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Murder, as defined in common law countries, is the unlawful killing of another human being with intent (or malice aforethought), and generally this state of mind distinguishes murder from other forms of unlawful homicide (such as manslaughter). As the loss of a human being inflicts enormous grief upon the individuals close to the victim, as well as the fact that the commission of a murder deprives the victim of their worldly existence, most societies both present and in antiquity have considered it a most serious crime worthy of the harshest of punishment. Typically a convicted murder suspect is given a life sentence or even the death penalty for such an act. A person who commits murder is called a murderer ;^[1] the term murderess, meaning a woman who murders, has largely fallen into disuse.^[2]^{[dubious – discuss]}

Legal analysis of murder

William Blackstone (citing Edward Coke), in his Commentaries on the Laws of England set out the common law definition of murder as

when a person, of sound memory and discretion, unlawfully killeth any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.^[3]

The first few 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":

Intent to kill,
Intent to inflict grievous bodily harm short of death,
Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
Intent to commit a dangerous felony (the "felony-murder" doctrine).

Under state of mind (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 are felonies.

Many jurisdictions divide murder by degrees. The most common divisions are between first and second degree murder. Generally second degree murder is common law murder with first degree being an aggravated form. The aggravating factors that distinguish first degree murder from second degree are first degree murder requires a specific intent to kill and premeditation and deliberation.

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."^{[citation needed]}

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.^[4]^[5]

Later editions such as Young's Literal Translation and the World English Bible have translated the Latin occides simply as murder rather than the alternatives of kill, assassinate, fall upon or slay.^{[citation needed]} Christian churches have some doctrinal differences about what forms of homicide are prohibited biblically, though all agree murder is.^{[citation needed]}

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.^[6] At common law, murder is considered to be malum in se, that is an act which is evil within itself. An act such as murder is wrong/evil by its very nature. And it is the very nature of the act which does not require any specific detailing or definition in the law to consider murder a crime.^[7]

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:

the act (actus reus) of killing a person
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).^[8]
In some cases, killing a person who is attempting to kill another can be classified as self-defence and thus, not murder.

Victim

All jurisdictions require that the victim be a natural person; that is a human being who was still alive at the time of being murdered. In other words, under the law, one cannot murder a corporation, a non-human animal, or any other non-human organism.

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. ^{[citation needed]}

California's notorious murder statute, Penal Code Section 187, was interpreted by the Supreme Court of California in 1994 as not requiring any proof of the viability of the fetus as a prerequisite to a murder conviction.^[9] This holding has two peculiar implications. The first is that a defendant in California can be convicted for murdering a fetus which the mother herself could legally abort under the framework established in Roe v. Wade (1973).^[9] The even stranger part of this holding, as pointed out by Justice Stanley Mosk in dissent, is that a nonviable fetus may be so small, and thus not externally visible, that a defendant can be convicted of intentionally murdering a person he did not even know existed.^[9]

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.^[10] This defense has two elements:

That the defendant had a serious mental illness, disease, or defect.
That the defendant's mental condition, at the time of the killing, rendered the perpetrator unable to determine right from wrong, or that what he or she was doing was wrong.

Under New York law, for example:

§ 40.15 Mental disease or defect. In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong.

Under the French Penal Code:

Article 122-1
A person is not criminally liable who, when the act was committed, was suffering from a psychological or neuropsychological disorder which destroyed his discernment or his ability to control his actions.

A person who, at the time he acted, was suffering from a psychological or neuropsychological disorder which reduced his discernment or impeded his ability to control his actions, remains punishable; however, the court shall take this into account when it decides the penalty and determines its regime.

