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| Criminal defenses |
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| Part of the common law series |
| See also Criminal law and procedure |
| Insanity · Mental disorder |
| Diminished responsibility |
| Intoxication · Infancy |
| Automatism |
| Consent · Mistake |
| Duress · Necessity |
| Provocation · Self defense |
| False confession · Entrapment |
| Other common law areas |
| Contract law · Tort law · Property law |
| Wills and trusts · Evidence |
| Portals: Law · Criminal justice |
| Homicide |
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| Murder |
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Assassination |
| Manslaughter |
| Non-criminal homicide |
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Justifiable homicide |
| Other types of homicide |
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Avunculicide |
| "Homicide" status disputed |
The United States' concept of justifiable homicide in criminal law stands on the dividing line between an excuse and an exculpation. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential Criminal procedure refers to the legal process for adjudicating claims that someone has violated Criminal law. In Criminal trials the insanity defenses are possible defenses by Excuse, an Affirmative defense by which Defendants argue that In the Criminal laws of Australia and Canada, the defence of mental disorder (sometimes called the defence of mental illness) is a legal In Criminal law, diminished responsibility (or diminished capacity) is a potential defense by Excuse by which Defendants argue that General intent crimes do not require an intent to break the law just an unlawful act ("actus reus" and an intent to act in such a fashion The defense of infancy is a form of defense known as an Excuse so that Defendants falling within the definition of an "infant" are excluded For a more detailed discussion of individual topics see Automatism (case law In the Criminal Law, automatism is a defense to liability In the Criminal law, consent may be an Excuse and prevent the defendant from incurring Liability for what was done A mistake of fact may sometimes offer exculpation (as in Excuse) by allowing a criminal Defendant some relief from liability for having broken the For English law on the criminal defence see Duress in English law. In Criminal law, necessity may be either a possible justification or an exculpation for breaking the Law. Also see Provocation in English law. In Criminal law, provocation is a possible defense by excuse or exculpation The right of self-defense (also called alter ego defense, defense of others, defense of a third person) is the right for civilians acting on their see False confession (legal for more False Confession was a Hardcore punk band in the early 1980s that emerged in the Oxnard California Entrapment is the act of a law enforcement agent in inducing a person to commit an offence which the person would not have or was unlikely to have otherwise committed A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law Tort law is the name given to a body of law that creates and provides remedies for civil wrongs that do not arise out of Contractual duties Property law is the area of Law that governs the various forms of Ownership in Real property (land as distinct from personal or movable possessions In Common law, a will or testament is a document by which a person (the Testator) regulates the rights of others over his or her Property The law of trusts and estates is generally considered the body of Law which governs the management of personal affairs and the Disposition of Property of The Law of evidence governs the use of Testimony (eg oral or written statements such as an Affidavit) and exhibits (e List of countries by homicide rate Homicide ( Latin homicidium, homo human being + caedere to cut kill refers to the act of killing another Murder is the unlawful killing of another human person with Malice aforethought, as defined in Common Law countries AssassiNation is the sixth album by Krisiun, released in 2006 on Century Media. Note for practices of systematically killing very young children see Infanticide. Consensual homicide, also called assisted suicide, refers to a killing in which the victim wants to die Contract killing occurs when a private contractor or a government hires someone to kill a specific person or people for a sum of money An honor killing or honour killing is generally the Murder of a family or clan member most often females when they (and maybe the wider community believe A lust murder is a Homicide in which the offender searches for erotic satisfaction by killing someone Lynching is an Extrajudicial punishment meted out by a mob Lynching an enumerated Felony in some states in the United States, is defined by some This article deals with mass killings that are not considered Genocide. A murder-suicide is an act in which an individual kills one or more other persons immediately before or at the same time as killing him or herself A proxy murder is a Murder in which the murderer does so at the behest of another acting as his or her proxy Human sacrifice is the act of Homicide (the Killing of one or several Human beings in the context of a Religious ritual ( ritual killing A serial killer is a person who Murders usually three or more people with a "cooling off" period between each murder and whose motivation for killing is largely based A spree killer, also known as a rampage killer, is someone who embarks on a Murderous assault on his victims in a short time in multiple locations Torture murder is a loosely defined term to describe the process used by Murderers who kill their victims by slowly torturing them Manslaughter is a legal term for the killing of a human being in a manner considered by law as less culpable than Murder. For a discussion of the law in other countries see Manslaughter In the English law of Homicide, manslaughter is a less serious Negligent homicide is a charge brought against people who by inaction allow others under their care or presence intentionally to die Vehicular Homicide ( or sometimes known as Vehicular Manslaughter) in most states in the United States is a crime Capital punishment, the death penalty or execution, is the Killing of a person by judicial process as Punishment. Avunculicide is the act of killing an Uncle. The term is derived from the Latin words avunculus meaning "maternal uncle" and caedere Definition According to Rummel Genocide has three different meanings A familicide is a type of Murder or Murder-suicide in which at least one spouse and one or more children are killed Gendercide is a Neologism that refers to the systematic killing of members of a specific Sex, either Males or Females The term is intended to Filicide is the deliberate act of a parent killing his or her own son or daughter Fratricide (from the Latin word frater, meaning "brother" and cide meaning to kill is the act of a person Killing his or her Gendercide is a Neologism that refers to the systematic killing of members of a specific Sex, either Males or Females The term is intended to Genocide is the deliberate and systematic destruction in whole or in part of an ethnic racial religious or national group Infanticide is the practice of someone intentionally causing the death of an Infant. Mariticide (from Latin maritus "married" + -cide, from caedere "to cut to kill" literally means the murder of one's married Matricide is the act of Killing one's Mother. As for any type of killing motives can vary a great deal Neonaticide is the killing of a newborn within the first 24 hours of life Parricide ( Latin "parricida" killer of a close relative stemming from ( Latin "parri" alike or equal and "-cida" -cide or killer Patricide is (i the act of killing one's father or (ii a person who kills his or her father The broad definition of regicide is the deliberate killing of a Monarch, or the person responsible for it Sororicide (from Latin soror "sister" + -cide, from caedere "to cut to kill" is the act of killing one's own sister Tyrannicide literally means the killing of a Tyrant. Typically the term is taken to mean the killing or Assassination of tyrants for the common good Uxoricide (from Latin uxor meaning "wife" is murder of one's wife An For the American death metal band see Deicide (band Deicide is the killing of a god either the God of a monotheistic religion Feticide or foeticide is an act that causes the death of a fetus The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential In Jurisprudence, an excuse or justification is a form of immunity that must be distinguished from an exculpation. Exoneration occurs when a person who has been convicted of a Crime is later proved to have been innocent of that crime In other words, it takes a case that would otherwise have been a murder or another crime representing intentional killing, and either excuses the individual accused from all criminal liability or treats the accused differently from other intentional killers. Murder is the unlawful killing of another human person with Malice aforethought, as defined in Common Law countries
Contents |
Explanation
The normal rule in the criminal law is that those accused of crime should be convicted of an offense only if they have committed the actus reus (the Latin for "guilty act") of an offense, accompanied by the necessary mens rea (the Latin for "guilty mind") element. Actus reus, sometimes called the external element or the objective element of a crime is the Latin term for the "guilty act" which when proved Latin ( lingua Latīna, laˈtiːna is an Italic language, historically spoken in Latium and Ancient Rome. In Criminal law, mens rea the Latin term for "guilty mind" is usually one of the necessary elements of a Crime. Thus, if one person has killed another, intending to do so, the normal consequence would be a conviction for murder. In Law, a conviction is the Verdict that results when a Court of law finds a Defendant guilty of a Crime. But, for a variety of different public policy reasons, societies over the centuries have considered it morally acceptable and/or merely expedient for one person to kill another and to treat this killing as "justifiable" in a number of different situations. Public policy is the body of fundamental principles that underpin the operation of legal systems in each state. A