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The unjustifiable, inexcusable, and intentional killing of a human being without deliberation, premeditation, and malice. The unlawful killing of a human being without any deliberation, which may be involuntary, in the commission of a lawful act without due caution and circumspection.

Manslaughter is a distinct crime and is not considered a lesser degree of murder. The essential distinction between the two offenses is that malice aforethought must be present for murder, whereas it must be absent for manslaughter. Manslaughter is not as serious a crime as murder. On the other hand, it is not a justifiable or excusable killing for which little or no punishment is imposed.

At common law, as well as under current statutes, the offense can be either voluntary or involuntary manslaughter. The main difference between the two is that voluntary manslaughter requires an intent to kill or cause serious bodily harm while involuntary manslaughter does not. Premeditation or deliberation, however, are elements of murder and not of manslaughter. Some states have abandoned the use of adjectives to describe different forms of the offense and, instead, simply divide the offense into varying degrees.

Voluntary Manslaughter

In most jurisdictions, voluntary manslaughter consists of an intentional killing that is accompanied by additional circumstances that mitigate, but do not excuse, the killing. The most common type of voluntary manslaughter occurs when a defendant is provoked to commit the homicide. It is sometimes described as a heat of passion killing. In most cases, the provocation must induce rage or anger in the defendant, although some cases have held that fright, terror, or desperation will suffice.

If adequate provocation is established, a murder charge may be reduced to manslaughter. Generally there are four conditions that must be fulfilled to warrant the reduction: (1) the provocation must cause rage or fear in a reasonable person; (2) the defendant must have actually been provoked; (3) there should not be a time period between the provocation and the killing within which a reasonable person would cool off; and (4) the defendant should not have cooled off during that period.

Provocation is justifiable if a reasonable person under similar circumstances would be induced to act in the same manner as the defendant. It must be found that the degree of provocation was such that a reasonable person would lose self-control. In actual practice, there is no precise formula for determining reasonableness. It is a matter that is determined by the trier of fact, either the jury or the judge in a nonjury trial, after a full consideration of the evidence.

Certain forms of provocation that frequently arise have traditionally been considered reasonable or unreasonable by the courts. A killing that results from anger that is induced by a violent blow with a fist or weapon might constitute sufficient provocation, provided the accused did not incite the victim. It is not reasonable, however, to respond similarly to a light blow. A killing that results from mutual combat is often considered manslaughter, provided it was caused by the heat of passion aroused by the combat. An illegal arrest of one who knows of or believes in his or her innocence may provoke a reasonable person, although cases are in dispute on the issue of whether such an arrest would justify a killing. An attempt to make a legal arrest in an unlawful manner by the use of unnecessary violence might also constitute a heat of passion killing that will mitigate an intentional killing. Some cases have held that a reasonable belief that one's spouse is committing adultery will suffice. An injury to persons in a close relationship to the accused, such as a spouse, child, or parent, is often held to constitute reasonable provocation, particularly when the injury occurs in the accused person's presence.

Mere words or gestures, although extremely offensive and insulting, have traditionally been viewed as insufficient provocation to reduce murder to manslaughter. There is, however, a modern trend in some courts to hold that words alone will suffice under certain circumstances, such as instances in which a present intent and ability to cause harm is demonstrated.

The reasonable person standard is generally applied in a purely objective manner. Unusual mental or physical characteristics are not taken into consideration. The fact that a defendant was more susceptible to provocation than an average person because he or she had a previous head injury is not relevant to a determination of whether the person's conduct was reasonable. There has, however, been a trend in some cases that indicates a willingness to consider some subjective factors.

If a reasonable period of time passed between the provocation and the killing so that the defendant had sufficient time to cool off, a homicide will not be reduced to manslaughter. Most courts will reduce the charge if a reasonable person would not have cooled off. Some, however, look solely at the defendant's temperament and make a subjective decision as to whether the person had sufficient time to regain self-control.

In some states, there is a case-law trend in which a killing that is committed under a mistaken belief that one is justified constitutes voluntary manslaughter. It is reasoned that although the crime is not justifiable, it is not serious enough to be murder.

It is a general rule that a defendant who acts in self-defense may only use force that is reasonably calculated to prevent harm to himself or herself. If the person honestly, but unreasonably, believes deadly force is necessary and, therefore, causes another's death, some courts will consider the crime voluntary manslaughter. Similarly when a defendant acts under an honest but unreasonable belief that he or she has a right to kill another to prevent a felony, some courts will find the person guilty of voluntary manslaughter. Although it is generally considered a crime to kill another in order to save oneself, the justification of coercion or necessity may, likewise, reduce murder to manslaughter in some jurisdictions.

