Negligent Death and Manslaughter

Frances P Bernat. Handbook of Death and Dying. Editor: Clifton D Bryant. Volume 2. Thousand Oaks, CA: Sage Reference, 2003.

Death is broadly categorized as having occurred by natural causes, accident, homicide, or suicide. During the year 2000, the most common cause of death recorded in the United States was disease (48 per 100,000 population), followed by accident or unintentional injury (34 per 100,000), suicide (10 per 100,000), homicide (6 per 100,000), and legal intervention (2 per 100,000) (National Center for Health Statistics 2001). These broad categories determine whether the state should engage in further investigation because this would pertain to establishing the cause of death. Further state action may be warranted when a person’s death is the result of untimely and unnatural causes at the hands of another.

In common discourse, the various types of unlawful deaths are not distinguished. When someone causes the untimely death of another person, the typical reaction is that the person was “murdered.” However, various legal categories of homicide exist, ranging from murder to manslaughter and from criminally negligent homicide to accidental death. The following discussion is directed to these categories of death.

Homicide Statistics

Unfortunately, official crime statistics do not distinguish among the various types of criminal homicides. Data collected by the Federal Bureau of Investigation, along with supplemental information on homicides, are presented in annual Uniform Crime Reports (UCR). The UCR provides homicide data in aggregate form, collapsing murder, manslaughter, and negligent homicides into a single crime category. The supplemental homicide data, however, include information on the offender, victim, location, and circumstances surrounding the offense.

During the 1950s and early 1960s, the official homicide rate was approximately 5 per 100,000 population (U.S. Department of Justice 2002b). Then, during the mid-1960s, the rate began to increase and more than doubled by 1980. Between the 1970s and early 1990s, the rate fluctuated ranging from 7.9 per 100,000 in both 1970 and 1984 to 9.8 for 1974, 1981, and 1991. The rate peaked at 10.2 homicides per 100,000 in 1980. Since 1991, however, the homicide rate has decreased to 5.5 per 100,000 in 2000 (U.S. Department of Justice 2002a, 2002b).

Homicide rates are highest in large cities and are higher in the southern portion of the United States. Most homicides occur in cities with populations of more than 100,000 people; one-fourth of all homicides occur in cities with populations of over 1 million people (U.S. Department of Justice 2002b). In 1999, the District of Columbia reported the highest homicide rate (46 homicides per 100,000 population), followed by Louisiana (11); New Mexico (10); Nevada, Maryland, and Alaska (9); Arizona, Alabama, Illinois, Mississippi, and Georgia (8); and North Carolina, Tennessee, Michigan, Oklahoma, South Carolina, Missouri, and Indiana (7) (U.S. Department of Justice 2002c).

These data reveal some interesting facts. Between 1976 and 1999, men were more likely to be both offenders (88%%) and victims (76%). In 1999, males were 3.2 times more likely than females to be homicide victims, and males are 9 times more likely to be homicide offenders. Males committed 64% of intimate killings, 70% of family killings, 61% of infanticides, 85% of eldercides, 93% of felony murders, 93% of sex-related murders, 96% of drug-related homicides, 99% of gang-related homicides, 85% of argument-based homicides, 92% of workplace homicides, 90% of gun-related killings, 80% of arson-related homicides, 64% of poison-related killings, and 94% of multiple-victim killings. Moreover, men are more likely to be victims of gang-related (94%), drug-related (90%), argument-based (78%), workplace-based (78%), and felony murder (78%) homicides. Women, on the other hand, are more likely than men to be victims of intimate killings (62% of such killings) and to be victims of sex-related homicides (81% of such killings) (U.S. Department of Justice 2002b).

Many homicide victims and offenders are young black males. In 1999, blacks were 6 times more likely than whites to be a homicide victim and 7 times more likely than whites to be an offender (U.S. Department of Justice 2002b). Black males between 18 and 24 years of age have the highest homicide victimization and offending rates. Young black male victims had a peak victimization rate of 176 per 100,000 population in 1994. In comparison, in 1991, the peak homicide victimization rate was 18 per 100,000 for white males. Black males between the ages 18 and 24 had a peak homicide offending rate of 348 per 100,000 in 1993; in 1991, the peak rate for white males was 33 per 100,000.

