Violent Crimes include murder, manslaughter, rape, arson, and assault. Violent crimes are typically earmarked by the use of force or the threat of force against another.
The most serious category of violent crimes is homicide, which means the killing of a human being. Homicides may be intentional or unintentional and the law establishes varying degrees of culpability depending on the defendant’s intent and various other factors. The Model Penal Code defines criminal homicide as purposely, knowingly, recklessly, or negligently causing the death of another human being. Degrees of homicide include includes murder, manslaughter and negligent homicide.[1]
Murder
Murder is the killing of another human being with sufficiently culpable intent. The level of intent determines the degree, or seriousness, of the crime. As with all crimes, each state defines murder for its jurisdiction. For example, Georgia defines murder as unlawfully “and with malice aforethought, either express or implied, causing the death of another human being.”[2] Kentucky, by contrast, leaves out the term “malice aforethought” and states that a person is guilty of murder when “with intent to cause the death of another person, he causes the death of such person or of a third person.”[3]
“Malice aforethought” was, under the common law the state of mind required for a murder conviction, though, as we just saw, not every state retains this language. Malice aforethought under the common law means any one of four states of mind:
- Intent to kill
- Intent to inflict serious bodily injury (and death results)
- Intent to commit a felony (and death results)
- Conduct that shows a “depraved indifference to human life” from which death results.[4]
For example, in the Georgia case, Stephens v. State, the defendant lived with her aunt. Multiple witnesses testified to seeing signs of physical abuse of the aunt. One evening, neighbors heard screaming and sounds of a struggle coming from the home. Shortly thereafter emergency technicians arrived and found the aunt dead. The medical examiner found that the aunt’s injuries were caused by beatings and abuses over a period of time. The defendant was convicted of murder.[5] Although intent to kill could not be shown, the pattern of abuse and injuries were sufficient to show “malice aforethought.”
States typically classify murder by degrees. The most common classifications are first-degree and second-degree murder. First-degree may be defined by intent to kill or premeditation or some additional aggravating circumstance beyond “ordinary” murder. For example, in Colorado, a person commits first-degree murder if “after deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person.”[6] Second-degree murder is any other incident of “knowingly” causing the death of a person.[7]
In some states, the difference between first- and second-degree murder is whether the defendant pre-planned the murder (often referred to as “pre-meditation”). For example, in the Arkansas case, Harris v. State, the defendant shot the victim during an argument at a party. Multiple witnesses testified, but none of the testimony established that the defendant harbored any ill will towards the guest prior to the shooting. A jury convicted the defendant of first-degree murder, but the Supreme Court of Arkansas reversed the conviction because there was no evidence of premeditation or deliberation, which precludes a conviction of first-degree murder.[8]
Some states don’t distinguish between premeditated and “spur of the moment” murders, but rather use the circumstances to determine the degree. In New York, for example, “ordinary” intent-to-kill murder is second-degree murder,[9] while first-degree requires some form of aggravating circumstance, such as that the victim was an on-duty police officer, peace officer, firefighter or the like or any one of a number of enumerated “aggravating” circumstances.[10]
The “depraved indifference” standard under the common law, wherein a person could be convicted of murder without intent to kill, was exemplified in a Pennsylvania case, Commonwealth v. Malone. There, a person was convicted of murder when a (modified) game of “Russian roulette” resulted in the death of one of the participants.[11] The shooter was convicted of second-degree murder despite there being no intent to kill.
