SD34 - Criminally Negligent Homicide

  • Published: 1994
  • Author: Virginia State Crime Commission
  • Enabling Authority: Senate Joint Resolution 333 (Regular Session, 1993)

Executive Summary:
The purpose of Senate Joint Resolution 333 (1993), sponsored by Senator Richard L. Saslaw, was to study the need for adoption of a (lesser) standard for criminally negligent homicide in addition to that which currently exists in Virginia (involuntary manslaughter). The major issues discussed were:

A. Whether, if such a standard were adopted, it should be fashioned from the Model Penal Code definitions or based upon specific instances of negligent behavior (e.g., accidental shootings or speed-related motor vehicle accidents);

B. Whether, in light of recent Virginia appellate court decisions redefining the scienter requirements for involuntary manslaughter, a codified definition of both that crime and criminally negligent homicide would be necessary?

C. Whether the punishment for criminally negligent homicide should be a misdemeanor or a felony (and of what severity [class])?

D. Whether the creation of a ''new crime" might occasionally result in a miscarriage of justice by creating the opportunity for 1) plea-bargaining manslaughter charges to the lesser crime in cases which might otherwise (and more appropriately) be tried and 2) convicting truly innocent defendants of a crime in some cases solely because of the imprecision of the ''new'' definition of criminal negligence, or misapprehension of its meaning.

The subcommittee considered various definitions of criminal negligence and vehicular homicide for possible incorporation into Virginia's scheme. The Model Penal Code was most often referenced as a possible model for Virginia. In general terms, the definitions considered by the subcommittee were as follows:

Model Penal Code Criminal Negligence. ("Gross Negligence") A person acts negligently when he should be aware when his conduct creates a substantial and unjustifiable risk. His failure to perceive it is a gross deviation from the standard of care exercised by a reasonable person. He is guilty of criminally negligent homicide, a third degree felony.

Model Penal Code Involuntary Manslaughter. (Recklessness) A person acts recklessly when he consciously disregards the fact that his conduct creates a substantial and unjustifiable risk and is a gross deviation from the standard of care exercised by a law-abiding person. He is guilty of involuntary manslaughter, a second degree felony.

Virginia Criminal Negligence/Involuntary Manslaughter. A person is guilty of criminal negligence when he engages in negligence so gross, wanton and culpable as to show a reckless disregard of human life and he knows or should know the probable consequences of his conduct. He is guilty of involuntary manslaughter, a Class 5 felony.

Thus, where the Model Penal Code makes a distinction between awareness of conduct and lack of awareness of conduct and imposes a harsher penalty for conscious awareness, recent case law in Virginia has removed this distinction for the purposes of a conviction of involuntary manslaughter. If Virginia were to adopt a level of criminal culpability based on a lesser degree of negligence than is now the law, arguably involuntary manslaughter would have to be codified in order to avoid confusion and to assure its distinction from criminally negligent homicide. Because involuntary manslaughter would have to be codified and because this, itself, could lead to the necessity of codifying or recodifying other homicide laws and because erroneous interpretation of a new criminal negligence statute could result in a criminal conviction for mere negligence, the subcommittee voted to maintain the status quo, i.e., to allow Virginia courts to define the limits of criminal liability for a negligent homicide rather than attempt to legislate them.