OMICIDIO. — From the Latin homicidium, it is, in general, the killing of a man. Nevertheless, not every killing constitutes homicide; even in ordinary language, the term homicide refers to a killing determined by unlawful conduct; and, juridically speaking, this is the only acceptable meaning. Homicide is in fact a crime and as such consists of various elements: the conduct (act or omission) of one man, the death of another man (event), a causal link between conduct and event (causal relationship), the absence of any justification (the exercise of a right, the fulfilment of a duty, legitimate self-defence, a state of necessity, and uncodified causes such as medical-surgical treatment and sporting activities), and the voluntary nature of the act. The latter, which represents the degree of the agent’s psychological participation in his act, may take three forms: intent, negligence, or praeterintentionality, depending on whether the death was intended, occurred through imprudence, negligence, or incompetence, or resulted from deliberate blows or injuries.
I. SYSTEMATICS OF THE CURRENT ITALIAN CODE
The Italian Penal Code, according to a systematics that is virtually uncontested, places homicide among offences against the person and, more precisely, among offences against life and individual safety (chapter I of title XII of book II). In homicide, in fact, the object of criminal-law protection consists in the interest that every individual and the State have in respect for human life.Homicide, understood as the unlawful killing of a human being, is provided for in the Italian Code in various forms, each constituting an autonomous category of offence, depending on the different attitudes that the subjective element may assume in the person who kills. In the regulation of the subject, no few innovations were introduced in comparison with the previous code: the principal ones are represented by the provision for homicide of a consenting person and for feticide for reasons of honour, which has been fully equated with infanticide for reasons of honour. In addition to the juridical object already mentioned, there are various elements common to the different forms of homicide. In this regard, it should be stressed that homicide is in every case an offence involving a result: its consummation requires, in fact, the occurrence of that natural event which is the death of the passive subject. This event is so characteristic that, for none of the forms of homicide, has the legislator specified the elements of the conduct, contenting himself with indicating the material element of the offence through the formula «to cause the death of a human being». This formula highlights the need for a causal relationship between the conduct of the active subject and the result, which means that, for the purposes of committing homicide, the particular manner in which the conduct is carried out is immaterial: it may be manifested in any way (including omission, as, for example, in the case of a mother who fails to provide nourishment to her child) and by any means. This does not, however, imply that the manner of the conduct is entirely irrelevant: it may carry weight for the purposes of applying certain aggravating or mitigating circumstances.
As for attempt, it is possible in every form of homicide, except, naturally, in the case of preterintentional or negligent homicide. If, although homicide remained at the stage of attempt, injuries were inflicted upon the passive subject, these would be absorbed into the more serious offence of attempted homicide.
For reasons of political expediency, attempts on the life of the President of the Republic, the Supreme Pontiff, and the heads of foreign States are treated separately (arts. 276, 295) as offences against the personality of the State.
II. VOLUNTARY HOMICIDE
Under Art. 575 of the Penal Code, “whoever causes the death of a man shall be punished by imprisonment for not less than 21 years.” That this article provides for the case of voluntary, that is, intentional, homicide may be inferred both from the general provision of Art. 42 and from comparison with the subsequent provisions of Arts. 584 and 589, which, by independently providing for preterintentional and negligent homicide, evidently restrict the scope of Art. 575 to cases in which the subjective element of homicide takes the form of intent. Voluntary homicide therefore occurs when the active subject has acted with the conscious will to cause the death of a man.“Man” must be understood to mean any living human being, including the fetus during the period of childbirth, that is, the being in the process of being born. Nor is it necessary that the newborn child or fetus be viable: just as the Civil Code (Art. 1) does not require viability for the existence of a person, so the Penal Code protects the newborn child and the fetus simply by virtue of their being alive. The existence of life is ordinarily established through the simple fact of respiration.
The broad interpretation that leads to including within the term “man,” and consequently within the definition of homicide, the fetus during the period of childbirth was reached by the prevailing doctrine on the grounds that otherwise the repugnant result would follow of leaving unpunished feticide committed for a reason other than honor: feticide is expressly provided for in the Italian Code only when committed for reasons of honor. Nor could the offense of abortion be found in such conduct, since the interruption of pregnancy is a prerequisite of abortion.
Numerous special aggravating circumstances are provided for voluntary homicide, some of which carry the penalty of life imprisonment (homicide committed against an ascendant or descendant — on this V. the entry PARRICIDIO —, with premeditation, by means of poisonous substances or another insidious means, with torture, for base motives, etc.), and others the penalty of imprisonment from 24 to 30 years (homicide committed against a spouse, brother, sister, adoptive parent, adopted child, or relative by marriage in the direct line).
III. INFANTICIDE OR FETICIDE FOR THE SAKE OF HONOUR
Art. 578 provides: «whoever causes the death of a newborn immediately after delivery, or of a fetus during delivery, in order to save his or her own honour or that of a close relative, shall be punished by imprisonment for a term of 3 to 10 years».The considerable mitigation of the penalty, which can in no way find moral justification, given the abjection of one who destroys a new life, is explained by the perpetrator’s particular emotional state in comparison with that of the ordinary homicide.
The active subject may be the mother or one of her close relatives. The passive subject is either the newborn immediately after delivery (infanticide) or the fetus during delivery (feticide), provided that the child was conceived illegitimately. If the killing of the newborn is not committed immediately after delivery (and “immediately” must be understood not in the sense of “without interruption,” but in the sense of “within a short period”), the honour motive may be considered only as a mitigating circumstance for the offence of homicide. The psychological element consists in the intention to kill the newborn or the child being born (general intent), for the purpose of saving the mother’s honour (specific intent). For this purpose to exist, there must be certainty that the conception was illegitimate, mere suspicion being insufficient, and there must also be an honour to save. This could not be the case, for example, with respect to a prostitute.
