Definitions

First-degree Murder

Murder

[mur-der]

Murder is the unlawful killing of another human person with malice aforethought, as defined in Common Law countries. Murder is generally distinguished from other forms of homicide by the elements of malice aforethought and the lack of lawful justification. All jurisdictions, ancient and modern, consider it a most serious crime and therefore impose severe penalty on its commission.

Legal analysis of murder

Common law murder is defined as the: 1. unlawful 2. killing 3. of another human person 4. with a state of mind known as "malice aforethought."

The first three elements are relatively straightforward; however, the concept of "malice aforethought" is a complex one that does not necessarily mean premeditation. The following states of mind are recognized as constituting the various forms of "malice aforethought":

(i) Intent to kill; (ii) Intent to inflict serious bodily harm short of death; (iii) Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"); or (iv) 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 second-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 criminal homicides are felonies.

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.

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.

The term 'Assassin' derives from Hashshashin, a militant Ismaili Muslim 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.

The Thuggee cult that plagued India was devoted to Kali, the goddess of death and destruction. 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.

Codification

The crime of murder was often formally codified after democratic reform in various jurisdictions, legislatures began passing statutes.

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. At Common Law, murder is consider 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. 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.

Basic elements

In common law jurisdictions, murder has two elements or parts:

  1. the act (actus reus) of killing a person
  2. the state of mind (mens rea) of intentional, purposeful, malicious, premeditated, and/or wanton.

While murder is often expressed as the unlawful killing of another human being with "malice aforethought", this element of malice may not be required in every jurisdiction (for example, see the French definition of murder below).

  • The element of malice aforethought can be satisfied by an intentional killing, which is considered express malice.
  • Malice can also be implied: deaths that occur by any recklessness or during certain serious crimes are considered to be implied malice murders.

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).

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. Most jurisdictions legally distinguish killing a fetus or unborn child as a different crime, such as illegal abortion of a fetus or the unlawful killing of an unborn child. The distinction between a fetus and an unborn child in these jurisdictions is that a child could survive if it had been born, while a fetus could not.

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. 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:

Under the French Penal Code:

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.

Post-partum depression

Some countries, such as Canada, Italy, the United Kingdom, New Zealand and Australia, allow post-partum 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 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).

Self-defense

Acting in self-defense or in defense of another person is generally accepted as legal justifications 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.

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 constitutes reckless killing, while criminally negligent homicide is a grossly negligent killing.

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 to obtain a manslaughter conviction, instead of murder, in the assassination of Mayor George Moscone and Supervisor Harvey Milk.

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.

Abolition of the rule

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.

Demographics

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.

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, with rates in larger cities sometimes over 40 per 100,000.

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 decreasingly likely 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.

There are an estimated 55,000 murders in Brazil every year, about 30,000 murders committed annually in Russia, approximately 25,000 murders in Colombia (in 2005, murders went down to 15,000), approximately 20,000 murders each year in South Africa, approximately 17,000 murders in the United States (666,160 murders from 1960 to 1996), 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, approximately 1000 murders in France, approximately 580 murders per year in Canada, and approximately 200 murders in Chile. The murder rate in Port Moresby, Papua New Guinea is 23 times that of London.

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.

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, 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. Gun control advocates further point out that, unlike the United States, many European countries disallow gun ownership by private citizens but Switzerland has the least restrictive firearm laws and corresponding higher gun murder deaths. Canada introduced a comprehensive Firearms Certificate program in 1977, which was followed by a sharp decline in its homicide rate (and its firearm homicide rate) however firearm homicide rates have crept back up to pre-1977 levels by 2005 even though the overall rate remains less. 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.

Country-specific murder law

Australia

Murder is defined in the New South Wales (NSW) Crimes Act 1900 as follows: Under NSW law, the maximum penalty for murder is life imprisonment with a standard non-parole period of 20 years. Attempted murder carries a maximum penalty of 25 years imprisonment. Note that in order to be guilty of murder under the NSW Crimes Act, intent to cause grievous bodily harm is enough to secure a conviction for murder, as is felony murder (constructive murder in Australia).