The “felony-murder” rule is a common law doctrine that holds a person criminally liable for murder if a death results from the commission of a felony, regardless of whether or not he had the intent to kill.[12] The rule applies only to dangerous felonies, such as those referred to by the acronym “BRAKES”:
– Burglary
– Robbery
– Arson
– Kidnapping
– Escape (from prison) and
– Sexual assault
A person who participates in one of these felonies is guilty of felony-murder for the death of a nonparticipant (or, in some states, even of a participant in the crime) if the death is caused by an act committed in the “course or continuance” of the felony or the “immediate flight therefrom.”[13] Consider the following case:
A defendant intended to rob a liquor store and entered with an unloaded shotgun that he kept concealed. When he announced that he intended to rob the store, the victim brandished a gun of his own. The defendant told the victim his gun was not loaded, placed it on the floor, and told the victim he surrendered. When the victim disappeared from view, the defendant loaded his shotgun, found the victim, and shot him out of fear that the victim would shoot him first. The defendant was convicted of multiple charges, including felony murder. The defendant argued that because he had surrendered to the victim and the victim was armed with a weapon, his actions were in self-defense and not committed in furtherance of the felony. On appeal, the court noted that because the defendant was in the process of extricating himself from the scene, a felony-murder charge was proper.[14]
Manslaughter
While murder means homicide with “malice aforethought,” manslaughter is a still serious, but lesser form of homicide. For example, Nevada defines manslaughter as the “unlawful killing of a human being, without malice express or implied, and without any mixture of deliberation.”[15]
Manslaughter is typically broken down into two categories: voluntary and involuntary. Voluntary manslaughter is intentional killing, but with some form of mitigation that reduces the charge from murder. Involuntary manslaughter means homicide through recklessness (or, in some states, negligence), but with no malice aforethought.
Voluntary Manslaughter
To reduce an intentional homicide from murder to manslaughter, the defendant can show that there was significant provocation and that the defendant acted in the “heat of passion.”[16] Heat of passion is often described as extreme anger or rage, but it also refers to a state of mind sufficient to negate the element of malice. In the New York case, People v. Lewis, a jury found a defendant guilty of first-degree manslaughter after he fatally shot his girlfriend during an argument where she accused him of infidelity. The court explained that because the defendant was operating under the “heat of passion,” manslaughter was the appropriate charge. The court observed that heat of passion does not require a violent rage, but the existence of a state of mind that demonstrates there “is an absence of design to cause death and absence of deliberate implementation of such design,” which is indicative of a sudden urge and spontaneous action.[17]
While catching one’s spouse in an affair has traditionally been the classic examples of provocation,[18] the heat of passion (partial) defense requires that the defendant commit the killing suddenly. If too much time passes between the provocation and the killing, the defendant cannot claim to have been acting in the heat of passion. Thus, if the defendant has a sufficient “cooling off period,” the killing should be classified as murder, not manslaughter.
For example, in the Georgia case, Walden v. State, the ex-boyfriend of the defendant’s girlfriend followed her to the defendant’s home and pulled his car into the defendant’s driveway and got into a heated argument with the defendant. The defendant retrieved a weapon from inside the house and the ex-boyfriend drove away. The defendant followed the ex-boyfriend for some time on foot and hid behind a sign. When the ex-boyfriend drove past, the defendant fired two shots into the vehicle, killing the ex-boyfriend. The defendant argued that he should have been charged with voluntary manslaughter, not murder. The court held that because a sufficient cooling off period took place before the defendant killed the ex-boyfriend, the killing was not the result of the heat of passion, but was a deliberate act of aggression, supporting a charge of murder.[19]
Involuntary Manslaughter
Involuntary manslaughter is the appropriate charge when a defendant commits an act that results in death, and the act is inherently dangerous or done with disregard for a risk to human life. This means that the defendant knew, or should have known, that his conduct might result in death. In the Virginia case, Bell v. Commonwealth, a defendant was convicted of involuntary manslaughter after he struck and killed a pedestrian while operating a car at excessive speeds, driving on the left center of the highway, without headlights and without properly controlling the car. In explaining that the involuntary manslaughter conviction was proper, the court noted that “It must be shown that a homicide was not improbable under all of the facts existing at the time, and that the knowledge of such facts should have had an influence on the conduct of the offender.”[20]