society is a Population of Humans characterized by patterns of relationships between individuals that share a distinctive Culture and Institutions Morality (from the Latin la moralitas "manner character proper behavior" has three principal meanings Thus, the Laws of Solon forming part of early Athenian law, provided that if an accused pleaded that they were justified in killing another, their case would be tried in a dedicated court called the Delphinion where, for example, it was considered justifiable homicide to kill an adulterer caught in the act or a burglar caught in the act at night. Solon ( ancient Greek:, c 638 BC&ndash558 BC was an Athenian Statesman, Lawmaker and Lyric poet. In ancient Greece a Delphinion (ancient Greek Δελφίνιον was a temple of Apollo Delphinios ("Apollo of the the womb" also known as "Delphic Apollo" These exceptions to liability match the modern concepts of provocation and defense of property and reflect the fact that, although the terminology of justification may change over the centuries, the human concepts of jealousy and the rights of ownership remain reasonably consistent as potential excuses. Also see Provocation in English law. In Criminal law, provocation is a possible defense by excuse or exculpation Ownership is the state or fact of exclusive rights and control over Property, which may be an object, land/real estate, Intellectual property
In deciding when intentional killings should be treated as "justifiable", governments are balancing different sets of interests. For the government of parliamentary systems see Executive (government. On the one hand, states usually accept some form of practical responsibility to protect their citizens from harm. A state is a political association with effective Sovereignty over a geographic Area and representing a Population. In more modern times, this reflects a social contract where allegiance is rewarded by the provision of policing and other civil defense systems, and the apparatus of redress for injuries suffered through a court system. Social contract describes a broad class of republican theories whose subjects are implied agreements by which people form Nations and maintain a Social order An allegiance is a duty of fidelity said to be owed by a subject or a Citizen to his/her state or sovereign. Police are agents or agencies usually of the executive, empowered to enforce the law and to effect public and social order through the legitimatized use of force Civil defense or civil defence (see spelling differences) is an effort to prepare Civilians for Military attack A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its In the United Nations Universal Declaration of Human Rights, Article 3 states that everyone has the right to life, liberty and security of person, and many constitutions offer protection for "life" which, presumably, even applies to those who have broken the law. The United Nations ( UN) is an International organization whose stated aims are to facilitate cooperation in International law, International security The Universal Declaration of Human Rights ( UDHR) is a declaration adopted by the United Nations General Assembly ( 10 December 1948 at Palais A constitution is a system for government often Codified as a written document that establishes the rules and principles of an autonomous political entity Yet, more modern cultures also value and respect individual autonomy, and wish to avoid unduly restricting an individual's freedom of action and refrain from interfering in a citizen's life unless it is absolutely necessary. Culture (from the Latin cultura stemming from colere, meaning "to cultivate" generally refers to patterns of human activity and the symbolic Freedom, or the idea of being free is a broad concept that Where the balance is struck will be reflected in which situations are allowed to become excuses and result in an immunity, and those situations which merely exculpate, i. e. allow special treatment either by reducing the charge to one less serious, or by reducing the sentence. In Law, a sentence forms the final act of a Judge -ruled process and also the symbolic principal act connected to his function Hence, in eighteenth century English law, it was considered a justifiable homicide if a husband killed a man "ravishing" or raping his wife (Blackstone, Wm. English law is the legal system of England and Wales, and is the basis of Common law legal systems used in most Commonwealth countriesand the Rape, also referred to as Sexual assault, is an Assault by a person involving Sexual intercourse with or Sexual penetration of another person at p391), but modern law treats this as only a circumstance that will mitigate murder to a conviction for manslaughter. Manslaughter is a legal term for the killing of a human being in a manner considered by law as less culpable than Murder. In other words, the socialization of modern men is supposed to result in less violent responses to provocations. The term socialization is used by sociologists, social psychologists and Educationalists to refer to the process of learning one’s Culture
Common excusing conditions
Potentially excusing conditions common to most jurisdictions include the following.