There is a statutory defence of provocation in NSW law, if provocation is proven and the person would have otherwise been convicted of murder, directs the jury to find the defendant not guilty of murder but guilty of manslaughter. However, this is not the case in Victoria - the Crimes Act 1958 (VIC), in Section 3B, states:

The rule of law that provocation reduces the crime of murder to manslaughter is abolished.

Under Victorian law, it is illegal to kill, by unlawful means, an unborn child that is capable of being born alive. This offence is termed child destruction in the Act. For example, if Person A assaulted Person B with intent to kill B's unborn child, Person A is guilty of child destruction and assault - and thus would be liable, under Victorian law to 15 years imprisonment for child destruction plus 5 years imprisonment for assault.

In any jurisdiction within Australia, the maximum penalty for murder is life imprisonment. NSW law follows the life means life construction; therefore the maximum sentence is life without possibility of parole.

Canada

As defined in the Criminal Code of Canada, murder is considered one type of culpable homicide, distinguished from the offences of manslaughter or infanticide.

First and second degree

In Canada, murder is classified as either first or second degree.

  1. First degree murder is a murder which is (1) planned and deliberate, (2) contracted, (3) committed against an identified peace officer, (4) while committing or attempting to commit one of the following offences (hijacking an aircraft, sexual assault, sexual assault with a weapon, aggravated sexual assault, kidnapping and forcible confinement or hostage taking), (5) while committing criminal harassment, (6) committed during terrorist activity, (7) while using explosives in association with a criminal organization, or (8) while committing intimidation.
  2. Second degree murder is all murder which is not first degree murder. It could be "spur of the moment."

Manslaughter and infanticide

  1. Manslaughter is any culpable homicide which is not murder or infanticide. To kill someone with a deadly weapon, or may not be so.
  2. Infanticide is the killing of a newly-born child by its mother where the mother's mind was disturbed as a result of giving birth or of consequent lactation. It is a type of homicide but is excluded from murder.

Penalties

The maximum penalties for murder are:

  1. 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)
  2. 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)

There is a clause under which a person convicted of any "personal injury offence" meeting the statutory criteria may 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 ineligible 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.

Denmark

In Denmark manddrab (manslaughter) is the term used by the Danish penalty law to describe the act of intentionally killing another person. No distinction between manslaughter and murder exists. The penalty goes from a minimum of five years (six years in the case of regicide) to imprisonment for life.

Besides the general offence described above there are more specific homicide offences in Danish law that are not considered as grave as manslaughter. Infanticide is defined as a mother who kills her child during or immediately after childbirth due to distress, fear of infamy or under the influence of a debilitation, bewilderment or perplexity caused by giving birth and is punished with imprisonment for up to four years. Euthanasia is defined as killing somebody on their definite request and is punished with imprisonment for up to three years. While attempting suicide is not considered criminal in Danish law, assisting somebody in committing suicide is punishable by imprisonment for up to three years.

Besides deliberate killing two offences regarding the unintentional killing of someone exist in Danish law. Negligent homicide is defined as negligently causing the death of another person. The penalty is a fine or imprisonment for up to four years, under aggravating circumstances imprisonment for up to eight years. Death caused by aggravated battery describes the situation where the perpetrator has the intention to commit an aggravated battery but where the battery leads to the unintentional death of the victim. The punishment is imprisonment for up to ten years.

England and Wales

In English law, the definition of murder is:

The unlawful killing of a human being, under the Queen's Peace, with "malice aforethought").

Contrast this with the original definition by Sir Edward Coke CJ in 1597 of:

Note that it is no longer necessary for the victim to die within a year and a day of the offence, nor for the victim to be a reasonable creature.

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
  • 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, 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. Another defence is that of double effect. As established in the 1957 trial of Dr John Bodkin Adams, causing death through the administration of lethal drugs to a patient, if the intention is solely to alleviate pain, is not considered murder.

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.

Finland

In Finland, murder is defined as homicide with at least one of four aggravating factors:

  1. Deliberate intent
  2. Exceptional brutality or cruelty
  3. Significantly endangering public safety
  4. Committed against a public official engaged in enforcing the law.

Further, the offense considered as a whole must be aggravated. A murder doesn't expire.

The only possible punishment for murder is life imprisonment. Typically, the prisoner will be pardoned by the Helsinki Court of Appeals after serving 12 to 14 years of his sentence, but this is not automatic. The President can also give pardon, and previously this used to be the only possibility.