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.^[11]

Post-partum depression

Some countries, such as Canada, Italy, Norway, Sweden, the United Kingdom, New Zealand and Australia, allow postpartum depression (also known as post-natal depression) as a defense against murder of a child by a mother, provided that a child is less than two years old (this may be the specific offense of infanticide rather than murder and include the effects of lactation and other aspects of post-natal care).^{[citation needed]}

In 2009, Texas state representative Jessica Farrar proposed similar rules for her home state.^[12]

Self-defense

Acting in self-defense or in defense of another person is generally accepted as legal justification for killing a person in situations that would otherwise have been murder. However, a self-defense killing might be considered manslaughter if the killer established control of the situation before the killing took place. In the case of self-defense it is called a justifiable homicide.^[13]

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^[14] constitutes reckless killing, while criminally negligent homicide is a grossly negligent killing.^[15]

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^[16] to obtain a manslaughter conviction, instead of murder, in the assassination of Mayor George Moscone and Supervisor Harvey Milk. ^{[citation needed]}

Year-and-a-day rule

In some common law jurisdictions, a defendant accused of murder is not guilty if the victim survives for longer than one year and one day after the attack. This reflects the likelihood that if the victim dies, other factors will have contributed to the cause of death, breaking the chain of causation. Subject to any statute of limitations, the accused could still be charged with an offence representing the seriousness of the initial assault.

With advances in modern medicine, most countries have abandoned a fixed time period and test causation on the facts of the case.

In the UK, due to medical advancements, the "year-and-a-day-rule" is no longer in use. However, if death occurs three years or more after the original attack then prosecution can take place only with the Attorney-General's approval.

In the United States, many jurisdictions have abolished the rule as well. Abolition of the rule has been accomplished by enactment of statutory criminal codes, which had the effect of displacing the common-law definitions of crimes and corresponding defenses. In 2001, the Supreme Court of the United States held that retroactive application of a state supreme court decision abolishing the year-and-a-day rule did not violate the Ex Post Facto Clause of Article I of the United States Constitution.^[17]

Epidemiology

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.^[18]

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,^[19] with rates in larger cities sometimes over 40 per 100,000.^[20]

Within the Western world, nearly 90% of all murders are committed by males, with males also being the victims of 74.6% of murders (according the United States Department of Justice).^{[citation needed]} There is a sharp peak in the age distribution of murderers between the ages of 17 and 30.^{[citation needed]} People become less likely to commit a murder as they age. Incidents of children and adolescents committing murders are also extremely rare.^{[citation needed]}

The following absolute murder counts per-country are not comparable because they are not adjusted by each country's total population. Nonetheless, they are included here for reference. There are an estimated 55,000 murders in Brazil every year,^[21] about 30,000 murders committed annually in Russia, approximately 16,000 ^[22] murders in Colombia in 2009 (the murder rate was 36 per 100,000 people, in 2005 murders went down to 15,000^[23]), approximately 20,000 murders each year in South Africa, approximately 17,000 murders in the United States (666,160 murders from 1960 to 1996),^[24] 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,^[25] approximately 1000 murders in France, approximately 580 murders per year in Canada,^[26] and approximately 200 murders in Chile.^[27] The murder rate in Port Moresby, Papua New Guinea is 23 times that of London.^[28] 32,719 murder cases were registered across India in 2007. Pakistan reported 9,631 murders.^[29]

Murder is the leading cause of death for African American males aged 15 – 34. In the year 2007 non-negligent homicides, there were 3,221 black victims and 3,587 white victims. While 2,905 of the black victims were killed by a black offender, 2,918 of the white victims were killed by white offenders. There were 566 white victims of black offenders and 245 black victims of white offenders.^[30]

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.^[31]

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,^[32] and notice that those rates went up sharply shortly after a moratorium on death sentences was effectively imposed in the late 1960s. This fact has been used to argue that capital punishment serves as a deterrent and, as such, it is morally justified. Capital punishment opponents frequently counter that the United States has much higher murder rates than Canada and most European Union countries, although all those countries have abolished the death penalty. Overall, the global pattern is too complex, and on average, the influence of both these factors may not be significant and could be more social, economic, and cultural.

The fraction of murders solved has decreased in the United States, from 90% in 1960 to 61% in 2007.^[33] Solved murder rates in major U.S. cities varied in 2007 from 36% in Boston, Massachusetts to 76% in San Jose, California.^[34] Major factors affecting the arrest rate include witness cooperation^[33] and the number of people assigned to investigate the case.^[34]

History

According to scholar Pieter Spierenburg murder rates per 100,000 in Europe have fallen over the centuries, from 35 per 100,000 in medieval times, to 20 in 1500 AD, 5 in 1700, to below two per 100,000 "where it has held steady, with minor fluctuations, for the past century."^[35] In the United States, murders rates have been higher and have fluxuated. They rose during the nineteenth century, dropped in the years following World War II, before rising again. The rate reached eleven per 100,000 in 1991 before falling to five per 100,000 in present times.^[35]

Country-specific murder 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.^[36] 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.

