in Canada are shootings (30%), stabbings (30%), and beatings (22%).[citation needed] There are four types of crime, as defined in the Canadian Criminal Code, that can be considered murder:
- First degree murder - the intentional killing of another person (1) with premeditation, (2) in the furtherance of another serious criminal offense (kidnapping, robbery, etc.), or (3) where the victim is an identified peace officer
- Second degree murder - the intentional killing of another person without premeditation (i.e. killing in the heat of the moment). Formerly, certain types of killings were also deemed to be murder, regardless of lack of intent (eg. where death was caused in the course of committing of a serious crime, such as sexual assault). However, these so-called "constructive" murder provisions have, by and large, been repealed or struck down on constitutional grounds.
- Manslaughter - the killing of another person where there is no intent to kill
- Infanticide - the killing of an newly-born child by its mother where the mother's mind was disturbed as a result of giving birth.
The maximum penalties for murder are:
- first degree murder - mandatory life imprisonment without the possibility of parole for 25 years (can be paroled under the Faint-Hope Clause after 15 years imprisonment, but such a reduction is rarely given and is not available for multiple murders)
- second degree murder - mandatory life imprisonment without the possibility of parole for 10-25 years (parole eligibility determined by the judge at sentencing) (exception: if the person had committed another murder in their past, parole eligibility is 25 years)
- manslaughter - maximum life imprisonment; if firearm was used to commit the offence, the minimum penalty is 4 years' imprisonment
- infanticide - maximum 5 years imprisonment
There is a clause where persons convicted of any "personal injury offence" meeting the statutory criteria to be declared a "dangerous offender." A dangerous offender is sentenced for an indeterminate period of imprisonment and is eligible for parole after serving at least 7 years. An offender convicted of 1st or 2nd degree murder is ineligble to be declared a dangerous offender. However, an offender convicted of manslaughter can be declared a dangerous offender.
Any sentence imposed in addition to a life sentence must be concurrent.
For every murder in Canada there are about 1.5 attempted murders.[citation needed] Attempted murder carries the same consequences as murder itself; it is the intent, not the result, that determines the sentence.
About one in three Canadian murders are committed by a family member.[citation needed] One in eight is gang related.[citation needed] About 80% of murderers in Canada are caught within a year.[citation needed]
[edit] Finland
In Finland, murder is defined as manslaughter with at least one of four aggravating factors:
- Deliberate intent
- Exceptional brutality or cruelty
- Significantly endangering public safety
- Committed against a public official engaged in enforcing the law.
Further, the offence considered as a whole must be aggravated.
The only possible punishment for murder is life imprisonment. Typically, the prisoner will be pardoned by the President after serving 12 to 14 years of his sentence, but this is not automatic.
In jurisprudence, the comparison of an actual crime against "especially brutal or cruel way"-standard has been understood to mean comparison to "usual" homicide cases. In recent cases, the Finnish Supreme Court has not considered a single axe stroke on the head, or strangulation to be "especially brutal or cruel". On the other hand, causing death by jumping on a person's chest and head and firing over 10 times upon a person's torso have been considered to fulfill the standard.
The only sentence for murder is life in prison. Until 2006, this meant an actual life sentence which could be pardoned only by the president. However, the presidents have since 1960s regularly given pardon to practically all offenders after a time of 12-15 years. In 2006, the legislation was changed so that all life sentences are reviewed by an appellate court after they have been executed for 12 years. If the convict is still deemed a danger to society, his case will be reviewed every two years after this. Involuntary confinement to a psychiatric institution may also result, sometimes after the sentence is served. The involuntary treatment ends when the psychiatrist decides so, or when a court decrees it no longer necessary in a periodical review.
There is also the crime of "death" (surma), which is a "manslaughter" under mitigating circumstances, with the punishment of four to ten years. Involuntary manslaughter (kuolemantuottamus) has a maximum punishment of two years of imprisonment or fine (see day fine). Infanticide carries a punishment of at least four months and at most four years in prison.