Involuntary Manslaughter

Involuntary manslaughter is the unlawful killing of another human being without intent. The absence of the intent element is the essential difference between voluntary and involuntary manslaughter. Also in most states, involuntary manslaughter does not result from a heat of passion but from an improper use of reasonable care or skill while in the commission of a lawful act or while in the commission of an unlawful act not amounting to a felony.

Generally there are two types of involuntary manslaughter: (1) criminal-negligence manslaughter; and (2) unlawful-act manslaughter. The first occurs when death results from a high degree of negligence or recklessness, and the second occurs when death is caused by one who commits or attempts to commit an unlawful act, usually a misdemeanor.

Although all jurisdictions punish involuntary manslaughter, the statutes vary somewhat. In some states, the criminal negligence type of manslaughter is described as gross negligence or culpable negligence. Others divide the entire offense of manslaughter into degrees, with voluntary manslaughter constituting a more serious offense and carrying a heavier penalty than involuntary manslaughter.

Many statutes do not define the offense or define it vaguely in common-law terms. There are, however, a small number of modern statutes that are more specific. Under one such statute, the offense is defined as the commission of a lawful act without proper caution or requisite skill, in which one unguardedly or undesignedly kills another or the commission of an unlawful act that is not felonious or tends to inflict great bodily harm.

Criminally Negligent Manslaughter A homicide resulting from the taking of an unreasonable and high degree of risk is usually considered criminally negligent manslaughter. Jurisdictions are divided on the question of whether the defendant must be aware of the risk. Modern criminal codes generally require a consciousness of risk, although, under some codes, the absence of this element makes the offense a less serious homicide.

There are numerous cases in which an omission to act or a failure to perform a duty constitutes criminally negligent manslaughter. The existence of a duty is essential. Since the law does not recognize that an ordinary person has a duty to aid or rescue another in distress, an ensuing death from failure to act would not be manslaughter. On the other hand, an omission in which one has a duty, such as the failure of a lifeguard to attempt to save a drowning person, might constitute the offense.

When the failure to act is reckless or negligent, and not intentional, it is usually manslaughter. If the omission is intentional and death is likely or substantially likely to result, the offense might be murder. When an intent to kill, recklessness, and negligence are present, no offense is committed.

In many jurisdictions, death that results from the operation of a vehicle in a criminally negligent manner is punishable as a separate offense. Usually it is considered a less severe crime than involuntary manslaughter. Although criminal negligence is an element, it is generally not the same degree of negligence as that which is required for involuntary manslaughter. For example, some vehicular homicide statutes have been construed to require only ordinary negligence while, in a majority of jurisdictions, a greater degree of negligence is required for involuntary manslaughter.

Unlawful-Act Manslaughter In many states, unlawful-act manslaughter is committed when death results from an act that is likely to cause death or serious physical harm to another person. In a majority of jurisdictions, however, the offense is committed when death occurs during the commission or attempted commission of a misdemeanor.

In some states, a distinction is made between conduct that is malum in se, bad in itself and conduct that is malum prohibitum, bad because prohibited by law. In these states, the act that causes the death must be malum in se and a felony in order for the offense to constitute manslaughter. If the act is malum prohibitum, there is no manslaughter unless it was foreseeable that death would be a direct result of the act. In other states that similarly divide the offense, the crime is committed even though the act was malum prohibitum and a misdemeanor, especially if the unlawful act was in violation of a statute that was intended to prevent injury to other persons.


The penalty for manslaughter is imprisonment. The precise term of years depends upon the applicable statute. Usually the sentence that is imposed for voluntary manslaughter is greater than that given for involuntary manslaughter. In most states, a more serious penalty is imposed for criminally negligent manslaughter than for unlawful-act manslaughter.

further readings

Milgate, Deborah E. 1998. "The Flame Flickers, but Burns On: Modern Judicial Application of the Ancient Heat of Passion Defense." Rutgers Law Review 51 (fall): 193–227.

Miller, Emily L. 2001. "(Woman) slaughter: Voluntary Manslaughter, Gender, and the Model Penal Code." Emory Law Journal 50 (spring): 665–93.

Miller, Henry. 1975. Human Error: The Road to Disaster. Chatsworth, Calif.: Canyon Books.


Deadly Force.


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The unjustifiable, inexcusable, and intentional killing of a human being without deliberation, premeditation, and malice. The unlawful killing of a human being without any deliberation, which may be involuntary, in the commission of a lawful act without due caution and circumspection.

Hawaii Reverses Manslaughter Conviction for Newborn's Death from Prenatal Substance Abuse

In a state precedent-setting decision, the Hawaii Supreme Court ruled that women cannot be prosecuted for the death of their children caused by detrimental conduct during pregnancy. State v. Aiwohi, No. 26838 (November 2005). In so ruling, the state high court overturned the manslaughter conviction of 32-year-old Tayshea Aiwohi for the death of her two-day-old son. Medical evidence at trial had linked his death to Aiwohi's drug use during the latter days of pregnancy. The case drew nationwide attention from drug rehabilitation groups and health professionals who feared that such prosecutions might discourage pregnant drug users from seeking treatment and adequate prenatal care.