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, since the 1960s presidents have regularly given pardons to practically all offenders after a period 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.

If the prerequisites are not fulfilled, but the homicide has been deliberate and premeditated, the convict is sentenced for second degree murder (tappo) to a minimum of eight years in prison. There is also the crime of voluntary manslaughter (surma), which is a homicide under mitigating/extenuating 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.

France

In the French Penal Code murder is defined by the intentional killing of another person. Murder is punishable by
a maximum of 30 years of criminal imprisonment (no more 20 years if the defendant aren't sentenced to 30 years).
Assassination (murder with premeditation) and murder in some special case (if the victim is under 15, parents, child, people with disabilities, police officer etc.) are punished by a jail time up to life imprisonment (no more 30 years if the defendant aren't sentenced to life). In France except for recidivist the minimum sentence in criminal prosecution is one or two year of imprisonment, imprisonment which may be suspended if the term of the sentence is under 5 years. Manslaughter is punishable by 15 years of criminal imprisonment, dans 20 years with aggraving circumstances (the same who make a murder eligible for life in jail).

Germany

In Germany the term Mord (murder) is officially used for the intentional killing of another person, but only if the case is especially severe. The requirements can be read in § 211 of the German criminal law, Strafgesetzbuch (StGB).

Those qualifying circumstances are categorized into three groups: 1. detestable motive 2. detestable way of committing the crime 3. detestable purpose/aim of the criminal.

Intentional killing that isn't murder usually fulfills § 212 (Totschlag = killing: similar to second-degree murder, however actually any case of killing that is not fulfilling the qualifications of murder as seen above - actually the same as Tötung (killing) in Swiss law).

The current form of § 211 StGB was created in the year 1941. Before that the differentiation between Mord (murder) and Totschlag (killing) was, that Mord was killing "with premeditation" ("mit Überlegung" - directly translated: with consideration, however that is just another legal word for the same concept) and Totschlag without (1871-1941). However this differentiation was considered too vague. The reform was orientated on discussions for the reform of the Swiss StGB, which also had the same differentiation. It took over the idea and mainly also the wording of the reform commission for the Swiss StGB headed by Stoss in 1896. With this version, the differentiation between Mord and Totschlag contains problems. This led to ongoing discussions in the legal community about the wording, the interpretation and also about a reform of the law.

If the victim of a killing 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, Armin Meiwes, 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. The German "Bundesgerichtshof", the highest German court of appeal, eventually convicted him of murder.

If the killing was due to negligence it is punished according to § 222 StGB as fahrlässige Tötung (negligent homicide or manslaughter). Many cases in this field are car accidents due to negligence that result in the death of a person.

If the death is a negligent consequence of an intended act of violence, it is classified as Körperverletzung mit Todesfolge (injury resulting in death).

Penalties

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 and in especially grave cases life time imprisonment (minimum sentence 15 years). Especially grave cases are very rare, because usually such case already fall under Mord (§ 211). In lesser cases ("minderschwerer Fall", § 213) the prison sentence is one to ten years. The law itself gives one example for a minor case: the killing due to the provocation of the killed person, e.g. if the killed person has beaten him or one of his relatives or has severely insulted them and the killer acted under the influence of great anger. The lesser case of Totschlag is similar.

Felony murder

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. Actually only if the killing was intended by the criminal it is called murder. Intention also includes cases very the criminal knows, that the victim could die, if he simply takes that into account for other purposes.

Robbery with deadly outcome

If the killing was due to gross negligence the criminal can be punished for robbery with deadly outcome (Raub mit Todesfolge) according to § 251. The punishent is a lifetime prison sentence or a prison sentence not below 10 years. The same applies for rape with deadly outcome (§ 178: Vergewaltigung mit Todesfolge) and other crimes.

Attempted suicide

It is also noteworthy that (attempted) suicide and aiding (aktive Sterbehilfe) and abetting a person intent on killing himself is not punishable by German criminal law.

Capital Punishment

Before 1949 the usual punishment for Mord (§ 211) in Germany was capital punishment, except in less severe cases. But due to the Nazi mass murders and death sentences, it was abolished in West Germany in 1949 when Germany's constitution, the Grundgesetz, came into use. In East Germany the death penalty was abolished in 1987. After the 1950s it was very rarely used.