[edit] Germany
In Germany the term Mord (murder) is officially used for the premeditated killing of another person, as it can be read in § 211 of the German criminal law, Strafgesetzbuch (StGB); citation:
- The murderer shall be punished with imprisonment for life.
- A murderer is, whoever kills a human being out of murderous lust, to satisfy his sexual desires, from greed or otherwise base motives, treacherously or cruelly or with means dangerous to the public or in order to make another crime possible or cover it up.
A killing which is not a murder may be either Totschlag (comparable with Anglo-American second degree murder, but in fact an intentional killing of a person without meeting the qualifications of a murder as seen above) according to § 212 StGB or fahrlässige Tötung (negligent homicide or manslaughter) within the scope of § 222 StGB. Also, if the death is not a foreseeable consequence of an intended or not intended act of violence, it might be classified as Körperverletzung mit Todesfolge (injury resulting in death). If the victim earnestly wanted to be killed (for example, when suffering an incurable disease) the crime would be Tötung auf Verlangen (killing on demand, § 216 StGB) which would result in 6 months to 5 years in prison (usually suspended) – basically, mercy killing. In 2002, there was a cannibal case in which the offender claimed that the victim wanted to be killed. The court convicted him of "Totschlag", since they didn't see the qualifications of a murder. Both prosecution and defense appealed, the prosecution in order to reach a guilty of murder verdict, the defense in order to reduce the charge to killing on demand. He was eventually convicted of murder. (For more details see Armin Meiwes)
The penalty for Mord is lifelong imprisonment, which is usually suspended after 17-18 years (15 years minimum) on a probation of 5 years or if the court decided on a special gravity (Feststellung der besonderen Schwere der Schuld), the sentence can only be suspended much later, earliest after 18 years but usually after 22-23 years (the law states that a suspension after 15 years is not possible for "special gravity" crimes, but provides no explicit minimum served time). The penalty for Totschlag is five to fifteen years in prison, up to life in prison (15 years served minimum) in especially grave cases and one to ten years for lesser cases ("minderschwerer Fall", § 213) German criminal law also knows the institute of the felony murder which also carries a life-long sentence, however only if a person is intentionally or negligently killed in the course of a robbery, a kidnapping or a sexual assault. Noteworthy is also that suicide and therefore aiding and abetting a person intent on killing itself is not punishable by German criminal law.
Before 1949 some cases of murder in Germany mandated capital punishment, but due to the Nazi mass murders and unsolicidated death sentences, the death penalty was abolished in Germany in 1949 when Germany's constitution, the Grundgesetz, came into use.
[edit] Israel
Israel had 173 murders in 2004, compared to 147 murders in 2000 [4].
There are five types of homicide in Israel:
- Murder - The premeditated killing of a person, or the intentional killing of a person whilst committing, preparing for, or escaping from any crime, is murder. The mandatory punishment for this crime is life imprisonment. Life is usually commuted (clemency from the President) to 30 years from which a third can be deducted by the parole board for good behaviour. Arab Militants are not usually granted pardons or parole other than as part of deals with Arab militant organizations or foreign governments and in exchange for captured Israelis (or their bodies).
- Reduced sentence murder - If the murderer did not fully understand his actions because of mental defect (but not legal insanity or imbecility), or in circumstances close to self-defence, necessity or duress or where the murderer suffered from serious mental distress because of long-term abuse, the court can give a sentence of less than life.
- Manslaughter - The deliberate killing of a person without premeditation (or the other circumstances of murder) is manslaughter for which the maximum sentence is 20 years.
- Negligent killing or vehicular killing - Maximum sentence is 3 years (minimum of 11 months for the driver).
- Infanticide - A mother kills her baby of less than 12 months and could show she was suffering from the effects of the birth or breast-feeding. Maximum sentence is 5 years.
[edit] Italy
By Italian law, murder (omicidio) is regulated by articles 575-582, 584-585, and 589 of the Penal Code (Codice Penale). In general, according to Art.575, "whoever causes the death of a human being is punishable by no less than 21 years in prison"; nevertheless, the law indicates a series of circumstances under which murder has to be punished with life in prison.