As background, Aiwohi gave birth to son Treyson on July 15, 2001. At the time of Trey-son's birth, Aiwohi was the mother of four other children and had a lengthy and well-documented history of substance abuse for which she had received various treatments. Although she had been tested for drug use during various intervals of her pregnancy, it appeared that she had not been tested in the weeks just prior to Treyson's delivery. Following his birth at a local hospital, she was permitted to breastfeed the baby several times on July 15 and 16. She was discharged from the hospital at approximately 7:00 p.m. on July 16. She reported that she breastfed the baby once more at approximately 1:30 a.m. on July 17; the family then went to sleep, apparently newborn with parents. She further reported that her husband later awakened her and told her that the baby was not breathing. They called 911, and an ambulance transported the baby to Castle Medical Center, where Treyson was pronounced dead at 6:32 a.m. on July 17.

The city medical examiner's office testified before a grand jury that high levels of metham-phetamine and amphetamine were found in the baby's body. The autopsy report indicated that death was caused by these drugs, consistent with exclusive prenatal exposure through the mother. The medical examiner further testified that there was no evidence of disease or disorder, or any evidence of accidental death by suffocation caused by an adult sleeping in the same bed as the baby.

On August 29, 2001, the chief investigator for the Department of the Medical Examiner telephoned Aiwohi and specifically queried her about her use of crystal methamphetamine during her pregnancy. Aiwohi began to cry and admitted to smoking crystal methamphetamine on July 12, 13 and 14, as well as one "hit" on July 15, the morning of Treyson's birth.

Aiwohi waived trial and pleaded no contest to manslaughter under Hawaii Revised Statute §§707-702(1)(a)(which is part of the Hawaii Penal Code) on condition that she could appeal the circuit court's refusal to dismiss the charges based on defense counsel's Motion to Dismiss Indictment, which was denied. The case was appealed directly to the Hawaii Supreme Court from the First Circuit Court (FC-CR. No. 03-1-0036)

On appeal, Aiwohi raised several constitutional issues, including that (1) HRS §§707-702(1)(a) was vague and failed to provide fair notice (of proscribed conduct), in violation of Hawaii's and the U.S. Constitution, 14th Amendment; (2) prosecution for manslaughter interfered with an expectant mother's fundamental right to procreate; (3)the prosecution was an unconstitutional expansion of §§707-702(1)(a); and (4)Aiwohi was unconstitutionally denied her right to present a defense when the circuit court rejected her common-law defense of immunity for an expectant mother's prenatal conduct.

In its 38-page opinion, the Hawaii Supreme Court first discussed whether Aiwohi's prosecution for manslaughter was consistent with the plain meaning of HRS §§707-702(1)(a). That provision holds a person guilty of manslaughter if that person "recklessly causes the death of another person." In order to be guilty of manslaughter, said the court, Aiwohi must have "acted … recklessly … with respect to each element of the offense." HRS §§707-704.

After a lengthy discussion of "attendant circumstances," the court went on to note that the Model Penal Code (from which the Hawaii Penal Code was substantially derived) requires that a defendant's conduct must occur at a time when the victim is within the class contemplated by the legislature.

Although Aiwohi's prenatal conduct may have proximately caused the newborn's death, her conduct occurred at the time when Treyson was a fetus within her womb. The Hawaii Penal Code (HPC) §§707-700 defines a "person" as "[a] human being who has been born and is alive." "According to the plain language of the HPC," concluded the court, "a fetus is not included within the definition of 'person,'" and therefore, not within the class contemplated by the legislature.

The court concluded that, as a result of that classification, Aiwohi could not have had the requisite state of mind because she could not contemplate causing the death of another "person." The court noted that the provisions of the HPC "cannot be extended by analogy so as to create crimes not provided for herein." Moreover, resolution of this first issue disposed of the entire case, concluded the court. Therefore, the court did not address the other challenges raised by Aiwohi in her appeal.

In conclusion, the court held that a mother's prosecution for her own prenatal conduct, which caused the death of a baby subsequently born alive, was not within the clear meaning of HRS §§707-702(1)(a). Therefore, the circuit court erred in denying defense's Motion to Dismiss, and the "Amended Judgment Guilty Conviction and Probation Sentence, filed on October 4, 2005, was reversed.


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man·slaugh·ter / ˈmanˌslôtər/ • n. the crime of killing a human being without malice aforethought, or otherwise in circumstances not amounting to murder: the defendant was convicted of manslaughter.


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manslaughter Crime of killing another person either accidentally or for humane motives. Manslaughter merits less punishment than murder.

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