Israel

Israel had 173 murders in 2004, compared to 147 murders in 2000. Two particular characteristics of homicide in Israel are the terrorist attacks and (so called) honour killings.

There are five types of homicide in Israel:

  1. 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 terrorists are not usually granted pardons or parole other than as part of deals struck with Arab terrorist organisations or foreign governments and in exchange for captured Israelis or their corpses.
  2. 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. This is a new addition to the Israeli penal code and has been rarely used.
  3. 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. The sentence depends on the particular circumstances of the crime and its perpetrator.
  4. Negligent killing or vehicular killing - Maximum sentence is 3 years (minimum of 11 months for the driver). The perpetrator in this situation can expect to receive some jail time of about 6 - 12 months.
  5. Infanticide - The killing of a baby less than 12 months old by its mother where she can show that she was suffering from the effects of the birth or breast-feeding. Maximum sentence is 5 years.

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:

  1. In order to commit another crime, or in order to escape, of favor, or take advantage from another crime (art.61, sect.2);
  2. Against a next of kin (parent or child) and either through insidious means, with premeditation, cruelly, of for futile motives;
  3. By a fugitive in order to escape capture, or in order to acquire means of subsistence;
  4. While raping or sexually assaulting a person (articles 519, 520, 521).
  5. In a cruel way and/or through the use of torture (art.61, sect.1);
  6. For abject and/or futile motives (art.61, sect.4);
  7. Against a next of kin (parent or child);
  8. Through insidious means;
  9. 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 . Sentences for murder under cases 5 through 9 (art.577). instead, are subject to parole or probation.A person that is serving a life sentence can reach libertà condizionata

Besides the criminal murder detailed above, in Italian law the following cases also exist:

  1. 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 material or moral disorder, is punishable with a sentence between 4 and 12 years (art. 578).
  2. 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).
  3. 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 but a body injury has been made. This , however, is considered murder if the suicide is under the age of 14 (art.580).
  4. Injury resulting in death - (Omicidio preterintenzionale) occurs when, as a result of a 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).
  5. 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).

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. A life sentence is given 4 to 5 times a year on average and currently over 30 people are serving a life sentence in the Netherlands. They will all die in prison unless given parole by either Queen Beatrix or her successor. The average sentence is 12 to 15 years. 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.

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.

Categories of murder

  1. Planned murder or First Degree 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 or 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. This usually takes place at a court hearing near the end of the sentence.
  2. Intentional murder or Second Degree 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 or 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.
  3. Murder as a result of neglect or manslaughter - (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 or her careless driving. Murder as a result of neglect is punishable by 3 to 6 years, depending on the circumstances.

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 or she is asking for. Acts of euthanasia, however, are illegal, and are treated as any other form of assisted suicide.

Portugal

Overview

The Portuguese Penal Code was adopted in 1982 and has been revised on several occasions, most recently in 2007. It devotes a whole chapter on "crimes against human life". In fact, the very first crime addressed on that code is murder. The Portuguese Constitution (adopted in 1976) expressly forbids the death penalty (art. 24, § 2) and life imprisonment (art. 30, § 1). Additionally, since 1997, the Constitution does not allow the extradition of anyone who would be subject to any of those two forms of punishment at the requesting country. Unless binding assurances are given that the suspect will not be sentenced to either death penalty or life imprisonment, the extradition must be rejected.

Additionally, the Penal Code states that no person may be sentenced to a prison term longer than 25 years, whichever crimes he or she has been found guilty of committing. Therefore, a multiple murderer - no matter how many actual homicides - will not serve more than 25 years in prison. Likewise, in the case murder is committed in addition to other fellonies, the defendant will be sentenced to a single prison term, for a period no longer than 25 years, encompassing the applicable terms for each crime committed.

It should also be mentioned that, according the Portuguese Penal Code, only very rarely will a sentence of less than 5-years imprisonment be enforced. In fact, article 75, § 1, states that if an offence is punishable by a prison term or another non-detentive form of punishment, the court should opt for the non-detentive punishment "if this punishment will satisfy adequately the objectives of the criminal law."