It must also be noted that, according to Italian law, any sentence of more than 5 years perpetually deprives (Interdizione perpetua dai Pubblici Uffici) the condemned person of: the voting rights; the ability to exercise any public office; the ability to be employed in any governmental or para-statal position (articles 19, 28, 29). The convict for life is also deprived of his/her quality of parent: the children are either given in custody to the other parent or hosted in a public structure (art.32).
In detail, according to articles 576 and 577 is punishable with life imprisonment murder committed:
- In order to commit another crime, or in order to escape, of favor, or take advantage from another crime (art.61, sect.2);
- Against a next of kin (parent or child) and either through insidious means, with premeditation, cruelly, of for futile motives;
- By a fugitive in order to escape capture, or in order to acquire means of subsistence;
- While raping or sexually assaulting a person (articles 519, 520, 521).
- In a cruel way and/or through the use of torture (art.61, sect.1);
- For abject and/or futile motives (art.61, sect.4);
- Against a next of kin (parent or child);
- Through insidious means;
- With premeditation.
Cases 1 through 4 (art.576) used to be considered capital murder, and therefore punishable by death by firing squad. Since 1946, though, death penalty was discontinued in Italy, and death was substituted with life imprisonment without possibility of parole or probation other than by Presidential pardon. Sentences for murder under cases 5 through 9 (art.577), instead, are subject to parole or probation.
Besides the criminal murder detailed above, in Italian law the following cases also exist:
- Infanticide - (Infanticidio in condizioni di abbandono materiale e morale), murder of the infant immediately following the birth committed by the mother who is in conditions of mental of moral disorder, is punishable with a sentence between 4 and 12 years (art. 578).
- Killing on demand - (Omicidio del consenziente), the action to kill someone with his/her consent, is punishable with a sentence between 6 and 15 years. This, however, is considered murder if the victim, when giving his/her consent, was under the age of 18, intoxicated, mentally disable, or if the consent was obtained through violence, menace, or deception (art.579).
- Assistance or instigation of suicide - (Istigazione o aiuto al suicidio), the action to help someone to commit suicide, or to convince someone to commit suicide, is punishable with a sentence between 5 and 12 years if the suicide succeeds, or between 1 and 5 years if it does not succeed. This, however, is considered murder if the suicide is under the age of 14 (art.580).
- Injury resulting in death - (Omicidio preterintenzionale) occurs when, as a not foreseeable result of a deliberated or not deliberated act of violence not meant to kill (articles 581,582), the death of a person occurs. This crime is punishable with a sentence between 10 and 18 years (art.584). This sentence can be increased from one third to one half (up to 27 years) if a circumstance stated by articles 576 and 577 occurs, or if a weapon is used (art.585).
- Manslaughter - (Omicidio colposo), the action of causing the death of a person without intention, is punished with a sentence between 6 months and 5 years. If the victims are more than one as a consequence of the same act, multiple counts can be added up to 12 years in prison (art.589).
[edit] The Netherlands
By Dutch law, murder (moord) is punishable by a maximum sentence of life imprisonment, which is the longest prison sentence the law allows. A common misconception is that the maximum sentence is 30 years (20 until 2006): this is the longest sentence that can be imposed other than life imprisonment. However, a life sentence is only imposed under special circumstances, such as multiple murders or prior convictions. The average sentence is 12 to 15 years[citation needed]. In addition to a prison sentence, the judge may sentence the suspect to TBS, or 'terbeschikkingstelling', meaning detention in a psychiatric institution, sometimes including forced treatment. TBS is imposed for a number of years (most often in relation to the severity of the crime) and thereafter prolonged if deemed necessary by a committee of psychiatrists. This can be done indefinitely, and has therefore been criticized as being a life sentence in disguise. Voluntary manslaughter (doodslag) is punishable by a prison sentence of up to 15 years, or life imprisonment when committed during the commission of a crime or as an act of terrorism. Involuntary manslaughter (dood door schuld) is punishable by a prison sentence of up to two years. If involuntary manslaughter is caused by recklessness, the maximum sentence that can be imposed is four years.
