Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.[1]

The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind. This is particularly true within the law of homicide, where murder requires either the intent to kill – a state of mind called malice, or malice aforethought – or the knowledge that one's actions are likely to result in death; manslaughter, on the other hand, requires a lack of any prior intention to kill or create a deadly situation.

Manslaughter is usually broken down into two distinct categories: voluntary manslaughter and involuntary manslaughter.


Voluntary manslaughter

Voluntary manslaughter occurs either when the defendant kills with malice aforethought (intention to kill or cause serious harm), but there are mitigating circumstances which 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.

Laws in the United States

There have been many types of voluntary manslaughter. These have not been differentiated here as they are so closely related or indistinguishable that many US jurisdictions do not differentiate between them.[2] The following are some examples of defenses which may be raised to mitigate murder to voluntary manslaughter:

  • Provocation: A killing which occurs after provocation by an event which would cause a reasonable person to lose self-control. There must not be a cooling off period negating provocation. If there is an interval between the provocation and killing sufficient to allow the passion of a reasonable person to cool, the homicide is not manslaughter, but murder.
  • Imperfect self-defense: Allowed only in a limited number of jurisdictions in the United States, self-defense is a complete defense to murder.[clarification needed (see talk page)] However, a person who acted in self defense with an honest but unreasonable belief that deadly force was necessary to do so could still be convicted of voluntary manslaughter or deliberate homicide committed without criminal malice. Malice is found if a person killed intentionally and without legal excuse or mitigation.
  • Diminished capacity is a defense which serves to negate the mental state of "malice". If a jurisdiction recognizes that a person can kill without justification, but also without any evil intent, for example due to a mental defect or mental illness, that jurisdiction is free to define the crime as something less than murder. This partial defense is only available in some US jurisdictions and not others; whereas the complete defense of insanity is available throughout the US, but rarely used because it is more difficult to show.

English law

The Homicide Act 1957 sets out three partial defences that reduce murder to voluntary manslaughter: diminished responsibility, provocation and suicide pact. Sections 52-56 of The Coroners and Justice Act 2009 will amend, and update, the partial defences of diminished responsibility and provocation (which will be renamed 'loss of control'), however, these provisions are not yet in force and no date has been set for them to become so.

Diminished responsibility

This covers diminished mental responsibility for a crime falling short of the requirements of the complete defence of Insanity. Under s 2 Homicide Act 1957 there are three requirements for the defendant to raise the defence of diminished responsibility:

  • The defendant suffered from an abnormality of mind at the time of the killing. An abnormality of mind is ‘a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’.[3]
  • The abnormality was caused by one of the causes specified by the Act: a condition of arrested or retarded development of mind, any inherent cause or a disease or injury.
  • The abnormality substantially impaired the defendant’s mental responsibility for the killing. Substantial means the lack of control must simply be ‘more than trivial’.[4]

Under s2(2) of the Act it is for the defendant to prove he suffered from such a condition on the balance of probabilities.


Provocation was originally a common law defense to murder, but it was reformed by s3 Homicide Act 1957. There are two limbs to the defence, first the defendant must have actually been provoked, and second the provocation must be such as would have made the reasonable man act as the defendant did. Provocation can come from someone other than the victim[5] and be aimed at someone other than the accused.[6] Further the defense is not defeated by the fact that the defendant induced the provocation.[7]

  • Subjective limb: provocation in fact: It is a question of fact for the jury whether the defendant was in fact provoked. The loss of control must be sudden and temporary.[8] However, it can be the result of slow burn with a relatively minor ‘final straw’.
  • Objective limb: the reasonable man test: The provocation must be enough to make a reasonable man do as the defendant did. The reasonable man has the same sex and age as the defendant and such characteristics as affect the gravity of the provocation to the defendant, but characteristics irrelevant to the provocation such as unrelated mental disorders are not given to the reasonable man.[9] Finally, the reasonable man always has reasonable powers of self control [10] and is never intoxicated.[11]

Suicide pacts

S4(1) Homicide Act 1957 introduced the defence of suicide pact in England and Wales. Parliament's intention was to show some compassion for those who had been involved in a suicide pact but failed to die. S4(3) defines a suicide pact as ‘a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life’. The accused must have had a "settled intention of dying in pursuance of the pact" to avoid his entering into a supposed pact with the real intention of committing murder.