References

^ Definition of murderer in Merriam Webster's Online Dictionary (2009). Retrieved on 2009-05-17.
^ Usage note for -ess in The American Heritage Dictionary of the English Language: Fourth Edition (2000). Retrieved on 2009-05-17.
^ "Avalon Project - Blackstone's Commentaries on the Laws of England - Book the Fourth - Chapter the Fourteenth : Of Homicide". Avalon Project, Yale University. Retrieved 2009-05-11.
^ Vulgate Deuteronomy Ch27 V24
^ Parallel Hebrew Old Testament Deuteronomy Ch27 V24
^ Blackstone, Book 4, Chapter 14
^ A Dictionary of Modern Legal Usage By Bryan A. Garner, pg. 545.
^ Margaret Otlowski, Voluntary Euthanasia and the Common Law, Oxford University Press, 1997, pp. 175-177
^ ^a ^b ^c People v. Davis, 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50, 872 P.2d 591 (1994).
^ R. v. M'Naughten, get full cite.
^ "Code de la Santé Publique Chapitre III: Hospitalisation d'office Article L3213-1" (in French). Legifrance. 2002. Retrieved 2007-10-23., note: this text refer to the procedure of Involuntary commitment by the demand of the public authority, but the prefect systematically use that procedure whenever a man is discharged due to his dementia.
^ Proposed Texas House bill would recognize postpartum psychosis as a defense for moms who kill infants
^ The French Parliemant. "Article 122-5". French Criminal Law (in French). Legifrance. Retrieved 2007-11-01.
^ The French Parliemant. "Article 222-8". French Criminal Law. Legifrance. Retrieved 2007-11-01.
^ The French Parliemant. "Section II - Involuntary Offences Against Life". French Criminal Law. Legifrance. Retrieved 2007-11-01.
^ (the so-called "Twinkie defense").
^ Rogers v. Tennessee, 532 U.S. 451 (2001).
^ WHO: 1.6 million die in violence annually
^ FBI web site
^ Infoplease.com.
^ Brazil murder rate similar to war zone, data shows
^ 2009 Murders in Colombia (in spanish)
^ Colombia's Uribe wins second term
^ Twentieth Century Atlas - Homicide
^ Jamaica "murder capital of the world"
^ Canada's National Statistical Agency:Homicides
^ Crime Statistics
^ Fickling, David (2004-09-22). "Raskol gangs rule world's worst city". The Guardian. Retrieved 2007-01-09.
^ [1]
^ Ann L. Pastore; Kathleen Maguire (eds.). "Sourcebook of criminal justice statistics Online" (PDF) (31st ed.). Albany, New York: Bureau of Justice Statistics.
^ Harris, Anthony R. (2002). "Murder and medicine: the lethality of criminal assault 1960-1999" (fee required). Homicide studies. 6 (2): 128–166. doi:10.1177/1088767902006002003. Retrieved 2006-12-08. {{cite journal}}: Unknown parameter |coauthors= ignored (|author= suggested) (help); Unknown parameter |month= ignored (help)
^ Disaster Center web site
^ ^a ^b Why Fewer Murder Cases Get Solved These Days by Lewis Beale. 19 May 2009.
^ ^a ^b CS Monitor by Brian Whitley. Christian Science Monitor. 24 Dec 2008.
^ ^a ^b Spierenburg, Pieter, A History of Murder: Personal Violence in Europe from the Middle Ages to the Present, Polity, 2008. Refered to in [http://www.newyorker.com/arts/critics/atlarge/2009/11/09/091109crat_atlarge_lepore#ixzz0ePRpHvGz "Rap Sheet Why is American history so murderous?"] by Jill Lepore New Yorker, November 9, 2009
^ May Damages Be Recovered by a Non-Resident Alien for the Death of a Son? University of Pennsylvania Law Review and American Law Register, Vol. 57, No. 3, Volume 48 New Series (December 1908), pages 171-173 doi:10.2307/3313315

Bibliography

Lord Mustill on the Common Law concerning murder
Sir Edward Coke Co. Inst., Pt. III, ch.7, p. 50

External links

[1] Definition of murderer in Merriam Webster's Online Dictionary (2009). Retrieved on 2009-05-17.

