Manslaughter seems to be the most flexible and elusive type of homicide as far as the court system goes. The law has gradually made successful differentiations and weeding out about how it recognizes murder on the one hand, based mainly, though not exclusively, on an intention to kill. Manslaughter on the other hand, based mainly, though not exclusively, on the absence of intention to kill. This may be because manslaughter is generally divided by lawyers into two categories, voluntary and involuntary manslaughter.
The former concerns instances when the intention to kill is found, but the defendant successfully raises partial defenses such as provocation, diminished responsibility or killing in the act of a suicide pact. Then later concerns homicide in so many and varying conditions. Generally speaking however there are three categories of involuntary manslaughter which will be the focus of this essay. These three categories will be evaluated on a principled basis by starting with an analysis of negligence manslaughter, followed by an evaluation of reckless manslaughter, to end with a critique of unlawful act manslaughter.
Although true negligent manslaughter mainly concerns professionals who are somehow negligent in the performance of their duties, the principles of the offense are normally employed to determine the existence of a duty of care. This means if A has caused the death of B by alleged negligence, then, in order to establish civil liability, the plaintiff must prove that A owed a duty to B to take care, that that duty was not discharged, and that the default caused the death of B. To convict A of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A's negligence amounted to a crime.
However, the courts may recognize new categories of duty relationships which could lead to retrospective law decision making. The different policy objectives of the criminal law lead to further confusion regarding the importation of the duty principle as applied in the offense. Yet, the more puzzling aspect of this negligence is not the duty of care principle, but the degree of cluelessness required for negligence to amount to a crime. In civil law it suffices to establish that the defendant was negligent.
In criminal law however such negligence needs to go further than just a matter of compensation between subjects and show such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment. The jury needs to decide not only that the defendant is negligent, but whether this negligence amounts to a crime. The law is made so unpredictable as the jury may decide alike cases differently in absence of any guidance as to what classifies the negligence. As the law currently stands such uncertainty may amount to an infraction.
It may be suggested that the degree of negligence required for the conduct to be considered criminal is reckless in the ordinary meaning of the word. The law commission has recommend an objective test whereby the defendant will be found guilty of negligence manslaughter if his conduct falls far below what could reasonably be expected of him in the specific circumstance. The defendant is of course to be given any special skill and knowledge and be judged by the standards of his peers, which would ease some of the uncertainty regarding real negligence manslaughter.
The law commission's recommendation may also be more desirable as to label gross negligence manslaughter as reckless may lead to further confusion with subjective reckless manslaughter. The former requires a duty of care and a level of negligence so foul as to fall far below the level of standards expected. Then later on the other hand takes us to the boundaries between murder and manslaughter. For someone to be convicted of murder, there needs to be an intention to kill.
If therefore someone intends to claim insurance on the house or just to frighten someone, there is no intention to kill, as such they may be convicted of subjective reckless manslaughter. This is subjective as the defendant must be virtually certain that his action will cause death or grievous bodily harm, rather than a reasonable man, to be convicted of murder. Otherwise, if the defendant could not care less or appreciates the risk yet is reasonable in undertaking it, D may be found guilty of subjective reckless manslaughter.
The test for this variety of manslaughter seems to be too lenient as it is questionable whether the defendant has not in principle murdered someone when death is probable, but not practically certain. The law commission warns us against an objective or more rigid test as it may lead to the conviction of someone who does not have a reasonable level of intelligence, suggesting therefore that they are being punished for having a lower level of intelligence or maturity. If a child does not have enough experience of he world to understand that gasoline is highly inflammable, therefore is not practically certain that death will come about, it might not be fair labeling to convict him of murder. Yet equally an adult who could not care less if someone is killed, or thinks it highly probable but unlikely, may not be labeled fairly as a manslaughterer rather than a murderer Where to draw the line between manslaughter and accidental death also raises principled questions of fairness.
The unlawful act manslaughter doctrine requires an intention to cause an act, that the act is unlawful and dangerous, and that the act caused the victim's death. The intention to cause an act, say to punch, is mostly unproblematicIt is not only the irrelevance of the unlawful act itself, but also the lack of correspondence between the intention and the resulting consequence which may suggest that this variety of manslaughter is highly unprincipled.
However, it may be argued that because someone has passed a moral threshold to commit a crime against the state, however minor, and the end result is the most heinous, as a matter of policy and distributive justice, so as to send a strong signal to prevent any crime whatever, unlawful act manslaughter might be justified. It may also be suggested that there is a level of some king of luck in our daily actions and consequences. Therefore one needs to take responsibility for moral luck outcomes.
It is artificial to expect D not to feel any moral responsibility for the death of V when he pushes someone in a fight and V loses his balance and falls to the floor, knocking his head on the pavement and thereby sustaining fatal brain injuries, although such outcome would hardly be foreseeable. However, it is this element of luck, compounded with the absence of intention, which seems to ignore completely the autonomy principle and the subjective positivist theory which suggests that we should be punished only for the choices we make.
If the choice was to cause perhaps actual bodily harm rather than death, the fact that death ensues might be beyond our control and choice, therefore perhaps simply an accident, and as such be punished accordingly. The unlawful act doctrine seems to also ignore the proportionality principle as an individual who intends to only assault someone, but 'in the agony of the moment [the victim] acts without thought or deliberation' and runs to the road where s/he is hit by a car, may be punished out of proportion for manslaughter when this was not intended and only marginally possibly foreseeable.
To conclude therefore, it is no secret that the offence of manslaughter is so wide as to range from almost virtually certain death to almost an accident. It is therefore no wonder that in practically applying the law it may often seem uncertain, unpredictable, unproportional, unjust and unfair. It is often a stretch to determine the line between different categories and degrees. Nevertheless, they justice system has everything labeled or not labeled for a reason, and manslaughter has a simple understanding but may be a complex judging for some.