Another form of voluntary manslaughter is infanticide. This offense was created by statute in some countries during the 20th century. Generally, a conviction of infanticide will be made where the court is satisfied that a mother killed her newborn child while the balance of her mind was disturbed as a result of childbirth; for instance, in cases of post-natal depression. It is a form of manslaughter, and carries the same range of sentences as a manslaughter conviction. While infanticide is a separate offense from murder, and not a reductive defense to murder (such as the defenses listed below), in practice it works in much the same way as a reductive defense.

Involuntary manslaughter

Involuntary manslaughter is the unlawful killing of a human being without malice aforethought. It is distinguished from voluntary manslaughter by the absence of intention. It is normally divided into two categories; constructive manslaughter and criminally negligent manslaughter.

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 runs a red light in their 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[12]). 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.

United States law

In the United States, misdemeanor manslaughter is a lesser version of felony murder, and covers a person who causes the death of another while committing a misdemeanor – that is, a violation of law which doesn't rise to the level of a felony. This may automatically lead to a conviction for the homicide, if the misdemeanor involved a law designed to protect human life. Many violations of safety laws are infractions, which means a person can be convicted regardless of mens rea.

English law

Constructive manslaughter in English Law is committing an unlawful dangerous act which causes death. The associated doctrine of constructive murder, under which killing in the course of committing a felony led to a charge of murder, was abolished by the Homicide Act 1957.

There are three requirements for constructive manslaughter:

  • The defendant must do an unlawful act. This must be a criminal, not civil, offence[13] and must involve mens rea of intention or recklessness. Crimes involving negligence or omission will not suffice.[14]
  • The act must be dangerous. Whether the act is dangerous is objectively judged from the point of view of a sober and reasonable person present at the scene who witnessed the act.[15] The defendant need not be aware the act is dangerous[16] and the act need not be directed at the victim.[17]
  • The act must cause the death of the victim.

Criminally negligent manslaughter

Criminally negligent manslaughter is variously referred to as criminally negligent homicide in the United States, 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. A related concept is that of willful blindness, which is where a defendant intentionally puts himself in a position where he will be unaware of facts which would render him 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).

United States law

In jurisdictions such as Pennsylvania, if a person is so reckless as to "manifest extreme indifference to human life", the defendant may be guilty of aggravated assault as well as of involuntary manslaughter.[18]

In many jurisdictions such as California, malice may be found if gross negligence amounts to willful or depraved indifference to human life. In such a case, the wrongdoer may be guilty of second degree murder.[citation needed]

English law

In English law, gross negligence is the test for manslaughter. The crime was defined in R v Bateman as 'to show such disregard for life and the safety of others as to amount to a crime against the state and conduct deserving of punishment.[19] In R v Adomako the House of Lords affirmed R v Bateman, and set out the five elements required for negligence:

  • A duty of care owed by the defendant to the victim.
  • A breach of that duty.
  • A risk that the defendant's conduct could cause death.[20]
  • Evidence that the breach of duty caused the victim's death.
  • The defendant fell so far below the standards of the reasonable man in that situation that he should be labelled grossly negligent and deserving of criminal punishment.

It is for the jury to decide what constitutes 'grossly negligent behaviour'.