[edit] Norway
In Norway any act of murder (mord or drap) is generally split into three categories; planned murder, intentional murder or murder as a result of neglect.
[edit] Categories of murder
- Planned murder - (overlagt drap) is a murder committed with the intention of taking the life of another, by a person fully sane and aware of what he/she is doing, and having planned the act of murder ahead. Planned murder is punished with up to 21 years of imprisonment. Under special circumstances, like a murder of severe cruelty, or if there is reason to believe the offender may commit murder again, additional years of imprisonment can be given.[5]
- Intentional murder - (forsettlig drap) is a murder committed with the intention of taking the life of another, by a person fully sane and aware of what he/she is doing, without the act of murder having been planned ahead. Murder of passion usually falls into this category. Intentional murder is punished by 6 to 12 years of imprisonment. [6]
- Murder as a result of neglect - (uaktsomt drap) is defined as a case were someone has been killed as a result of the offenders neglect. For example, a car driver may be convicted for murder if someone is killed as a result of his/her careless driving. Murder as a result of neglect is punishable by 3-6 years, depending on the circumstances. [7]
[edit] Other forms of murder
Assisted suicide is generally illegal in Norway, and will in most cases be treated as planned murder, although the punishment may be milder depending on the circumstances.
Euthanasia (aktiv dødshjelp) has been much debated in Norway. Some groups have expressed that it should be legal in cases where the victim is sane and fully aware of what he/she is asking for. Acts of euthanasia is however illegal, and is treated as any other form of assisted suicide.
[edit] Romania
In Romania as of 2005 there were reported 453 homicide cases, and 231 as of June 2006. According to the Romanian Penal Code, a person can face a penalty ranging from 10 to 25 years or life imprisonment for murder. (There are also mandatory restrictions of some constitutional rights for all types of murder.)
Degrees of murder:
- Murder - (10 to 20 years) Killing a person when no aggravating circumstances apply.
- Qualified murder (15 to 25 years) Aggravating circumstances: a)with premeditation b)concerning a material interest c) against spouse or close relative d)taking advantage of victim's impossibility of self-defence e) when putting in danger the lives of multiple persons f)concerning job attributions of the victim g)for facilitating or hiding another crime h)in public
- Extremely grave murder (15 to 25 years or life imprisonment)
Aggravating circumstances: a)committed in a cruel way b)against two or more persons c)by a person who had already committed a murder d)in order to hide a robbery e)against a pregnant woman f)against a policeman, gendarme, magistrate or soldier (in connection with their public duties)
- Negligent or accidental murder (1 to 5 years in simple form)
Aggravating circumstances:
-
- Caused by a professional in connection with his job for not respecting the legal dispositions (2 to 7 years)
- By a vehicle driver with blood alcohol concentration (BAC) above legal limits or in a drunk state (5 to 15 years)
- By a professional in a drunk state - in connection with his job duties (5 to 15 years)
- When causing the death of two or more persons (5 to 15 years)
- Infanticide (2 to 7 years)
[edit] Switzerland
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In Switzerland murder (Mord) is also used for the premeditated killing of another person, but only if the motives are cruel, disgusting or show an overall disrespect of human life. Penalty ranges from ten years to life in prison. Furthermore, homicide is considered murder if it is cruel (e.g. inflicts great pain on the victim) and/or unusual, done so using explosives or arson, or if it is done to satisfy perverse lusts. Any homicide not meeting these standards is considered to be a killing (Tötung), and the penalty is not as heavy. Most homicides in Switzerland are considered killings, with the penalty ranging from 5 to 20 years.
The Swiss equivalent for manslaughter is Totschlag. Killers are sentenced for Totschlag when they committed the crime in a very, and especially excusable, state of excitement (a "Crime of passion"). For example, a wife who's been mistreated by her husband for years, and kills him in a fit of rage, would be sentenced for Totschlag. The penalty is one to five years in prison.