Involuntary manslaughter is also a common charge when mistreatment or neglect of children results in their deaths. In the Alaska case, Jolley v. State, the defendant was found guilty of manslaughter after she physically abused a three-year-old child causing the child’s intestines to rupture, which resulted in the child’s death.[21]
Some states apply involuntary manslaughter when a death results from criminal negligence, while others have created a separate, lesser, homicide crime called “criminally negligent homicide.”[22]
Assault
The Model Penal Code defines assault as attempting to cause physical injury to another or to put another in fear of imminent, serious injury to his body. The assault is aggravated if a deadly weapon is used or if the attempt to cause injury manifests an extreme indifference to the value of human life and is done purposefully, knowingly, or recklessly.[23] It may also be considered aggravated if serious injury results. A person who choked his wife, for example, and struck in the face and chest a neighbor who tried to intervene, was properly convicted of aggravated assault, among other charges.[24]
The laws defining assault vary significantly from state to state. Kansas defines assault as intentionally placing another in reasonable apprehension of immediate bodily harm, whereas New York requires an actual injury.[25] Minnesota separates assault crimes into five degrees: First-degree assault requires an injury that causes a substantial risk of death or the loss of an organ, Second-degree assault involves the use of a dangerous weapon, Third-degree assault requires a substantial injury such as a fracture or temporary disability. Fourth-degree assault is the intent to cause bodily harm or fear of bodily harm to a police officer or public servant, and also includes assaults motivated by bias. Fifth-degree assault is the same as Fourth-degree assault except the victim is not necessarily a public servant.[26]
Rape
Under the Model Penal Code, which typifies the common law rape definition, a rape occurs when a male has sexual intercourse with a female who is not his wife if (1) he uses force or threat of force; (2) he intended to impair her ability to consent with the use of drugs or intoxicants; (3) she is unconscious; or (4) she is less than 10 years old.[27] Many states also define rape as intercourse with someone incapable of giving consent due to a mental defect or unsoundness of mind.[28]
Modern rape and sexual assault laws have dispensed with virtually all of the common law requirements. Rape now doesn’t typically require sexual intercourse and most states apply rape laws irrespective of the gender of the defendant or victim.[29] Sexual assaults that don’t rise to the level of rape are also prosecuted and their degrees and punishments vary based on the level of force used, the conduct engaged in and the age of the victim.[30]
“Statutory rape” is a term used to describe sexual relations with underaged victims. There is no requirement of force, as the minor is not considered capable of consent even if he or she did express consent.[31] The age of consent can vary by state. Most states set the age of consent as 16, but some states set the age at 17 or 18. Statutory rape is a strict liability crime where a defendant can be convicted even if he did not know the victim is under age. For example, in the Maryland case, Garnett v. State, the defendant engaged in sexual intercourse with a 13-year-old girl. Evidence was introduced at trial that suggested the victim and her friends had previously informed the defendant that the victim was 16 years old and the defendant had acted with that belief. The Maryland Supreme Court held that neither consent nor reasonable mistake was a defense to a charge of statutory rape because the crime only required proof of three elements: the age of the victim, the age of the defendant and that an act of sexual intercourse occurred. The fact that the sexual intercourse was consensual and that the victim lied to the defendant about her age was immaterial.[32]
Arson
Under common law, arson was defined as the malicious burning of the dwelling of another.[33] Under the slightly expanded Model Penal Code definition, an arson occurs when a person starts a fire or causes an explosion with the purpose of destroying a building or destroying property to collect the insurance money from the loss.[34] The application of arson to the destruction of one’s own building to collect insurance has been near universal.[35]
Some states classify arson by degrees, depending on the defendant’s intent and the risk to human life. Burning a building where people are known to be present is more serious than burning an abandoned building. In the State of Florida, the difference between first-degree arson and second-degree arson relates to whether the structure was occupied.[36] Some states also provide for enhanced sentences if certain aggravating factors are found. For example, an Idaho defendant who started a hotel fire by igniting a roll of toilet paper in the bathroom was convicted of aggravated arson because two people died in the fire.[37]
Some states apply a wide range of arson degrees based on the circumstances. For example, in Rhode Island, there are seven degrees of arson. They range from seventh-degree arson, which means making an unauthorized bonfire and is punishable be a $100 fine, up to first-degree arson, which is knowingly causing a fire or explosion in an occupied building where there is substantial risk of serious harm to people and is punishable by anywhere from five years in prison to life imprisonment.[38]
[1] Model Penal Code § 210.1(1)-(2).
