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Murder is the unlawful killing of another human person with malice aforethought, as defined in Common Law countries. Murder is generally distinguished from other forms of homicide by the elements of malice aforethought and the lack of lawful justification. All jurisdictions, ancient and modern, consider it a most serious crime and therefore impose severe penalty on its commission.
Legal analysis of murder[edit | edit source]
Common law murder is defined as the: 1. unlawful 2. killing 3. of another human person 4. with a state of mind known as "malice aforethought."
The first three 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":
(i) Intent to kill; (ii) Intent to inflict serious bodily harm short of death; (iii) Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"); or (iv) 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 criminal homicides are felonies.
Insanity[edit | edit source]
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. 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:
- 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.
Post-partum depression[edit | edit source]
Some countries, such as Canada, Italy, the United Kingdom, New Zealand and Australia, allow post-partum 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 a year 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). [How to reference and link to summary or text]
Self-defense[edit | edit source]
Acting in self-defense or in defense of another person is generally accepted as legal justifications 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.
Unintentional[edit | edit source]
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 constitutes reckless killing, while criminally negligent homicide is a grossly negligent killing.
Diminished capacity[edit | edit source]
In those jurisdictions using the Uniform Penal Code, such as California, diminished capacity may be a defense. For example, Dan White used this defense to obtain a manslaughter conviction, instead of murder, in the assassination of Mayor George Moscone and Supervisor Harvey Milk. [How to reference and link to summary or text]
Demographics[edit | edit source]
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.
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, with rates in larger cities sometimes over 40 per 100,000.
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 US Department of Justice[How to reference and link to summary or text]). There is a sharp peak in the age distribution of murderers between the ages of 17 and 30.[How to reference and link to summary or text] People become decreasingly likely to commit a murder as they age. Incidents of children and adolescents committing murders are also extremely rare,[How to reference and link to summary or text] notwithstanding the strong media coverage such cases receive.
There are an estimated 55,000 murders in Brazil every year, about 30,000 murders committed annually in Russia, approximately 25,000 murders in Colombia (in 2005, murders went down to 15,000), approximately 20,000 murders each year in South Africa, approximately 17,000 murders in the United States (666,160 murders from 1960 to 1996), 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, approximately 1000 murders in France, approximately 580 murders per year in Canada, and approximately 200 murders in Chile. The murder rate in Port Moresby, Papua New Guinea is 23 times that of London.
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.
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, 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. Gun control advocates further point out that, unlike the United States, many European countries disallow gun ownership by private citizens but Switzerland has the least restrictive firearm laws and corresponding higher gun murder deaths. Canada introduced a comprehensive Firearms Certificate program in 1977, which was followed by a sharp decline in its homicide rate (and its firearm homicide rate) however firearm homicide rates have crept back up to pre-1977 levels by 2005 even though the overall rate remains less. 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.
See also[edit | edit source]
- Cult homicides
- Execution-style murder
- Felony murder
- Serial murder
- Thrill killing
References[edit | edit source]
- R. v. M'Naughten, get full cite.
- (2002). CODE DE LA SANTE PUBLIQUE Chapitre III : Hospitalisation d'office Article L3213-1. Legifrance. URL accessed on 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.
- The French Parliemant. ARTICLE 122-5. French Criminal Law. Legifrance. URL accessed on 2007-11-01.
- The French Parliemant. Article 222-8. French Criminal Law. Legifrance. URL accessed on 2007-11-01.
- The French Parliemant. Section II - Involuntary Offences Against Life. French Criminal Law. Legifrance. URL accessed on 2007-11-01.
- (the so-called "Twinkie defense).
- WHO: 1.6 million die in violence annually
- FBI web site
- Brazil murder rate similar to war zone, data shows
- Colombia's Uribe wins second term
- Twentieth Century Atlas - Homicide
- Jamaica 'murder capital of the world'
- Canada's National Statistical Agency:Homicides
- Crime Statistics
- includeonly>Fickling, David. "Raskol gangs rule world's worst city", The Guardian, 2004-09-22. Retrieved on 2007-01-09.
- Harris, Anthony R., Stephen H. Thomas ; Gene A. Fisher ; David J. Hirsch (05 2002). Murder and medicine: the lethality of criminal assault 1960-1999. Homicide studies 6 (2): 128–166.
- Disaster Center web site
Bibliography[edit | edit source]
[edit | edit source]
- - Murder in the UK - detailed site
- 1986 Seville Statement on Violence (from UNESCO)
- Introduction and Updated Information on the Seville Statement on Violence
- U.S. Centers for Disease Control "Atlas of United States Mortality"
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