A writer last week asked about the difference between homicide, murder, and manslaughter for a manuscript-in-progress. While these three terms are related, they are not interchangeable. Subtle distinctions exist between the terms that writers should understand if their plot involves the death of a human being.
Homicide is the killing of one person by another. Homicides can be unlawful or lawful. While most people tend to think all homicides are illegal, some are justifiable (e.g. killing during self-defense, killing a suspect by the police, killing during wartime combat).
Murder is the unlawful killing of a person and committed with malice aforethought.
Unlawful murders are those not considered justifiable. In other words, any murder outside the realm of non-criminal homicides, which are legally excused by state or federal statutes, would be considered unlawful.
Malice aforethought, a term I am sure you have heard in countless crime stories, relates to intent. It occurs when killing a person is intentional or premeditated, or there is intent to cause serious bodily harm that leads to death, or there is reckless disregard for human life that ends in death.
Depending on the state, murder is either considered first-degree or second-degree.
- First-Degree Murder — Dangerous and morally culpable murders tend to be first-degree. Typically first-degree murders are premeditated (decision to kill in advance), or murders that involve the use of explosives, or murders where the murderer knew the victim was a police officer, correctional officer, elected official, or judge. If planning and preparation are present, the killing is premeditated. This does not mean there must be a large amount of time and effort in the planning. For example, intent can be found even if the killer decides only moments before the death, or if a killer returns with a gun after an earlier confrontation to kill the victim.
- Second-Degree Murder — Less dangerous murders, ones that are extremely reckless and lower on the moral culpability scale, are considered second-degree. Second-degree murders are not premeditated. The intent occurs on the spot, like death during an angry confrontation where premeditation does not exist. Often the distinction between the degrees of murder tends to turn on acts that deserve harsher punishments, i.e. society’s more morally culpable acts.
- Punishment — First-degree murders receive more severe punishments than second-degree murders, with the upper limit being the death penalty to life in prison without parole. Many states have mandatory minimums for first-degree murders. Second-degree murders are usually sentenced to a term of years, and tend to be eligible for parole. The upper limit for second-degree is usually punishable up to life in prison.
- Felony Murder Doctrine — If a death occurs during the commission of a dangerous felony (like a robbery or auto theft), then malice aforethought has been met and the felon is guilty of murder, usually first-degree (but sometimes second-degree depending on the severity of the underlying felony). The rules vary per jurisdiction, but a felon can be convicted of a federal murder even if the death that occurs during the felony is accidental and unintended, or carried out by someone other than the felon. If death occurs during the felon’s escape from a dangerous felony, that death qualifies as first degree murder under the felony murder rule.
Manslaughter (or third-degree murder in some states) is the killing of a person that is unlawful and under circumstances that lessen the moral culpability as compared to first- or second-degree murder. Punishment for manslaughter is less than for murder.
Like the degrees of murder, manslaughter can be either voluntary or involuntary. Distinguishing between these two can be difficult.
- Voluntary manslaughter encompasses a killing where there is a conscious disregard for the lives of others and a lack of malice aforethought. These types of killings usually require some provocative act that elicits an extreme emotional response. Some states call it a heat of passion crime, like a wife who murders when she finds her husband in bed with the nanny, or a death provoked by a verbal insult or offensive gesture. Deaths from such provocations, while intentional, do not rise to the level of murder because the heightened emotional context prevents the killer from being in full control of their behavior. Under this definition, moral culpability is less. If, however, the killing occurs after sufficient time to cool off after the provocation, the killing rises to the level of murder.
- Involuntary manslaughter covers the unintentional homicide or reckless disregard for the lives of others, i.e. gross negligence. Classic examples of involuntary manslaughter tend to include death during reckless driving, or during the commission of a misdemeanor that unintentionally results in death. Of all the homicides, involuntary manslaughter is the less serious. Be aware that death due to extreme recklessness is often seen as second-degree murder not involuntary manslaughter. For example, death due to drunk driving might be involuntary manslaughter. Death due to drunk driving after repeated drunk driving convictions is more extreme and likely to be second-degree murder.
The distinctions between these killing crimes will depend on the facts of each scenario and the state law because of the abstract terms and levels of moral culpability, which vary from state to state, that judge each killing. Here are a few links with great examples if you need more information to help distinguish between murder and manslaughter (nolo 1, nolo 2, nolo 3). For your specific plot, consult a qualified lawyer in the jurisdiction in question.
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.