Therefore, someone convicted to up to 5 years in prison will be put on probation or (if the sentence if for less than 3 years) will simply have the prison sentence suspended. If the convicted felon commits another intentional crime during the period of suspension or probation, he or she will serve fully the prison term. Probation or term-suspension usually will only be denied in the case of criminals with very long criminal records.

Homicide

Intentional murder, or homicide, is split into two categories, much like the American classification of murder in the first degree and murder in the second degree discussed above. Homicide, or wilful and intentional murder (art. 131 of the Penal Code), is punishable with a prison sentence of no less than 8 years and no longer than 16 years. Aggravated homicide(art. 132 of the Penal Code) is considered any wilful and intentional act in which death is provoked under particularly censurable or malicious circumstances, and is punishable with a prison term of no less than 12 and no longer than 25 years. The following circumstances are adequate to constitute a case of aggravated homicide:
a) When the murderer is a descendant or an ascendant, either by blood or adoption, of the victim.
b) When the victim is the spouse, former spouse, or person of the same or different with sex with whom the felon had a marital relationship, even if not a member of the same household, or the other parent of the son or daughter of the felon.
c) When the victim is especially defenceless, due to his/her age, handicap, illness or pregnancy.
d) When the murder employs torture or other act of cruelty to enhance the victim's sufferance.
e) When the murder is determined by greed, by the pleasure of causing death or suffering, for personal enjoyment or sexual gratification or any other futile motive.
f) When the murder is determined by racial, religious or political hatred or motivated by the colour, ethnical or national origin, sex or the sexual orientation of the victim.
g) When the murder takes place in order to prepare, facilitate, execute or dissimulate another crime, or to facilitate the escape from the authorities.
h) When the act is carried out in conjunction with, at least, another two people or when an especially dangerous mean is used to cause death.
i) When poison or any other insidious mean is used to cause death.
j) When the intent to commit murder has persisted for longer than 24 hours.
l) When the victim is the holder of public office, a docent, a minister of any religious cult, a judge or referee of any federated sport, and the act is related and caused by the exercise of said functions.
m) When the murderer is a public servant (e.g. a police officer) and the act takes place with serious abuse of authority.

Other than homicide and aggravated homicide, the Penal Code also has provisions for other forms of intentionally and unlawfully causing someone's death:

  • Privileged homicide (art. 133) - when the murder takes place under an understandable violent emotion, compassion, despair or other socially or morally relevant motive, such as to significantly diminish the murderer's degree of guilt. Punishment in this case is prison for 1 to 5 years.
  • Homicide by request (art. 134) - when the murder is carried out at the serious, constant and explicit request of the victim. Punishment is prison for 6 months to 3 years.
  • Inciting or assisting suicide (art. 135) - if someone incites or assists another person to commit suicide, he or she is sentenced to prison for 6 months to 3 years. The punishment is increased to a prison term of 1 to 5 year, in the case the victim is under 16 years old or has, in any way, his or her capacity impaired.
  • Infanticide (art. 136) - when the mother, under the disturbing influence of delivering the baby, commits murder while delivering it, or immediately afterwards. Punishment is 1 to 5 years imprisonment.
  • Abortion (art. 140) - abortion carried out without the consent of the pregnant woman is punishable with imprisonment for 2 to 8 years. Abortion with the consent of the pregnant woman carries a prison term of 6 months to 3 years; the same penalty applying to the woman consenting to the abortion. However, abortion is not punishable if carried out at a registered clinic or hospital, at the request of the pregnant woman, until the tenth week of pregnancy (or later, in some circumstances).

Manslaughter

Manslaughter, which art. 136 of the Penal Code refers to as homicide caused by negligence, is punishable with a prison term of no less than 6 months and no longer than 3 years, or a fine. If the death is caused by gross negligence the penalty the prison term is of 6 months to 5 years.

Additionally, unintentionally causing someone's death while committing a crime other than homicide is an aggravating factor in the determination of the punishment applicable to that specific crime. For example, if the crime of abandonment (exposing a defenceless person to a situation in which he or she will not to be able to cope with, therefore causing harm to the victim) results in the victim's death, the punishment is 3 to 10 years imprisonment, whereas the normal penalty would be 1 to 5 years. In another example, aggravated assault resulting in the death of the victim is punishable with 3 to 13 years imprisonment, whereas the usual penalty would be 2 to 10 years.

