Today, we’ll be discussing manslaughter as an offence, types of manslaughter, it’s distinction from murder; national standards in Australia, Canada, England and the United States and manslaughter historical distinction from murder. Enjoy your reading:

What is Manslaughter?

Manslaughter is the killing of another person, but it’s distinct from the crime of murder. Sometimes the line between manslaughter and murder isn’t clear.

It is an unlawful killing that doesn’t involve malice aforethought-intent to seriously harm or kill or an extreme, reckless disregard for life. The absence of malice aforethought means that manslaughter involves less moral blame than either first-or second-degree murder. (But plenty argue that some instances of felony murder, a form of first-degree murder, involves less blameworthiness than some instances of manslaughter.) Thus, while it is a serious crime, the punishment for it is generally less than that of murder.

The two main variations of manslaughter are usually referred to as voluntary and involuntary manslaughter.

Voluntary Manslaughter

Often called a “heat of passion” crime, voluntary manslaughter occurs when a person:

  1. Is strongly provoked (under circumstances that could similarly provoke a reasonable person) and;
  2. Kills in the heat of passion aroused by that provocation.

For “heat of passion” to exist, the person must not have had sufficient time to “cool off” from the provocation. That the killing isn’t considered first-or second-degree murder is a concession to human weakness. Killers who act in the heat of passion may kill intentionally, but the emotional context is a mitigating factor that reduces their moral blameworthiness.

The classic example of voluntary manslaughter involves a husband who comes home unexpectedly to find his wife committing adultery. If the sight of the after provokes the husband into such a heat of passion that he kills the paramour right then and there, judge or jury might very well consider the killing to be voluntary manslaughter.

Involuntary Manslaughter

Involuntary manslaughter often refers to unintentional homicide from criminally negligent or reckless conduct. It can also refer to an unintentional killing through the commission of a crime other than felony.

The subtleties between murder and manslaughter reach their peak with involuntary manslaughter, particularly because an accidental killing through extreme can constitute second-degree murder.

State of Mind

Legislatures and courts have developed an entire body relating to the mental state difference between unintentional second-degree murder and involuntary manslaughter. The determination basically boils down to how morally blameworthy the fact finder considers the defendant.

For example, suppose that Rosencrantz is driving a car and runs over and kills Bob. Rosencrantz might be:

  1. Not guilty of a crime at all. However, if Bob’s family sues Rosencrantz in a civil case, Rosencrantz might have to pay damages to Bob’s heirs if Rosencrantz was negligent-that is, if Rosencrantz failed to use ordinary care.
  2. Convicted of involuntary manslaughter. If Rosencrantz acted recklessly-meaning that he was more than ordinarily negligent, by driving under the influence of alcohol, for example-he could be convicted of involuntary manslaughter. (many states have separate statutes to deal with vehicular manslaughter.)
  3. Convicted of second-degree murder. If Rosencrantz’s behavior demonstrated such an extreme disregard for human life that a judge or jury considers it malice aforethought, second-degree murder would be the crime. For example, if Rosencrantz not only kills Bob as a result of drunk driving but does so after his license had been taken away for several previous drunk driving convictions, a judge or jury might convict him of second-degree murder.

Murder Vs. Manslaughter: Case Examples

Let’s look at some celebrated cases to illustrate the difference between murder and manslaughter.

“Provoked” killing

Facts: Fast Boyle is walking along a busy street. clay bumps into Boyle and continues walking without saying, “Sorry”. Angered by Clay’s rudeness, Boyle immediately pulls out a gun and kills Clay.

Verdict; Boyle could probably be convicted of second-degree murder, because he killed Clay intentionally. a judge or jury is unlikely to conclude that the killing was premeditated, which would have elevated the shooting to first-degree murder. On the other hand, this wasn’t the kind of heat-of-passion killing that equals voluntary manslaughter. While Boyle might have been provoked in some sense, the circumstances weren’t so extreme to cause a reasonable person to lose control.

Intentional Act; Accidental Result

Facts: Standing next to each other in a bookstore a few feet away from the top of a flight of stairs, Marks and Spencer argue over the proper interpretation of free will in Hobbe’s philosophy. The argument becomes increasingly animated and culminates when Spencer points a finger at marks pushes Spencer backward. The push is hard enough to cause Spencer to fall down the stairs. Spencer dies from the resulting injuries.

Verdict: Marks would probably be guilty of involuntary manslaughter. It was criminally negligent of him to shove a person standing near the top of a stairway. But the circumstances don’t seem to suggest that his behavior was so reckless as to demonstrate extreme indifference to human life, which would have elevated the crime to second-degree murder. If the evidence had indicated that Marks intended to kill Spencer with the push, a judge or jury would have had to determine whether the extent of the provocation made the homicide voluntary manslaughter.