There are many other privileged variants of killing, similar to manslaughter, such as killing on demand of the "victim"; or assisted suicide, in which case the punishment is considerably lower; this latter is only punishable if there are selfish motives. The "assisted suicide" in general is not punishable.
The relevant articles of the Swiss Penal Code (Strafgesetzbuch) are 111 (killing), 112 (murder), 113 (manslaughter), 114 (killing with demand of the victim), 115 (assisted suicide).
[edit] United Kingdom
- Further information: murder in English law
Recent statistics show that there were 859 homicides in England and Wales in one year (April 2004- March 2005, [8]). This is low compared to the United States with 16,137 murders in 2004 [9], however these are numbers which do not take different population sizes into account: a better perspective can be gained by comparing murders per year to population (1.6 murders for every hundred thousand people in England and Wales, 5.5 in the USA, and 62 in Colombia - source). Because the newspaper coverage tends to focus on the more lurid or controversial cases (e.g. Tony Martin), there is considerable public misunderstanding as to the actual law. The Law Commission Final Report on Partial Defences to Murder (2004) [10] commissioned research to determine the extent of this misunderstanding and reported at 2.35:
- The notion that all murders, as the law is presently framed, represent instances of a uniquely heinous offence for which a single uniquely severe penalty is justified does not reflect the views of a cross section of the public when asked to reflect on particular cases
Although the sample was small, the research showed that the public accepts a range of culpability within the definition of murder and so rejects the idea of a single mandatory life sentence. The Report also lists all the main European and common law definitions for homicide at 2.53/2.54.
In English law, the definition of murder is:
- The unlawful killing of a human being, under the Queens Peace, with "malice aforethought").
Contrast this with the original definition by Sir Edward Coke in 1797 of:
Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same.
Note that it is no longer necessary for the victim to die within a year and a day of the offence.
Specific statutory instances of situations where death is caused are:
- Infanticide - Under s1 Infanticide Act 1938, the intentional killing of an infant under 1-year-old by a mother suffering from post-natal depression or other post-natal disturbance represents an early form of diminished responsibility defence and needs reform to bring it into line with modern medical understanding, and
- Causing death by dangerous driving (of a motor vehicle) was introduced because jurors, many of whom were drivers, thought the charge of manslaughter to carry too great a level of stigma for the degree of fault actually shown by some drivers and refused to convict when the charge was manslaughter. Now motor manslaughter is considered an acceptable charge for the more seriously dangerous examples of driving resulting in death, with aggravated TWOC for the least seriously dangerous driving resulting in death.
The aggravated form of criminal damage, including arson, under s1(2) Criminal Damage Act 1971 could be the anticipatory offence rather than a charge of attempted murder.
Any other killing would be considered either manslaughter in English law or an accident.
- Voluntary manslaughter is murder mitigated to manslaughter by virtue of the statutory defences under the Homicide Act 1957, namely provocation, diminished responsibility or suicide pact.
- Involuntary manslaughter is the killing of another person whether by act or omission either while committing an unlawful act (known as constructive manslaughter) or by gross negligence.
English Law also allows for transferred malice. For example, where a man fires a gun with the intent to kill person A but the shot misses and kills an otherwise unconnected person B, the intent to kill transfers from person A to person B and a charge of murder would stand. The accused could also be charged with the attempted murder of A.
As to mens rea, the model direction to be given to juries for Intention in English law following R v. Woollin [11], is a modified version of that proposed by Lord Lane, C.J. in R v Nedrick [1986] 1 WLR 1025, namely:
- Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case, the decision being for the jury to decide on a consideration of all the evidence.
The defences of duress and necessity in English law are excluded from murder cases. An exception is Re A [2000], a case involving a pair of conjoined twins. However, the judge noted the legal adage that 'hard cases make bad law' and recommended that the precedent should not be followed.