Vehicular or intoxication manslaughter

Vehicular manslaughter is a class C felony which holds people liable for any death which occurs because of criminal negligence, or a violation of traffic safety laws. A common use of the vehicular manslaughter laws involves prosecution for a death caused by driving under the influence (determined by excessive blood alcohol content levels set by individual U.S. states), although an independent infraction (such as driving with a suspended driver's license), or negligence, is usually also required.[21][22]

In Wisconsin, a person who causes death with any type of motor vehicle while legally intoxicated may be liable and charged with homicide by intoxicated use of a motor vehicle. Culpability lies with the perpetrator. In 2003 the maximum prison term for conviction on that charge was reduced from 40 years to 15 years imprisonment. The length of sentence is now equivalent to a charge and conviction in Wisconsin of second-degree reckless homicide.[23] In Wisconsin, as in most states, vehicular homicide occurs when the act is not perpetrated during a felony, because driving while under the influence is not a felony.

In some U.S. states, such as Texas, intoxication manslaughter is a distinctly defined offence. A person commits intoxication manslaughter if he, or she, operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride while intoxicated and, by reason of that intoxication, causes the death of another by accident or mistake.[24]

Intoxication manslaughter, vehicular manslaughter and other similar offences require a lesser mens rea than other manslaughter offences. Furthermore, the fact that the defendant is entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance, is no defence.[25] For example, in Texas, to prove intoxication manslaughter, it is not necessary to prove the person was negligent in causing the death of another, nor that they unlawfully used the substance that intoxicated them, but only that they were intoxicated, and operated a motor vehicle, and someone died as a result. The same rule of law applies in New York for vehicular manslaughter in the second degree.[26]

Assisted suicide

In some U.S. states, assisted suicide is punishable as a second degree of manslaughter.[27]

See also


  1. ^ Ehrenberg, Victor. From Solon to Socrates. London & New York: Routledge, 2011. p. 46.
  2. ^ See, e.g., Manslaughter in the first degree, N.Y. State Penal Law section 125.20, found at N.Y. State Legislative web site (search for Penal Law § 125.20).
  3. ^ Lord Parker CJ in R v Byrne [1960] 2 QB 396
  4. ^ R v Lloyd [1967] 1 Q.B. 175 at 177
  5. ^ R v Davies [1975] QB 691
  6. ^ R v Pearson [1992] Crim LR 193
  7. ^ Edwards v R [1973] AC 648
  8. ^ R v Duffy [1946] 1 All ER 932n
  9. ^ A-G for Jersey v Holley [2005] UKPC 23, as affirmed in R v James and Karimi [2006] EWCA Crim 14
  10. ^ R v Lesbini [1914] 3 KB 1116
  11. ^ R v Newell (1980) 71 Cr App R 331
  12. ^ [1977] AC 500
  13. ^ R v Franklin (1883) 15 Cox CC 163
  14. ^ Andrews v DPP [1937] AC 576, R v Lowe [1973] QB 702
  15. ^ R v Church [1966] 1 QB 59, R v Dawson (1985) 81 Cr App R 150
  16. ^ DPP v Newbury [1977] AC 500
  17. ^ AG’s Reference (No. 3 of 1994) [1997] 3 WLR 421
  18. ^ 18 Pa.C.S.A. § 2702
  19. ^ R v Bateman (1925) 19 Cr App R 8
  20. ^ R v Singh (Gurphal) [1999] Crim LR 582
  21. ^ See, e.g., Vehicular Manslaughter in the first degree, N.Y. State Penal Law section 125.13 found at N.Y. State Legislative web site (search for Penal Law § 125.13).
  22. ^ Cf. Vehicular Manslaughter, Cal. Pen. Code § 192(c)(1) & (2) found at (search for 192.).
  23. ^ Wisconsin Legislative Reference Bureau.
  24. ^ Tex. Penal Code § 49.08.
  25. ^ TEX. PEN. CODE ANN. § 49.10; see also Nelson v. State, 149 S.W.3d 206, 211 (Tex. App.-Fort Worth 2004, no pet.).
  26. ^ See, Vehicular Manslaughter in the second degree, N.Y. State Penal Law section 125.12 found at N.Y. State Legislative web site (search for Penal Law § 125.12).
  27. ^ See, e.g., Manslaughter in the second degree, N.Y. State Penal Law section 125.15 found at N.Y. State Legislative web site (search for Penal Law § 125.15).

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