[2] Usage note for -ess in The American Heritage Dictionary of the English Language: Fourth Edition (2000). Retrieved on 2009-05-17.

[3] "Avalon Project - Blackstone's Commentaries on the Laws of England - Book the Fourth - Chapter the Fourteenth : Of Homicide". Avalon Project, Yale University. Retrieved 2009-05-11.

[4] Vulgate Deuteronomy Ch27 V24

[5] Parallel Hebrew Old Testament Deuteronomy Ch27 V24

[6] Blackstone, Book 4, Chapter 14

[7] A Dictionary of Modern Legal Usage By Bryan A. Garner, pg. 545.

[google1-8] Margaret Otlowski, Voluntary Euthanasia and the Common Law, Oxford University Press, 1997, pp. 175-177

[davis-9] People v. Davis, 7 Cal. 4th 797, 30 Cal. Rptr. 2d 50, 872 P.2d 591 (1994).

[10] R. v. M'Naughten, get full cite.

[french_civil_law_on_mental_health-11] "Code de la Santé Publique Chapitre III: Hospitalisation d'office Article L3213-1" (in French). Legifrance. 2002. Retrieved 2007-10-23., note: this text refer to the procedure of Involuntary commitment by the demand of the public authority, but the prefect systematically use that procedure whenever a man is discharged due to his dementia.

[12] Proposed Texas House bill would recognize postpartum psychosis as a defense for moms who kill infants

[crim_liability-13] The French Parliemant. "Article 122-5". French Criminal Law (in French). Legifrance. Retrieved 2007-11-01.

[manslaughter_in_France-14] The French Parliemant. "Article 222-8". French Criminal Law. Legifrance. Retrieved 2007-11-01.

[invol_offfences-15] The French Parliemant. "Section II - Involuntary Offences Against Life". French Criminal Law. Legifrance. Retrieved 2007-11-01.

[16] (the so-called "Twinkie defense").

[17] Rogers v. Tennessee, 532 U.S. 451 (2001).

[18] WHO: 1.6 million die in violence annually

[19] FBI web site

[20] Infoplease.com.

[21] Brazil murder rate similar to war zone, data shows

[22] 2009 Murders in Colombia (in spanish)

[23] Colombia's Uribe wins second term

[24] Twentieth Century Atlas - Homicide

[25] Jamaica "murder capital of the world"

[26] Canada's National Statistical Agency:Homicides

[27] Crime Statistics

[28] Fickling, David (2004-09-22). "Raskol gangs rule world's worst city". The Guardian. Retrieved 2007-01-09.

[29] [1]

[30] Ann L. Pastore; Kathleen Maguire (eds.). "Sourcebook of criminal justice statistics Online" (PDF) (31st ed.). Albany, New York: Bureau of Justice Statistics.

[31] Harris, Anthony R. (2002). "Murder and medicine: the lethality of criminal assault 1960-1999" (fee required). Homicide studies. 6 (2): 128–166. doi:10.1177/1088767902006002003. Retrieved 2006-12-08. {{cite journal}}: Unknown parameter |coauthors= ignored (|author= suggested) (help); Unknown parameter |month= ignored (help)

[32] Disaster Center web site

[mccune-33] Why Fewer Murder Cases Get Solved These Days by Lewis Beale. 19 May 2009.

[monitor-34] CS Monitor by Brian Whitley. Christian Science Monitor. 24 Dec 2008.

[Spierenburg-35] Spierenburg, Pieter, A History of Murder: Personal Violence in Europe from the Middle Ages to the Present, Polity, 2008. Refered to in [http://www.newyorker.com/arts/critics/atlarge/2009/11/09/091109crat_atlarge_lepore#ixzz0ePRpHvGz "Rap Sheet Why is American history so murderous?"] by Jill Lepore New Yorker, November 9, 2009

[36] May Damages Be Recovered by a Non-Resident Alien for the Death of a Son? University of Pennsylvania Law Review and American Law Register, Vol. 57, No. 3, Volume 48 New Series (December 1908), pages 171-173 doi:10.2307/3313315

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