Adults 65 years of age and older and young children under the age of 14 make up a small proportion of all victimizations. In 1999, elderly victims accounted for about 5% of homicides, with slightly more elder male than female victims. Elderly victims are likely to be killed during the commission of a felony. Since 1980, homicides committed against children under age 5 increased slightly, but the rate has been declining in recent years. Parents were responsible for more than one-half of homicides committed against children under age 5, with slightly more male offenders than female, and twice as many black child victims as white (U.S. Department of Justice 2002b).

Beginning in the 1980s, homicide victimization and offending rates for teenagers and young adults between the ages of 14 and 24 rose dramatically, whereas the rates for other age-specific groups either remained constant or declined. Since the early 1990s, victimization and offending rates for all racial and gender aged groups have declined (U.S. Department of Justice 2002b).

Common Law Relating to Homicide

Prior to the 12th century, all deaths in England were viewed as a civil wrong. If an individual caused the death of another, the matter was considered a private harm in need of settlement to be agreed on between the victim’s family and the offender. As with other private actions, the victim’s family sought compensation in an amount roughly equivalent to the value of the person lost. This system was not without its problems, however.

With the advent of the public law system that evolved between the 12th and 16th centuries, the Crown began to treat harms as wrongs committed against the Crown and retribution was owed to the King who was designated as the aggrieved party (Snowden 1997). The community benefit of this public law system was that people were deterred from exacting excessive payments that precipitated blood feuds or resulted in other forms of social unrest. The benefit to the Crown was that the King’s private coffers grew. The developing legal system distinguished between public harms or offenses for which the Crown would exact punishment and private harms or torts for which private parties would litigate their damages.

Early common law did not distinguish among the various types of homicide; that is, homicide was categorized as being either felonious or nonfelonious killing. Nonfelonious killing included those committed in self-defense or would otherwise excuse the offender.

Felonious homicides were neither justified nor excused, and the Crown’s punishment usually required that the offender be executed. As the common law developed and capital punishment grew into disfavor, laws intended to distinguish among various types of felonious homicides were enacted. Felonious homicides committed with malice (wicked or intentional) were deemed to be murder and punishable by death (“Intent as an Element” 1991). Felonious homicides committed without malice were defined as manslaughter, a less serious offense than murder and subject to a general pardon by the Crown. Manslaughter offenders usually received 1 year of imprisonment and had their thumbs branded (Hobson 1996).

Under the common law, manslaughter distinguished killings for which the accused could be exonerated, such as those committed in self-defense, from those in which the person acted under the influence of intentional malice. Mitigation acknowledged that the offender held some level of criminal responsibility but held less culpability than for the crime of murder. By the 17th century, manslaughter was distinguished further as the categories of voluntary and involuntary manslaughter evolved. If the mitigated crime occurred with intent but on adequate provocation, the offender was held accountable for voluntary manslaughter. If the mitigated crime was without intent, then the offender was charged with involuntary manslaughter (“Intent as an Element” 1991).

Under the common law, adequate provocation was considered in the following situations: mutual combat, imperfect self-defense, sudden quarrel, an illegal arrest, and killing in the “heat of passion” (“State v. Shane” 1993). Social norms in feudal England allowed a man to engage in combat for the purpose of defending his honor. If such combat was in response to an altercation that the victim initiated but the amount of force used was unreasonable or excessive to repel the victim’s deadly assault on him, then the accused was guilty of voluntary manslaughter. In heat-of-passion killings under common law, the victim initiated the altercation and provoked the homicidal attack. Such provocation would have been so great as to arouse the offender’s passions to such an extent that he killed the provocateur.

A traditional heat-of-passion situation involved a husband finding his wife in an act of adultery. It was considered acceptable that a man of average sensibility would be prompted to kill after observing an adulterous liaison (Burns 1995; Daly and Wilson 1988; “Intent as an Element” 1991; Pillsbury 1998). Although the crime of manslaughter was based on the assumption that reasonable men can be provoked to the point of killing because they lose self-control in specific situations (Finkel 1995), wives could not claim heat-of-passion mitigation. Rather, if the wife killed an adulterous mate she was convicted of murder.

Homicides In the United States

The common law’s definition of homicide was codified into state statute with criminal homicide categorized as murder, voluntary manslaughter, or involuntary manslaughter. In some states, recent modifications to the law have created homicide grades such as criminally negligent homicide or vehicular homicide. These categories denote the degree of crime severity; murder represents the most serious form with voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide considered to be a lesser offense.