Conditional liberty

Inmates are usually not required to serve fully their prison terms. The Penal Code allows for the possibility of releasing them on conditional liberty ("liberdade condicional"), or parole. Parole is granted once one-half of the term has been served if both the following requirements are met:

  • One would reasonably expect the inmate, given the circumstances of his or her life, previous conduct, personality and evolution during incarceration, to behave in a socially responsible way without committing crimes, if released.
  • The release of the convict will not endanger the public order nor aggravate the community.

If the second requirement is not met (which would be the case when the particular crime has cause huge uproar in the community), the inmate will be released once two-thirds of the prison term have been served, as long as the inmate is reasonably expected to behave in a socially responsible way without committing crimes, if released. Even if the inmate is not expected to behave in a socially responsible way, he or she is released once five sixths of the prison terms have been served, unless the inmate refuses to be released. Parole last for the remaining period of the unserved prison term, but no longer than 5 years. Once the period of parole is fully served in a satisfactory manner, the remaining unserved prison sentence is declared void.

Status of convicts and felons

Convicts and felons may not suffer any effect from their criminal conviction other than deprivation of liberty for the period of incarceration, unless the sentence specifically establishes other effects in a direct and reasonable relationship with the offence committed. Convicts do not lose any right or entitlement due to their conviction, namely political rights. In fact, on election day polling stations are set up at the major prison establishments so that inmates may exercise their right to vote, if they so wish. Any criminal conviction registered on the felon’s criminal record is stricken after a certain period of time, depending on the gravity of the offence. In the case of murder, this fact would be stricken from the murderer's criminal record once 15 years have elapsed from fully serving his or hers sentence without committing any other offence.

Romania

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:

a) Caused by a professional in connection with his job for not respecting the legal dispositions (2 to 7'' years)
b) By a vehicle driver with blood alcohol concentration (BAC) above legal limits or in a drunk state (5 to 15 years)
c) By a professional in a drunk state - in connection with his job duties (5 to 15 years)
d) When causing the death of two or more persons (5 to 15 years)

  • Infanticide (2 to 7 years).

Switzerland

In Switzerland murder (Mord, Assassinat or Assassinio respectively in German, French or Italian) 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, Meurtre or Omicidio), 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, Meurtre passionel or Omicidio passionale. 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 ten 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 to 117 (and in a certain measure, 118 to 120), which can be read in the Swiss Penal Code, second book, in French, Italian, or German.

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.

Murder is the unlawful killing of human being with malice aforethought. Malice can be expressed (intent to kill) or implied. Implied malice is proven by acts that involve reckless indifference to human life or in a death that occurs during the commission of certain felonies (the felony murder rule). The exact terms of the felony murder vary tremendously from jurisdiction to jurisdiction. Sentencing for murder in the United States has a mean of 349 months and a median of 480 months.

Degrees of murder in the United States
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 willful, 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 (or capital murder in some states that carry the death penalty); and all other kinds of murder shall be deemed murder of the second degree. "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 80 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.).

#First Degree Murder: A premeditated murder, 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 (e.g. when the intent was not to kill, but to harm the victim)

#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. However, the New York Court of Appeals struck down the death penalty as unconstitutional in the case of People v. LaValle.
#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 with a possibility of parole) and "first-degree murder with special circumstances" (leading to death or life without the possibility of parole), while second-degree murder continues to be the default category (punished by life in prison with a shorter term until parole eligibility).

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, terrorism, and espionage). 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.

Fetal homicide in the United States

Under the common law, an assault on a pregnant woman resulting in a stillbirth was not considered murder; the child had to have breathed at least once to be a human being. Remedies were limited to criminal penalties for the assault on the mother and tort action for loss of the anticipated economic services of the lost child and/or for emotional pain and suffering. With the widespread adoption of laws against abortion, the assailant could be charged with that offense, but the penalty was often only a fine and a few days in jail.

When the Supreme Court greatly reduced laws prohibiting abortions in Roe v. Wade (1973) those sanctions became harder to use. This meant that an assault which ensured that the baby never breathed 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 killing his unborn son as well as his wife under California's pre-existing fetal homicide law.

Vikings (8th to 11th centuries)

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.

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