For other uses, see Manslaughter (disambiguation).

Manslaughter is a legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the Ancient Athenian lawmaker Draco in the 7th century B.C.E.[1]

The definition of manslaughter differs among legal jurisdictions.


Voluntary manslaughter

Voluntary manslaughter occurs either when the defendant is strongly provoked (under circumstances that could similarly provoke a reasonable person) and kills in the heat of passion aroused by that provocation. However, there are mitigating circumstances that reduce culpability, or when the defendant kills only with an intent to cause serious bodily harm. Voluntary manslaughter in some jurisdictions is a lesser included offense of murder. The traditional mitigating factor was provocation; however, others have been added in various jurisdictions. The most common type of voluntary manslaughter occurs when a defendant is provoked to commit the homicide. It is sometimes described as a heat-of-passion killing. In most cases, the provocation must induce rage or anger in the defendant, although some cases have held that fright, terror, or desperation will suffice.

Involuntary manslaughter

Involuntary manslaughter is the unlawful killing of a human being without malice aforethought, either expressed or implied. It is distinguished from voluntary manslaughter by the absence of intention. It is normally divided into two categories; constructive manslaughter and criminally negligent manslaughter, both of which involve criminal liability.

Constructive manslaughter

Constructive manslaughter is also referred to as "unlawful act" manslaughter. It is based on the doctrine of constructive malice, whereby the malicious intent inherent in the commission of a crime is considered to apply to the consequences of that crime. It occurs when someone kills, without intent, in the course of committing an unlawful act. The malice involved in the crime is transferred to the killing, resulting in a charge of manslaughter.

For example, a person who fails to stop at a red traffic light while driving a vehicle and hits someone crossing the street could be found to intend or be reckless as to assault or criminal damage (see DPP v Newbury[2]). There is no intent to kill, and a resulting death would not be considered murder, but would be considered involuntary manslaughter. The accused's responsibility for causing death is constructed from the fault in committing what might have been a minor criminal act. Reckless drinking or reckless handling of a potentially lethal weapon may result in a death that is deemed manslaughter.

Involuntary manslaughter may be distinguished from accidental death. A person who is driving carefully, but whose car nevertheless hits a child darting out into the street, has not committed manslaughter. A person who pushes off an aggressive drunk, who then falls and dies, has probably not committed manslaughter, although in some jurisdictions it may depend whether "excessive force" was used or other factors.

It is also possible to be held civilly liable for a death (and pay damages) without being criminally liable (and going to prison), e.g. O.J. Simpson.

As manslaughter is not defined by legislation in Australia, common law decisions provide the basis for determining whether an act resulting in death amounts to manslaughter by unlawful and dangerous act.[3] To be found guilty of manslaughter by an unlawful and dangerous act, the accused must be shown to have committed an unlawful act which is contrary to the criminal law[4] and that a reasonable person in the position of the accused would have known that by his or her act, he or she was exposing the victim to an ‘appreciable risk of serious injury’.[5]

Criminally negligent manslaughter

Criminally negligent manslaughter is variously referred to as criminally negligent homicide in the United States, and gross negligence manslaughter in England and Wales. In Scotland and some Commonwealth of Nations jurisdictions the offence of culpable homicide might apply.

It occurs where death results from serious negligence, or, in some jurisdictions, serious recklessness. A high degree of negligence is required to warrant criminal liability.[6] A related concept is that of willful blindness, which is where a defendant intentionally puts himself or herself in a position where the defendant will be unaware of facts which would render him or her liable.

Criminally negligent manslaughter occurs where there is an omission to act when there is a duty to do so, or a failure to perform a duty owed, which leads to a death. The existence of the duty is essential because the law does not impose criminal liability for a failure to act unless a specific duty is owed to the victim. It is most common in the case of professionals who are grossly negligent in the course of their employment. An example is where a doctor fails to notice a patient's oxygen supply has disconnected and the patient dies (R v Adomako).[7] Another example could be leaving a child locked in a car on a hot day.

Vehicular or intoxication manslaughter

In some jurisdictions, such as the United States, there exists the specific crime of Vehicular or intoxication manslaughter. An equivalent in Canada is causing death by criminal negligence under the Criminal Code, punishable by a maximum penalty of life imprisonment.

Assisted suicide

Main article: Assisted suicide

Assisted suicide is suicide committed with the aid of another person, sometimes a physician.

In some places, such as most of the United States of America,[8] assisted suicide is punishable as manslaughter. In other countries and states, such as Switzerland, assisted suicide is legal.[9]

Regional differences

The definition of manslaughter differs from one jurisdiction to another.

The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind, or the circumstances under which the killing occurred (mitigating factors). Manslaughter is usually broken down into two distinct categories: voluntary manslaughter and involuntary manslaughter.[10] However, this is not the case in all jurisdictions, for example, in the U.S. state of Florida.[11]

In some jurisdictions, such as the UK, Canada, and some Australian states, "adequate provocation" is a partial defense to a charge of murder, which, if accepted by the jury, would convert what would otherwise have been murder into manslaughter.

United States law

Manslaughter is a crime in the United States.

English law

In English law, manslaughter is a less serious offence than murder. In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option (see lesser included offence). The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.

The Homicide Act 1957 and Coroners and Justice Act 2009 are relevant acts.

Voluntary manslaughter occurs when the defendant avails him/herself of the three statutory defenses described in the 1957 Homicide Act (provocation, diminished responsibility, and the suicide pact).