Public discourse surrounding such forms of socially constructed killings continues as violent forms of death receive a great deal of attention from the public, elected officials, and the research community. Recent research findings report a high relationship between domestic violence and joblessness and family dysfunction (e.g., Almgren, Guest, and Immerwahr 1998). According to an even more recent report, men who kill their children and then commit suicide employ lethal means such as handguns, whereas women who kill their children and then commit suicide are likely to resort to drowning or poisoning (Collins et al. 2001).

Public understanding or sympathy for offenders and their victims often distorts the principles of homicide law. New Mexico’s statutory language delineating the distinctions between the various forms of homicide may cause confusion, especially when unintentional death occurs (Romero 1990). If a death occurs when a motor vehicle is driven by one who is under the influence of alcohol or drugs, the offender can be prosecuted under the Homicide by Vehicle offense, a Class 3 felony (New Mexico Statutes Annotated [NMSA] Section 66-8-101). However, the accused can also be prosecuted under the Negligent Homicide statute, a Class 4 felony (NMSA Section 30-2-3). Thus it is important that the purpose of the criminal homicide statutes be thoroughly understood when death is thought to be nonaccidental, thereby raising the prospect of criminal penalty.

Heat-of-Passion Killings and Family Violence

The adultery heat-of-passion rule was first articulated in 1682 when a man killed his wife’s paramour. According to Burns (1995), the court that allowed crimes of murder to be mitigated to manslaughter rule if based on adultery stated,

John Manning was indicted for murder, for the killing of a man. And upon not guilty pleaded, the jury at the Assizes find that the said Manning found the person killed committing adultery with his wife in the very act, and flung a jointed stool at him, and with the same killed him and resolved by the whole Court, that this was but manslaughter, and Manning had his clergy at the Bar, and was burned in the hand; and this Court directed the execution to burn him gently, because there could not be greater provocation than this. (P. 41)The court appeared to be sympathetic to Manning. It is not clear, however, if the court viewed Manning’s conduct as manslaughter because he lacked malice when the stool was thrown or if the court was articulating a new provocation category for manslaughter. Nonetheless, this case established the heat-of-passion adultery precedent that mitigated murder to manslaughter. By the 19th century, the rule was applied in situations in which the husband also killed the wife (Burns 1995).

In the United States, various states have incorporated the adultery-based heat-of-passion rule into their murder/manslaughter statutes. As under the common law of England, the heat-of-passion rule provided that husbands who discovered the wife in the act of adultery could have the offense mitigated from murder to manslaughter. The mitigation principle did not apply to women, lovers, or fianc├ęs, because a husband’s homicidal anger was viewed as “appropriate” and morally distinguished him from others who killed in a fit of anger (Miller 2001). The doctrine was based on several archaic legal presumptions: that women are the legal property of their husbands, that men have the right to protect the chastity of wives, that lawful heirs may not inherit their wealth if women become impregnated through adulterous liaisons, and that men have the right to protect their honor (Burns 1995; Miller 2001).

Initially, the adultery principle required a man to actually discover his wife in the act of adultery. At common law, mitigation would not be appropriate on verbal provocation alone, words did not provide a legal basis for mitigating murder to manslaughter. By the late 20th century, however, the heat-of-passion mitigation principle had been extended to situations in which a man killed the wife who taunted him with information pertaining to an affair, and this rule has been applied in cases where men, although legally separated from their spouse, observed their wives with other men (Miller 2001; “State v. Shane” 1993). It is still generally accepted, however, that a verbal announcement of an affair is not adequate provocation to mitigate murder to a lesser offense (“Intent as an Element” 1991; “State v. Shane” 1993).

Heat of passion as mitigation relies on the view that men can be quickly roused to a homicidal rage. The social context of manslaughter is thus laden with ideology that is accepting of violent behavior when such behavior is considered to be part of male socialization (Jurik and Winn 1990). More recently, courts have invoked the heat-of-passion mitigation rule when gay men were killed for committing a nonviolent homosexual advance. As noted above, verbal provocation is generally not accepted as sufficient to justify killing, but such provocation has been arguably found to be legally sufficient in response to nonviolent homosexual advances because in general men view such advances to be a violation of their “sexual privacy” (Dressler 1995).

However, some analysts argue that this perspective is not legitimate because it normalizes homophobia, having the appearance of endorsing violence against gays and lesbians through blaming the victim (Mison 1992). A nonviolent sexual advance provocation rule is not accepted when women kill their nonviolent sexual aggressors. Consequently, a nonviolent sexual advance mitigation rule favors heterosexual males at the expense of women and homosexuals (Burns 1995; Mison 1992).