IV. HOMICIDE FOR THE SAKE OF HONOUR
This is provided for by Art. 587: “Whoever causes the death of his or her spouse, daughter, or sister, at the moment when he or she discovers her illicit carnal relationship and while in a state of anger provoked by the offence to his or her honour or that of the family, shall be punished by imprisonment from 3 to 7 years. The same penalty shall be incurred by whoever, in the aforementioned circumstances, causes the death of the person who is in an illicit carnal relationship with his or her spouse, daughter, or sister.”The active subject may be only the spouse, parent (including a natural parent), brother, or sister of the person caught in an illicit carnal relationship (thus not the child or the fiancé). The passive subject may be, in addition to the spouse, daughter, or sister, also the person who is in a relationship with them. For the provision to apply, the homicide must be committed at the moment when the illicit carnal relationship is discovered for the first time (it is not necessary that the parties be caught in the act, the mere acquisition of knowledge of the fact being sufficient; this knowledge must, however, be certain, since discovering precisely implies certainty and not mere suspicion) and while in a state of anger provoked by the offence to honour.
According to most scholars, an illicit carnal relationship is to be understood as including not only normal physiological intercourse, but any manifestation of the sexual instinct.
The psychological element consists of simple general intent, no particular purpose on the part of the agent being required.
V. O. DEL CONSENZIENTE. — Under art. 579, “whoever causes the death of a man, with his consent, is punished by imprisonment for 6 to 15 years.”
The good of life is unavailable: it can therefore never be validly surrendered, since the consent of the injured party justifies the offence only when it concerns a right that may be disposed of. In any event, whoever kills a consenting person commits an act that is socially less harmful than ordinary homicide; hence a lighter penalty is prescribed for him.
For consent to have legal significance, it must be valid consent, that is, given by a person possessing capacity to act. The same art. 579 specifies that the provisions concerning voluntary homicide apply when the person killed is: a) a minor under 18 years of age; b) a person of unsound mind or one suffering from a condition of mental deficiency due to another illness or to the abuse of alcoholic or narcotic substances; c) a person whose consent was extorted by the offender through violence, threats, suggestion, or deception.
The criminalization of homicide with the consent of the victim unquestionably excludes, under current Italian law, euthanasia (v.), that is, the merciful death given to an incurably ill person with that person’s consent. Indeed, when the illness has caused the sick person to fall into a condition of mental deficiency, the penalty prescribed for voluntary homicide must even be applied, since in such a case the validity of the consent is excluded by art. 579 itself. The legislator has thus upheld the ethical principle that no one is permitted to bring forward, even slightly, the death of another human being. In the case of a person who has killed for reasons of euthanasia, the mitigating circumstance of motives of particular social value (art. 61, no. 1) may, at most, be applied.
VI. PRETERINTENTIONAL HOMICIDE
According to art. 584, this consists in the conduct of a person who, by acts directed toward committing one of the offences provided for in arts. 581 and 582 (battery and personal injury), causes the death of a human being; it is punishable by imprisonment for 10 to 18 years.Preterintention, which is a particular manner in which the subjective element manifests itself, is provided for in general terms by art. 43, which defines an offence as preterintentional when an event more serious than that intended by the agent results from the action or omission. Preterintentional homicide is characterized precisely by attributing the death to one who intentionally caused merely battery or personal injury, provided that the death occurred as a consequence of the battery or injuries.
Preterintentional homicide essentially falls within the category of offences aggravated by the event. This category includes several other offences in which the increase in punishment likewise results from the occurrence of death, which was not intended but arose from conduct already constituting the elements of an intentional offence. Thus, by express provision of law, a fatal outcome aggravates the offences of abortion, abandonment of a newborn, abuse of disciplinary means, failure to render assistance, etc. Furthermore, art. 586 provides in general terms that, when the death of a person results from an act defined as an intentional offence, as an unintended consequence for which the offender is responsible, the offender is liable for the unintended event on the ground of negligence. Naturally, this article applies in cases where no special provision is applicable.
VII. CULPABLE HOMICIDE
Art. 589 establishes that “whoever, through negligence, causes the death of a man shall be punished by imprisonment from 6 months to 5 years.” Here the act is not intended, but occurs through negligence, imprudence, incompetence, or failure to observe regulations, orders, or rules of conduct. Culpable homicide likewise occurs when the killing of a man results from an inexcusable error: for example, when a hunter carelessly mistakes the movement of another individual for the movements of an animal and consequently fires, killing him; or when a person, believing himself to be under attack, kills the supposed aggressor; or again when an individual kills a petty thief caught stealing in his garden.VIII. CANON LAW
Homicide is a mixi fori offense, with respect to which, in former times, both the Church and the State imposed their own penalties, while reserving the concrete application to whichever of the two authorities had first assumed jurisdiction over the offense itself (ius praeventionis). At present, the punishment of homicide committed by a layperson is entrusted to the civil authorities. That of homicide perpetrated by a cleric would in itself belong to the Church; but since, in practice, clerics are likewise judged by state courts, the ecclesiastical judge must take into account, when imposing the penalty, that already imposed by the lay judge (can. 2223 § 3, n. 2), in order to avoid excessive accumulation.Canon law does not punish negligent homicide. For voluntary homicide, the prescribed penalties are exclusion from legitimate acts and from every ecclesiastical office for laypersons; degradation for clerics (can. 2354); the perpetration of homicide also entails irregularity ex delicto (can. 985, 4°).
For moral questions V. UCCISIONE.