9.1: Homicide

Not all homicides are created equal. In this chapter, we explore criminal homicide and its varying degrees of culpability. Murder, manslaughter, and criminally negligent homicide are all criminal homicides. All three require the same physical act – an unlawful killing of a human being. What separates the offenses is the mental state of the perpetrator.

At common law, murder was the unlawful killing of another with malice aforethought. Manslaughter, on the other hand, was the unlawful killing without malice. Modern criminal codes include criminally negligent homicide, which occurs when one’s lack of awareness of the risk of death is the direct and proximate cause of another’s unlawful death. We will explore how Alaska defines each degree of homicide shortly. Finally, suicide – where one kills oneself – is legal, whereas assisted suicide, including physician-assisted suicide, is generally illegal.

Homicide

Homicide is the killing of one human being by another. See Black’s Law Dictionary (6th ed. 1990). Not all homicide is unlawful. For example, capital punishment is homicide, but not criminal homicide. A homicide becomes criminal if it results from an unlawful killing – put another way, unlawful killings are killings that are not “justifiable” or “excusable.” This distinction has its roots in common law. At common law, homicide was classified as justifiable, excusable, or felonious. Justifiable homicides were not criminal because they were not committed with “an evil intent,” but instead, under circumstances of necessity or duty. Similarly, excusable homicides were not criminal since they were committed with minimal guilt. Felonious homicide is the wrongful killing of another without justification or excuse. Modern criminal codes have largely kept this distinction. Under Alaska’s criminal code, all unjustified forms of killing are deemed felonies. This includes both intentional and unintentional killings.

Actus Reus and Homicide

The actus reus of criminal homicide, depending on the jurisdiction, is the “unlawful killing of a person” or “causing the death of another person.” Two important, interrelated questions surround the actus reus: when does life begin and when does life end?

When life begins… when life ends …

The victim of homicide must be a living person. Thus, shooting a dead body is not homicide (but it may be a lesser crime). See e.g., AS 11.61.130(a). Alaska defines a “person” as a human being who has been born and was alive at the time of the criminal act. A person is “alive” if they have either spontaneous respiratory or cardiac function, or have spontaneous brain function, even though respiratory and cardiac function are maintained by artificial means. AS 11.41.140. In other words, Alaska has adopted the “brain death” test for determining death. Alaska has rejected the alternate test – proof of the irreversible cessation of circulatory and respiratory function – due to medical improvements. With advancements in medical science and technology, a person’s heartbeat and respiration may be maintained mechanically even if all brain function is irreversibly lost. To be “alive” a person must be born with spontaneous brain function. This definition necessarily excludes legal abortions.

Fetuses receive special protection under Alaska law. Alaska criminalizes the murder, manslaughter, or negligent homicide of an “unborn child.” AS 11.41.150-180. An “unborn child” is a fetus, at any stage of development, carried in the womb that is not born alive, but excludes legal abortions and other standardized medical procedures. AS 11.41.180; 11.81.900(b)(66). In some jurisdictions this is referred to as feticide. Feticide is the intentional destruction of a fetus.

Year-and-a-day rule

The now abolished common law determination of death was the year-and-a-day rule. The rule created a timeline for the victim’s death to constitute murder. The homicide victim needed to die within a year-and-a-day of the defendant’s act for the defendant to be criminally responsible. If the victim did not die within the time limit, the defendant could be charged with attempted murder, but not criminal homicide. All jurisdictions have now abolished the rule and have instead adopted traditional causation principles to determine death. See e.g., Tennessee v. Rogers, 992 S.W.2d 393 (Tenn. 1999). Death timeline rules should not be confused with the statute of limitations, which is the time limit the government has to prosecute a criminal defendant. (In Alaska, a criminal homicide prosecution may be commenced at any time; there is no statute of limitations.)

Suicide

At common law, suicide was a crime. Modern criminal codes do not criminalize suicide. However, numerous jurisdictions, including Alaska, criminalize assisting suicide. A person commits the crime of manslaughter if a person “intentionally aids another person to commit suicide.” AS 11.41.120(a)(2). The crime includes physician-assisted suicides; physicians receive no special protection under the criminal law. The Alaska Supreme Court has upheld the constitutionality of the criminal statute even in the face of terminally ill patients seeking to end their lives with the assistance of a physician. See Sampson v. State, 31 P.3d 88 (Alaska 2001). A minority of states (e.g., Oregon) allow terminally ill patients to seek the assistance of a physician to commit suicide.

In Sampson, the Alaska Supreme Court noted that physician-assisted suicide is not a fundamental right under the Alaska Constitution. Instead, the government has significant interests in prohibiting physician-assisted suicide, including preserving human life, protecting vulnerable persons, protecting the integrity of the medical profession, and regulating dangerous activities in the state. See id. Although a physician must honor a patient’s wish to stop life-saving measures, a physician may not intentionally quicken a person’s death.

Exercises

Answer the following question. Check your answer using the answer key at the end of the chapter.

1. What is the fundamental difference between homicide and suicide?