- Where a state is engaged in a war with a legitimate casus belli, a soldier from one of the combatant states may lawfully kill a soldier in the army of the opposing state so long as that soldier has not surrendered. War is an international relations Dispute, characterized by organized Violence between National Military units Casus belli is a Latin language expression meaning the justification for acts of war This principle is embedded in public international law and has been respected by most states around the world. Public international law concerns the structure and conduct of States and Intergovernmental organizations. Thus, if there is no formal declaration of war or the casus belli is not legitimate, all those who engage in the fighting and kill combatants could theoretically be prosecuted. A declaration of war is a formal performative Speech act or signing of a document by an authorised party of a government in order to initate a state of War Otherwise, protecting the national interest against external aggressors will be considered an excuse on utilitarian grounds, i. Utilitarianism is the idea that the moral worth of an action is solely determined by its contribution to overall Utility, that is its contribution to happiness e. the greatest public good will be derived from the defeat of the enemy.
- Where a state operates a system of capital punishment, all those who may be involved are excused from liability. Capital punishment, the death penalty or execution, is the Killing of a person by judicial process as Punishment. This usually includes the judge who passes sentence, the prison guards who deliver the condemned person to the place of execution and those who carry out the sentence. A judge, or justice, is an Official who presides over a Court of law Capital punishment, the death penalty or execution, is the Killing of a person by judicial process as Punishment.
- Many states agree that it may be lawful for a citizen to repel violence with violence to protect his or her own or another's life and limb, or to prevent sexual assault or damage to valuable property. However, there is less agreement on the extent to which it is ever justifiable to kill the attacker. There are usually tests based on the proportionality of the response to the attack. Thus, there may be exculpation if the level of force used in defense matches the force threatened and the "winner" of the conflict first retreated or showed a clear intention not to fight (assuming this was possible in the time available).
- The idea of a crime of passion, in which death results in the "heat of the moment," is now considered a part of the defense of "provocation" against a charge of murder. A crime of passion, in popular usage refers to a crime in which the perpetrator commits a crime especially assault or Murder, against a Spouse or other loved one This recognizes that all individuals may suddenly and unexpectedly lose control when words are spoken or events occur but, again, states differ on the extent to which this should be allowed to excuse liability or merely mitigate to a lesser offense such as manslaughter.
- The doctrine of necessity allows, for example, a surgeon to separate conjoined twins, killing the weaker twin to save the other. In Criminal law, necessity may be either a possible justification or an exculpation for breaking the Law.
- Several countries, such as the Netherlands, Belgium, Switzerland, Japan and the US state of Oregon allow both active and passive euthanasia by law, if justified. The Netherlands ( Dutch:, ˈnedərlɑnt is the European part of the Kingdom of the Netherlands, which consists of the Netherlands the Netherlands The Kingdom of Belgium is a Country in northwest Europe. It is a founding member of the European Union and hosts its headquarters as well as those Switzerland (English pronunciation; Schweiz Swiss German: Schwyz or Schwiiz Suisse Svizzera Svizra officially the Swiss Confederation For a topic outline on this subject see List of basic Japan topics. Oregon ( is a state in the Pacific Northwest region of the United States.