The event that provokes one to kill has historically presumed a situation that would enrage a “reasonable man.” Although modern statutes use gender neutral language, the legal application of heat-of-passion mitigation rules are not adequate to account for situations in which women kill their domestic partner (Miller 2001). Jurik and Winn (1990) found that men who kill during a domestic violence episode usually instigate the violent encounter. Women who kill their partner, however, do so as an act of self-preservation. Thus Ewing (1990) argues that women who take the life of their violent domestic partners are acting under circumstances of “psychological self-defense,” a defense employed when a female is charged with killing her partner after prolonged periods of abuse, fear, and isolation.

However, no state currently recognizes the psychological self-defense plea, forcing women who kill to prove self-defense if they killed during a battering episode and in response to an immediate or imminent deadly threat. In some states, their only option was to plead insanity at the time the homicide occurred. For these reasons, many women are convicted of murder. To resolve such gender inequity, the State of California abolished the mitigated to manslaughter statute (California Penal Code Section 191). The State of Arizona recognizes victims of domestic violence, allowing them to claim self-defense from the “perspective of a reasonable person who has been a victim of those past acts of domestic violence” (Arizona Revised Statutes Section 13-415).

Changing Definitions: Negligence, Accident, and Liability Issues in Child Death

In early English society, child murder was condemned but few infanticide cases were prosecuted. During the 17th and 18th centuries, the Crown prosecuted lewd women for murder if they killed or concealed the death of their illegitimate children (Finkel, Burke, and Chavez 2000). By the mid-19th century, under the legal concept negligence, mothers, as primary caregivers, were held accountable for harm to their children if they failed to provide reasonable care. Mothers were expected to provide for the overall health and well-being of their children, who were defined as innocents in need of moral and physical care and protection (Burnham 1996). Injuries that resulted from an “accident,” however, were considered a matter of family tragedy rather than within the purview of the criminal law.

At present, infanticide cases are viewed more harshly (Finkel et al. 2000). Events once defined as personal family tragedy are currently prosecuted as forms of murder and manslaughter. Children who die as a result of parental failure to provide adequate medical care and parents who refuse medical care for an ill child on religious grounds are now held liable (Schneider 1999). Moreover, parents who fail to take adequate precautions to protect their children from harm that includes accidental death also are legally liable. For example, parents are charged with negligent homicide if children are not properly buckled into car restraints and death resulting from injuries occurs (“Negligent Homicide Prosecutions” 1993). Similarly, accidents that occur in the home are now perceived as harm that affects family well-being and the welfare of the community (Burnham 1996; Osuntogun and Olundimu 1991).

Processing cases in which children are injured and killed, however, poses judicial problems. Although a community hue and cry may call on authorities to impose punishment for suspected child neglect, criminal culpability may be difficult to establish; this is especially the case when a child death has occurred. Thus suspected child homicide victimizations are not prosecuted if it is believed a conviction may more readily be achieved by charging child abuse (Unnithan 1994). It is noteworthy, however, that hundreds of child abuse homicides may go undetected simply because coroners and medical examiners certify SIDS (sudden infant death syndrome) as the immediate cause of death, a category used for unexplained infant deaths (Lundstrom and Sharpe 1991).

Criminal culpability and victim provocation represent concepts that may complicate the intended meanings attached to child killings; often, such deaths are viewed as a tragedy. And if a child dies suddenly, relatives and others may not view the offenders’ behavior as predatory or cold-blooded (May 1999). Application of the manslaughter statute to infanticide is difficult simply because of provocation rules (Finkel et al. 2000).

Negligent Homicide and Manslaughter: Emergent Contexts of Liability

In many jurisdictions, involuntary and negligent manslaughter is established on common-law principles concerning manslaughter and criminal liability (e.g., in Alabama, Alaska, California, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Minnesota, Mississippi, Missouri, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Virginia, Washington, and West Virginia). In other state jurisdictions, the common-law manslaughter principle has been modified or changed by statute to create negligent homicide laws (e.g., in Arizona, Colorado, Connecticut, Delaware, Hawaii, Michigan, New Hampshire, New York, North Dakota, Ohio, Oregon, Tennessee, Texas, and Utah).

