4.1.1: Manslaughter

What distinguishes murder from manslaughter is the criminal intent element. Manslaughter is an unlawful killing without malice or murder intent (N.R.S. § 200.040, 2011). The criminal act, causation, and harm elements of manslaughter and murder are fundamentally the same. Thus, criminal intent is the only manslaughter offense element that is discussed in this section.

Voluntary Manslaughter

Manslaughter has two basic classifications: voluntary and involuntary. Voluntary manslaughter has the same criminal intent element as murder. In fact, a voluntary manslaughter killing is typically supported by express malice, specific intent to kill, or purposely. However, in a voluntary manslaughter, an emotional state called a heat of passion negates the murder intent.

An adequate provocation from the victim inspires the heat of passion (Tenn. Code Ann., 2010). The adequacy requirement is essential to any voluntary manslaughter analysis. Many defendants are provoked and thereafter kill with murder intent. Nonetheless, most provocations are not adequate to drop the crime from murder to manslaughter. The victim’s provocation must be serious enough to goad a reasonable person into killing (People v. Steele, 2011). A reasonable person is a fictional and objective standard created by the trier of fact. Of course, the defendant must actually be provoked, which is a subjective standard (People v. Steele, 2011).

Example of Inadequate Provocation

Dillon kills his supervisor Frank with a brass paperweight after Frank fires him. Clearly, Frank’s conduct provokes Dillon into killing Frank. However, getting fired would not provoke a reasonable person into a killing frenzy. In fact, reasonable people are fired all the time and learn to live with it peacefully. Therefore, in this example, Dillon’s crime is most likely murder, not voluntary manslaughter.

Example of Adequate Provocation

A traditional example of provocation that is adequate to reduce a crime from murder to manslaughter is an observation by one spouse of another spouse in the act of adultery (Ohio v. Shane, 2011). For example, José comes home from work early and catches his wife in bed with his best friend. He becomes so enraged that he storms over to the dresser, grabs his handgun, and shoots and kills her. Clearly, José acts with intent to kill. However, the victim provoked this intent with an act that could cause a reasonable person to kill. Thus, José has probably committed voluntary manslaughter in this case, not murder.

Other Examples of Adequate Provocation

Other examples of adequate provocation are when the homicide victim batters the defendant and a killing that occurs during a mutual combat (Ohio v. Shane, 2011). Cases have generally held that words alone are not enough to constitute adequate provocation (Girouard v. State, 2011). Thus, in the adequate provocation example, if a friend told José that his wife was committing adultery, and José responded by shooting and killing his wife, this would probably be murder, not voluntary manslaughter.

Concurrence of the Killing and the Heat of Passion

The second requirement of voluntary manslaughter is that the killing occur during a heat of passion. Defendants generally exhibit rage, shock, or fright when experiencing a heat of passion. This emotional state negates the calm, deliberate, intent to kill that supports a charge of murder. However, the heat of passion mental state is typically brief in duration. Thus, there cannot be a significant time lapse between the victim’s provocation and the killing (State v. Cole, 2010). If José waits until the next day to shoot and kill his wife, the crime is most likely premeditated first-degree murder, not voluntary manslaughter.²⁶

Involuntary Manslaughter

Involuntary manslaughter is an unlawful killing that completely lacks murder intent. Involuntary manslaughter is distinguishable from voluntary manslaughter, which generally includes a murder intent that has been negated. Involuntary manslaughter generally can be classified as misdemeanor manslaughter, reckless or negligent involuntary manslaughter, or vehicular manslaughter.

Reckless or Negligent Involuntary Manslaughter

States and the federal government also criminalize reckless or negligent involuntary manslaughter (Ala. Code, 2011). Reckless involuntary manslaughter is a killing supported by the criminal intent element of recklessness. Recklessness means that the defendant is aware of a risk of death but acts anyway. Negligent involuntary manslaughter is a killing supported by the criminal intent element of negligence. Negligence means that the defendant should be aware of a risk of death but is not. This category includes many careless or accidental deaths, such as death caused by firearms or explosives, and a parent’s failure to provide medical treatment or necessities for his or her child.

Reckless or negligent involuntary manslaughter is often similar to second-degree murder. If the prosecution charges the defendant with both crimes, the trier of fact determines which crime is appropriate based on the attendant circumstances.

Example of Reckless or Negligent Involuntary Manslaughter

Steven, an off-duty sheriff’s deputy, brings his shotgun into the local rifle shop to be repaired. Steven thinks that the shotgun is unloaded and hands it to the employee with the safety off.

Unfortunately, the gun is loaded and discharges, shooting and killing the employee. In this case, Steven should know that at certain times the safety on his shotgun must always be on because he is a registered gun owner and a sheriff’s deputy who has been trained to handle guns.

However, Steven is unaware of the risk and believes that the gun is unloaded. If the employee dies, Steven could be convicted of negligent involuntary manslaughter in jurisdictions that recognize this crime. If Steven is in a jurisdiction that only recognizes reckless involuntary manslaughter, the prosecution may have to prove a higher degree of awareness, such as Steven’s knowledge that the shotgun was loaded.

Figure \(\PageIndex{1}\): Wrecked vehicle.^viii

Vehicular Manslaughter

Vehicular manslaughter is typically either the operation of a motor vehicle with recklessness or negligence resulting in death or the operation of a motor vehicle under the influence of alcohol or drugs resulting in death (N.Y. Penal Law §125.12, 2010). If the defendant uses a motor vehicle as a weapon to kill the victim, the intent to kill is present and the appropriate crime would be murder.²⁷

In California, vehicular manslaughter is defined in section 192 (c) of the Penal Code as the unlawful killing of a human being without malice aforethought, and includes:

(a) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, and with gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(b) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(c) Operating a vessel in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(d) Operating a vessel in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.²⁸

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²⁶University of Minnesota Libraries Publishing (2015).

²⁷University of Minnesota Libraries Publishing (2015)

²⁸California Penal Code (2024)