Comparatively recent adaptations to the English law of murder include the abolition of the "year and a day rule", and the proposed introduction of a less restrictive regime for corporate manslaughter. The Law Commission Consultation Paper No. 177 also advocates a redefinition of murder and a limitation of the scope of manslaughter [12]
- See also: Scots law#Criminal law and born alive rule
[edit] The United States
In the United States, the principle of dual sovereignty applies to homicide, as to other crimes. If murder is committed within the borders of a state, that state has jurisdiction. If the victim is a federal official, an ambassador, consul or other foreign official under the protection of the United States, or if the crime took place on federal property or involved crossing state borders, or in a manner that substantially affects interstate commerce or national security, then the Federal Government also has jurisdiction. If a crime is not committed within any state, then Federal jurisdiction is exclusive: examples include the District of Columbia, naval or U.S.-flagged merchant vessels in international waters, or a U.S. military base. In cases where a murder involves both state and federal jurisdiction, the offender can be tried and punished separately for each crime without raising issues of double jeopardy.
Modern codifications tend to create a genus of offenses, known collectively as homicide, of which murder is the most serious species, followed by manslaughter which is less serious, and ending finally in justifiable homicide, which is not a crime at all. Because there are 51 jurisdictions, each with its own criminal code, this section treats only the crime of murder, and does not deal with state-by-state specifics.
At base, murder consists of an intentional unlawful act with a design to kill and fatal consequences. Generally, an intention to cause great bodily harm is considered indistinguishable from an intention to kill, as is an act so inherently dangerous that any reasonable person would realize the likelihood of fatality. Thus, if the defendant hurled the victim from a bridge, it is no defense to argue that harm was not contemplated, or that the defendant hoped only to break bones.
The intent to commit murder is often called malice aforethought, and can be inferred when the defendant commits an act that shows depraved indifference to human life, or (in federal court and those states that apply the felony murder rule) whenever a victim is killed during the commission of another felony, whether or not the defendant intended the killing, or even committed the fatal act. In this case, the intention to place the victim in great bodily harm is inferred from the defendant's intent to commit the felony. Some states also require the underlying felony to be an 'inherently' dangerous one.
[edit] Degrees of murder
Before the famous case of Furman v. Georgia in 1972, most states distinguished two degrees of murder. While the rules differed by state, a reasonably common scheme was that of Pennsylvania, passed in 1794: "Murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree."[13] "Murder one", as the term was popularized by novels and television, carried a penalty of death, or life in prison, while the penalty for "murder two" was generally around 20 years in prison. After the Supreme Court placed new requirements on the imposition of the death penalty, most states adopted one of two schemes. In both, third degree murder became the catch-all, while first degree murder was split. The difference was whether some or all first degree murders should be eligible for the most serious penalty (generally death, but sometimes life in prison without the possibility of parole.).
- The first scheme, used by Pennsylvania among other states:
-
- First Degree Murder: All premeditated murders, and (in some states) murders involving certain especially dangerous felonies, such as arson or rape, or committed by an inmate serving a life sentence.
- Second Degree Murder: Non pre-meditated killing.
- Third Degree Murder: Any other murder.
- The second scheme, used by New York among other states, as well as the Model Penal Code:
-
- First Degree Murder: Murder involving special circumstances, such as murder of a police officer, judge, fireman or witness to a crime; multiple murders; and torture or especially heinous murders. Note that a "regular" premeditated murder, absent such special circumstances, is not a first-degree murder; murders by poison or "lying in wait" are not per se first-degree murders. First degree murder is pre-meditated.
- Second Degree Murder: Any premeditated murder or felony murder that does not involve special circumstances.
Some states, such as California, simply preserved the old distinction between two degrees and have no offense called third degree murder. They simply have "first-degree murder" (leading to life in prison) and "first-degree murder with special circumstances" (leading to death), while second-degree murder continues to be the default category.
Other states use the term "capital murder" for those offenses that merit death, and the term is often used even in states whose statutes do not include the term. As of 2006, 38 states and the federal government have laws allowing capital punishment for certain murders and related crimes (such as treason and terrorism). The penalty is rarely asked for and more rarely imposed, but it has generated tremendous public debate. See also capital punishment and capital punishment in the United States.