“Cooling-Off” period

Facts: Lew Manion comes home to find that his wife Lee has been badly beaten and sexually abused. Manion takes Lee to the hospital. On the way, Lee tells Manion that her attacker was Barnett, the owner of a travern that she and Manion occasionally visit. After driving Lee home from the hospital about four hours later, Manion goes to a gun shop and buys a gun. Manion then goes to the travern and shoot and kills Bernett.

Verdict: Manion could be convicted of first-degree murder, because the time for reflection and his purchase of the gun indicates premeditation and deliberation. Voluntary manslaughter is a somewhat less likely alternative because a judge or jury could find that the heat of passion had cooled, even though Manion remained angry at the time he acted.

What is the Punishment for Manslaughter?

Manslaughter convictions often result in prison sentence. As an example, in a 2004 New York decision, an Appeal Court upheld the following sentence in a driving-while intoxicated case where there was a collision and the defendant’s passenger died as result: three to nine years for second-degree manslaughter, concurrent with two to six years for second-degree vehicular manslaughter. (People V. Yanus, 13 A.D. 3d 804 (2004).)

Note: the sentence in any case depends not only on the jurisdiction’s laws but also on the court’s evaluation of the circumstances and the defendant.

National Standards

In Australia, specifically New South Wales, manslaughter is referred to, however not defined, in the Crimes Act 1900 (NSW).
Manslaughter exists in two forms in New South Wales:

  1. Voluntary, and;
  2. Involuntary manslaughter.

In New South Wales, in cases of voluntary manslaughter, both the actus reus (literally guilty act) and mens rea (literally guilty mind) for murder are proven but the defendant has a partial defence, such as extreme provocation or diminished responsibility.
In cases of involuntary manslaughter, the actus reus for murder is present but there is insufficient mens rea to establish such a charge.

There are two categories of involuntary manslaughter at common law: manslaughter by unlawful and dangerous act and manslaughter by criminal negligence. 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. This case determined that the act that caused the death must breach the criminal law and the act must carry an appreciable risk of serious injury (actus reus).

However, 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 realized or recognized that the act carried an appreciable risk of serious injury. Manslaughter by criminal negligence, on the other hand, finds its authority in the Victorian case of Nydam v R, confirmed by the High court of Australia in R v Lavender and Burns v R. In Nydam v R, the Court described the offence at 445 in the following terms:

In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that doing of the act merited criminal punishment.”


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:

  1. Unlawful act, and;
  2. 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.


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 decided whether the defendant is guilty or not guilty of either murder or manslaughter. The offence 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 themselve of the three statutory defenses described in the Homicide Act 1957 (provocation, diminished responsibility, and a 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.

United States

Manslaughter is a crime in the United States. Definitions can vary among jurisdictions, but the U.S. follows the general principle that it involves causing the death of another person in a manner less culpable than murder, and observes the distinction between voluntary and involuntary manslaughte!r.

Civil Law

Some civil law jurisdictions, such as the French Code, use “murder’ or “involuntary homicide’ to cover the crime of manslaughter, and reserve “assassination” for the crime of premeditated murder.

Historical distinction from murder

A legal distinction between intentional and unintentional homicide was introduced in Athenian law in 409 BC, when the legal code of Draco indicated that intentional homicide (hekousios phonos or phonos ek pronoias) was punishable by death. The language is ambiguous as to unintentional homicide (akousios phonos), but it may have been punishable by exile.

However, academic David D Philips says that these categories “do not correspond to the common-law categories of murder and manslaughter either in their original significance or in their present definitions”, because under Athenian law intentional homicide would include both murder and voluntary manslaughter.

Anglo-Saxon law recognized particular degrees of homicide, with the worst being forsteall (killing by ambush). Murdra was a separate type of aggravated (secrete) homicide under Anglo-Saxon law; William the conqueror defined it narrowly as a fine that would be charged on a hundred following the slaying of a foreigner (originally a Norman, but intermarriage would end the distinction between Normans and English by the 13th century). By 1348, the associated between murdrum and malice aforethought emerged.

Manslaughter” as a general term for homicide was in use in medieval England by the late 1200s, during which time a distinction was forming between homicide committed in necessary self-defense (pardoned without culpability) and homicide committed by accident (pardoned but with moral blame). From 1390, homicide in necessary self-defense or by misadventure became “pardons of course”, meaning that the Chancery would issue them by default.

Homicide in necessary self-defense would later be acquitted, rather than pardoned. The use of “manslaughter” to cover homicides other than murder emerged by 1547, in a statute. Edward Coke confirms this distinction in the Third Part of the Institutes of the Laws of England, which remains “the authoritative starting point for any examination of the law of homicide” in the United kingdom and other common law countries.

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