Negligent manslaughter requires proof of negligent conduct in situations in which reasonably prudent persons would not have proceeded under similar circumstances (“The Anatomy of a Negligent Homicide Conviction” 1990), whereas involuntary manslaughter requires proof of recklessness or negligence. Some recent cases in which a person was convicted of involuntary manslaughter include dropping an infant under circumstances that the state believes is indicative of shaken baby syndrome rather than accident (“Tragic Accident” 1998), refusing medical care for a child on the grounds of religious belief (Schneider 1999), and owning vicious dogs or other animals that fatally injure someone (Van Derbeken 2002). Similar vicious animal statutes exist in Minnesota and Mississippi. This statute proscribes punishment of the owner if a fatal injury to a human is caused by an animal known to be vicious.

As a statutory offense, the negligent homicide category addresses problems associated with common-law manslaughter principles. The legal parameters of negligence remain somewhat unclear, however. If the decision is to charge parents with failure to provide reasonable care for their children, then the specificity of negligence must be clearly articulated. Negligent actions that result in the death of another are intended to be measured against the reasonable conduct of one who is confronted with a similar situation.

Some states proscribe specific categories pertaining to negligent homicide and manslaughter. And several states have vehicular manslaughter and negligent homicide laws that allow prosecutors a number of options for bringing criminal charges, including murder and vehicular homicide. In Florida, one can be charged with one of three specific vehicular offenses: culpable negligent manslaughter, vehicular homicide, or driving under the influence. According to Hersh (1997), the Florida distinction is significant because the degree of negligence must be legally established to include high, middle, or low levels of negligence. Similarly in Ohio, aggravated vehicular homicide is a felony offense, whereas vehicular homicide is a misdemeanor. Nevertheless, at the present time, Ohio State prosecutors are provided the option of charging involuntary manslaughter, a charge considered more serious than aggravated vehicular homicide (“The Other Tragedy” 1990).

In California, individuals under the age of 21 can be charged with aggravated vehicular manslaughter if a death is the result of an accident involving an intoxicated driver, even if the blood-alcohol level is less than the limit set for persons over the age of 21 (Diaz de Leon 2000). And in Massachusetts, the state misdemeanor motor vehicle homicide law is intended to punish individuals for reckless driving or for being under the influence of alcohol or drugs. If the accused is both reckless and legally intoxicated, the state may pursue even more serious charges up to and including felony murder (Finucane 2000). Finally, although designed to distinguish types of negligence, vehicular homicide and manslaughter laws do not necessarily provide clear guidelines for determining if vehicular death warrants criminal liability and, if so, the degree of culpability that should be established.


Homicide laws reflect community values as much as these represent an evolution of legal principles. Emerging standards that mitigate murder to manslaughter and reduce the punishment for involuntary homicide also reflect an increasing awareness of the human capacity for violence and the community desire to protect young children from harm. These statutes are useful for examining and explicating the context within which women kill their abusers, children die as a result of neglect and abuse, men are prone to murderous rage, and how accidents occur. Whether any of these events are considered criminal in nature depends on community values, the variable aspects of the criminal justice system, victim support group initiatives, and the characteristics of offenders.

The history of the criminal law is that of an agency in a constant process of refinement. Further refinement of the law is certain to occur, given the expressed community need to reexamine legal concepts such as heat of passion. In this context, one judicial procedure that requires reevaluation is whether the court should favor certain offenders while denying similar consideration for others.

Manslaughter laws should reflect a deep understanding of anger, violence, and other issues relating to the family, given the extensive research in these areas. The investigation of child abuse and neglect can protect infants and save children’s lives. If children are harmed due to accident or neglect, the state should assure its citizens that the appropriate immediate cause of death will be accurately certified and that every effort will be made to determine culpability. Youthful victims of homicide cannot speak for themselves, and the state holds an obligation to protect the rights of all of its citizens.

With respect to involuntary manslaughter and negligent homicides, the law should establish clear guidelines. Although some states already have the important murder, voluntary manslaughter, and involuntary manslaughter provisions in place, other state laws fail to provide clear guidelines to address the degree of crime appropriate for emergent forms of manslaughter and involuntary homicide.

As states move to broaden the categories of behavior for which culpability for manslaughter and negligent homicide will be found, it is important to make sure that constitutional parameters of basic statutory construction and application are met. Laws need to clearly indicate what behavior is lawful or unlawful; the statutory law cannot be vague or overbroad, or violate equal protection principles.