[edit] Murder of a fetus
Under the common law, if an assault on a pregnant woman resulted in a stillbirth, it was not considered murder; the child had to have breathed at least once to be murdered. Remedies were limited to criminal penalties for the assault on the woman, and a tort action for loss of the economic services of the eventual child and/or emotional pain and suffering. With the widespread adoption of laws against abortion, the assailant could of course be charged with that offense, but the penalty was often only a fine and a few days in jail.
When the Supreme Court greatly restricted laws prohibiting abortions in its notable Roe v. Wade decision (1973) even those sanctions became harder to use. This, among other factors, meant that a more brutal attack, ensuring that the baby died without breathing, would result in a lesser charge. Various states passed "fetal homicide" laws, making killing of an unborn child murder; the laws differ about the stage of development at which the child is protected. After several well-publicized cases, Congress passed the Unborn Victims of Violence Act, which specifically criminalizes harming a fetus, with the same penalties as for a similar attack upon a person, when the attack would be a federal offense. Most such attacks fall under state laws; for instance, Scott Peterson was convicted of murdering his unborn son as well as his wife under Californian pre-existing fetal homicide law.
[edit] Vikings (8th to 11th centuries)
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The Viking culture 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. 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 Viking 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.
[edit] Other usages involving the word
- For other uses of the word "murder" see Murder (disambiguation).
The word "murder" is sometimes used colloquially to mean some forms of mistreatment, e.g. a bad singer "murdering" a song, or describing something difficult to handle as "absolute murder". Sometimes sports announcers make comments like "That team is getting murdered out there!" or "The home team was murdered tonight". Murder is also used in the sense of desiring something greatly, e.g. "I'd murder for a cup of tea". A murder is also the name given to a flock of crows or ravens (see collective nouns for birds).
Also, many people use "murder" to describe a killing they feel is unjust or immoral, regardless of the law. For example, many pro-life activists would consider legal abortions to be "murder." Or, a historian might refer to unjust killings committed by governments (such as the Third Reich) as "murder," even if the killings were legal at the time.
In the U.S. 187 is a slang term for murder, and it sometimes appears in popular culture. The number refers to section 187 of the California Penal Code which covers murder.
[edit] Documentary films
- Blind Spot: Murder by Women, A film by Irving Saraf, Allie Light and Julia Hilder, 2000
- Aileen: Life and Death of a Serial Killer, Director: Nick Broomfield, 2003
[edit] References
- ^ a b Lane, Roger (1999). "Murder in America: A Historian's Perspective" 25: p. 191-224.
- ^ Harris, Anthony R.; Stephen H. Thomas ; Gene A. Fisher ; David J. Hirsch (05 2002). "Murder and medicine: the lethality of criminal assault 1960-1999" (fee required). Homicide studies 6 (2): 128-166. Retrieved on 2006-12-08.
[edit] Other references
- Lord Mustill on the Common Law concerning murder
- Sir Edward Coke Co. Inst., Pt. III, ch.7, p. 50
[edit] See also
- -cide
- Assassination
- Child murder
- Combination of murder and suicide
- Cult homicides
- Deicide
- Democide
- Execution-style murder
- Felony murder
- Femicide
- Filicide
- Fratricide
- Genocide
- Homicide
- Human sacrifice
- Infanticide
- Killology
- List of massacres
- List of unsolved murders and deaths
- Lust murder
- Mass murder
- Manslaughter
- Matricide
- Patricide
- Proxy murder
- Regicide
- Serial killer
- Spree killer
- Suicide
- Thrill killing
- Torture murder
[edit] External links
- U.S. Centers for Disease Control "Atlas of United States Mortality"
- Cezanne's depiction of 'The Murder'
- 1986 Seville Statement on Violence
- Introduction and Updated Information on the Seville Statement on Violence
- Murder Victims Families for Reconciliation, Inc. - An Anti-Capital Punishment Group
Categories: Articles with unsourced statements since February 2007 | All articles with unsourced statements | Articles lacking sources from June 2006 | All articles lacking sources | Articles lacking sources from March 2007 | Articles with unsourced statements since March 2007 | Causes of death | Criminal law | Murder