[2] Ga.Code Ann. § 16-5-1.
[3] Ky.Rev. Stat. Ann. § 507.020.
[4] Murder, Wex Legal Dictionary, Cornell Law School,https://www.law.cornell.edu/wex/murder (last visited Nov. 25, 2018).
[5] Stephens v. State, 439 S.E.2d 478, 478-79 (Ga. 1994).
[6] Colo.Rev. Stat. § 18-3-102.
[7] Colo. Rev. Stat. § 18-3-103.
[8] Harris v. State, 177 S.W. 421, 422-23 (Ark. 1915).
[9] N.Y. Penal Law § 125.25.
[10] N.Y.Penal Law § 125.27.
[11] Commonwealth v. Malone, 47 A.2d 445, 449 (Pa. 1946).
[12] See e.g. Ga. Code Ann.§ 16-5-1(c).
[13] People v. Raymer,662 P.2d 1066, 1070 (Colo.1983).
[14] People v. Renaud, 942 P.2d 1253, 1256-57 (Colo. App. 1996).
[15] Nev. Rev. Stat. § 200.040.
[16] Nev. Rev. Stat. § 200.050.
[17] People v. Lewis, 123 N.Y.S.2d 81, 83-85 (App. Div. 1953).
[18] See, e.g., Jessica De Leon, “He Killed the Man He Thought Was Sleeping With His Wife. Now He’s Going to Prison,” Bradenton Herald, (April 11, 2018), https://www.bradenton.com/news/local/crime/article208494709.html
[19] Walden v. State, 268 Ga. 440, 441-42 (1997).
[20] Bell v. Com., 170 Va. 597, 611-12 (1938).
[21] Jolley v. State, 655 P.2d 784, 785 (Alaska Ct. App. 1982).
[22] N.Y. Penal Law § 125.10.
[23] Model Penal Code § 211.1.
[24] State v. Davenport, 326 A.2d 1, 3-4 (Me. 1974).
[25] Kan.Stat. Ann. § 21-5412; N.Y. Penal Law § 120.10.
[26] Minn.Stat. Ann. § § 609.221; 609.222; 609.223; 609.2231; 609.224 .
[27] Model Penal Code § 213.1.
[28] See e.g. Okla. Stat. Ann. tit. 21, § 1114.
[29] Attorney General Eric Holder Announces Revisions to the Uniform Crime Report’s Definition of Rape, U.S. Dep’t of Justice, Off. Pub. Affairs, (Jan. 6, 2012), https://archives.fbi.gov/archives/news/pressrel/press-releases/attorney-general-eric-holder-announces-revisions-to-the-uniform-crime-reports-definition-of-rape.
[30] See N.Y. Penal Law, § 130.05-130.96.
[31] See e.g. Ga. Code Ann. § 16-6-3.
[32] Garnett v. State, 332 Md. 571, 575-78 (Ct. App. 1993).
[33] Arson, Wex Legal Dictionary, Cornell Law School, https://www.law.cornell.edu/wex/arson (last visited Nov. 25, 2018).
[34] Model Penal Code § 220.1.
[35] Statev. Jones, 623 S.W.2d 129, 130 (Tenn. Crim. App. 1981).
[36] Stevens v. State, 195 So. 3d 403, 406 (Fla. Dist. Ct. App. 2016).
[37]State v. Payne, 134 Idaho 423, 426 (2000).
[38] 11 R.I. Gen. Laws §§ 11-4-1 – 11-4-8.