- Abortion is regarded by some as homicide of the fetus. An A fetus (or foetus or fœtus) is a developing Mammal or other Viviparous Vertebrate, after the Embryonic stage and Abortion is variously justified using a doctrine of the nonpersonhood of the fetus, medical necessity to safeguard the health of the mother, or, more generally, utilitarianism. Utilitarianism is the idea that the moral worth of an action is solely determined by its contribution to overall Utility, that is its contribution to happiness
- There is a strand of authority that potentially permits police or other law enforcement officers to use force to protect others from harm. This is another example of utilitarianism in that it may be necessary to prejudice the few to benefit the many. But, in many states, there is a presumption of innocence before the criminal case comes to trial. The presumption of innocence being innocent until proven guilty is a legal Right that the Accused in Criminal trials has If deadly force is used to arrest a suspect, this permanently infringes on the citizen's human rights before a court has found guilt, which would be particularly unfortunate in those states that have abolished the death penalty. Deadly force is defined as the force in which a person uses causing or that a person knows or should know would create a substantial risk of causing death or serious bodily harm An arrest is the act of depriving a person of his or her liberty usually in relation to the investigation and prevention of crime In South Africa, s49 Criminal Procedure Act used to provide:
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- (2) Where the person concerned is to be arrested for an offense referred to in Schedule 1 or is to be arrested on the ground of having committed such an offense, and the person authorized under this Act to arrest or to assist is arresting him cannot arrest him or prevent him from fleeing by other means than killing him, the killing shall be deemed to be justifiable homicide. The Republic of South Africa (also known by other official names) is a country located at the southern tip of the continent of Africa
- This has now been amended by s7 Judicial Matters Second Amendment Act 122 of 1998:
- (2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome resistance or to prevent the suspect from fleeing: Provided that the arrestor is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if he or she believes on reasonable grounds-
- (a) that the force is immediately necessary for the purpose of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm;
- (b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or
- (c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm.
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United States
A non-criminal homicide, usually committed in self-defense or in defense of another, may be called in some cases in the United States. List of countries by homicide rate Homicide ( Latin homicidium, homo human being + caedere to cut kill refers to the act of killing another In the United States, the defense of self-defense allows a person attacked to use reasonable force in their own defense and the defense of others The United States of America —commonly referred to as the A homicide may be considered justified if it is done to prevent a very serious crime, such as rape, armed robbery, or murder. In the sociological field, crime is the breach of a rule or Law for which some governing authority or force may ultimately prescribe a Punishment Robbery is the Crime of seizing Property through Violence or Intimidation. The assailant's intent to commit a serious crime must be clear at the time. In the Criminal law, intention is one of the three general classes of Mens rea necessary to constitute a conventional as opposed to A homicide performed out of vengeance, or retribution for action in the past, would generally not be considered justifiable.
In cases of self-defense, the defendant should generally obey a duty to retreat if it is possible to do so. In the Criminal law, the duty to retreat is a specific component which sometimes appears in the defence of self-defence, and which must be addressed if the In the states of Alabama, Florida, Louisiana, Michigan and other Castle Doctrine states, there is no duty to retreat in certain situations (depending on the state, this may apply to one's home, business, or automobile. Alabama (formally the State of Alabama;) is a State located in the southern region of the United States of America. Florida ( is a state located in the southeastern region of the United States, bordering Alabama to the northwest and Georgia to the The State of Louisiana ( or, État de Louisiane, pronounced) is a state located in the southern region of the United States of America Michigan ( is a Midwestern state of the United States of America. ) Preemptive self-defense, cases in which one kills another on suspicion that the victim might eventually become dangerous, is considered criminal, no matter how likely it is that one was right. Justifiable homicide is a legal gray area, and there is no clear legal standard for a homicide to be considered justifiable. The circumstances under which homicide is justified are usually considered to be that the defendant had no alternative method of self-defense or defense of another than to kill the attacker.
Two other forms of justifiable homicide are unique to the prison system: the death penalty and preventing prisoners from escaping. Capital punishment, the death penalty or execution, is the Killing of a person by judicial process as Punishment. To quote the California State Penal Code (state law) that covers justifiable homicide:
- 196. California ( is a US state on the West Coast of the United States, along the Pacific Ocean. The California Penal Code forms the basis for the application of Criminal law in the American state of California. Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either--
- 1. In obedience to any judgment of a competent Court; or,
- 2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,
- 3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.
Although the above text is from Californian law, most jurisdictions have similar laws to prevent escapees from custody.
References
Omphemetse S. "Use of Deadly Force by the South African Police Services Re-visited".
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