Involuntary manslaughter occurs when the agent has no intention (mens rea) of committing murder, but caused the death of another through recklessness or criminal negligence.The crime of involuntary manslaughter can be subdivided into two main categories: constructive manslaughter and gross negligence manslaughter. [12]

Canadian law

Canadian law distinguishes between justifiable, accidental and culpable homicide. If a death is deemed a culpable homicide, it generally falls under one of four categories (first degree murder, second degree murder, manslaughter, and infanticide).

Canadian law defines manslaughter as "a homicide committed without the intention to cause death, although there may have been an intention to cause harm." There are two broad categories of manslaughter: Unlawful act and Criminal negligence.

Unlawful act is when a person commits a crime that unintentionally results in the death of another person.

Criminal negligence is when the homicide was the result of an act that showed wanton or reckless disregard for the lives of others. [13]

Australian law

In Australia, specifically New South Wales, manslaughter is a common law offence as it is not defined in the Crimes Act 1900 (NSW) under section 18(1)(b),[14] but in the case of Wilson v R[15] and Cittadini v R.[16] The authority for the actus reus and mens rea of involuntary manslaughter by an unlawful and dangerous act is the High Court of Australia case of Wilson v R.[17] This case determined that the act that caused the death must breach the criminal law and that the act must carry an appreciable risk of serious injury (actus reus). Regarding the mens rea, the court held that the accused must intend to commit the unlawful act and that a reasonable person in the position of the accused would have realised or recognised that the act carried an appreciable risk of serious injury.

Manslaughter in criminal negligence in New South Wales

In New South Wales, homicide includes two main branches of category, 1) murder, and 2) manslaughter.[18] As defined, murder has a clear-cut mens rea and is assessed by the use of subjective tests because the accused has to have intention to commit a murder.[19] In cases of voluntary manslaughter, the requisite mens rea exists, but the offence is reduced to manslaughter due to partial defences including provocation and diminished responsibility.[20] However, in involuntary manslaughter cases (including both criminal negligence and unlawful and dangerous acts), the intention of the accused cannot be easily proved because manslaughter may involve recklessness and negligence intentions. In many cases, the accused does not have knowledge that his/her action may have caused another person's death; therefore, the courts generally used objective tests to determine whether the accused is guilty or not.[21] Objective test provided a reasonable person's view on circumstantial conditions and if the accused action does not align with the reasonable person's view, he/she is considered guilty of the manslaughter charge. This has given rise to a series of doubts as to whether the courts should also acknowledge the subjective minds and limitations of the accused as charged. People should not be jailed simply in the event of bad luck.[22] Authors such as Lord Irvine suggested that the courts should strike a balance between both tests because the use of both test can cover the disadvantages of using only one.[23]

In New South Wales, manslaughter in criminal negligence uses objective test to prove the mens rea of the crime. This view was affirmed in Nydam and re-affirmed in Lavander.[24] However, objective tests being used include some degree of subjectivity – the reasonable person would be put into the accused age, knowledge and surrounding circumstance etc.[25]

See also


  1. Ehrenberg, Victor (1973) [1968]. From Solon to Socrates: Greek History and Civilization During the 6th and 5th Centuries BC (Second ed.). New York: Routledge. p. 57. ISBN 978-0-415-04024-2. Retrieved 31 December 2015.
  2. [1977] AC 500
  3. Lane v R [2013] NSWCCA 317 at [46] AustLII
  4. Wilson v R (1992) 174 CLR 313 per Brennan, Deane and Dawson JJ at [2] AustLII
  5. Wilson v R (1992) 174 CLR 313 per Mason CJ, Toohey, Gaudron and McHugh JJ at [48] AustLII
  6. see The Queen v Lavendar [2005] HCATrans 183 [ AustLII]
  7. R v Adomako [1994] 3 WLR 288
  11. "FL statute 782.07". FL Senate.
  14. Section 18 Crimes Act 1900 (NSW) AustLII
  15. Wilson v R [1992] HCA 31; (1992) 174 CLR 313 AustLII
  16. Cittadini v R [2009] NSWCCA 302;
  17. Wilson v R [1992] HCA 31 AustLII
  18. Crimes Act 1900 (NSW) s 18. AustLII
  19. Eric Colvin, ‘Ordinary and Reasonable People: The design of Objective Tests for Criminal Responsibility’ (2001) 27 Monash University Law Review, 2, at 197-228
  20. Section 23 Crimes Act 1900 (NSW) AustLII; Section 23A AustLII
  21. Nydam[1977] VR 430 AustLII; Lavender [2005] HCA 37; 222 CLR 67 AustLII; Wilson (1992) 174 CLR 313 AustLII
  22. The Right Hon Lord Irvine of Lairg, Lord Chancellor, "Intention, Recklessness and Moral Blameworthiness: Reflections on the English and Australian Law of Criminal Culpability" (2001) 23, Sydney Law Review 5, at 17.
  23. Ibid.
  24. Nydam [1977] VR 430 AustLII; Lavender [2005] HCA 37; 222 CLR 67 AustLII
  25. The Right Hon Lord Irvine of Lairg, Lord Chancellor, ‘Intention, Recklessness and Moral Blameworthiness: Reflections on the English and Australian Law of Criminal Culpability’ (2001) 23 Sydney Law Review 5, at 17; Nydam [1 977] VR 430; Lavender [2005] HCA 37; 222 CLR 67.
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