Virginia Murder and Manslaughter Laws
Homicide is the unlawful taking of human life. Criminal homicide in Virginia is defined as Murder or Manslaughter. These are felony crimes under Virginia law and are separated into five types, listed from most serious to least serious:
- Capital murder,
- First-degree murder,
- Second-degree murder,
- Voluntary manslaughter, and
- Involuntary manslaughter.
The Crime of Murder
Murder is killing done with malice. Malice is classically defined as the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will. Murder in Virginia is punished in a few different ways, depending on the intent of the accused and on the status of the victim.
Murder is a felony crime punishable by death penalty, by imprisonment for life, or by up to 40 years in prison. Murder may be reduced to Manslaughter, which is a lesser offense, punishable by a maximum sentence of 10 years in prison.
A homicide is reduced from murder to voluntary manslaughter if the defendant acted “in the heat of passion and upon reasonable provocation.” Heat of passion is determined by the nature and degree of the provocation, and may be founded upon rage, fear, or a combination of both. If it is not the victim of the crime who invoked the defendant’s heat of passion, the heat of passion defense does not apply.
A Virginia judge once wrote:
“Malice aforethought” implies a mind under the sway of reason, whereas “passion” whilst it does not imply a dethronement of reason, yet is the furor brevis, which renders a man deaf to the voice of reason; so that, although the act was intentional of death, it was not the result of malignity of heart, but imputable to human infirmity. Passion and malice are, therefore, inconsistent motive powers, and hence an act which proceeds from the one, cannot also proceed from the other.
Penalties for Virginia Murder and Manslaughter Convictions
| Second Degree Murder | 5–40 years |
| Manslaughter | 1–10 years |
| First Degree Murder | Between 20 years and life imprisonment |
| Capital Murder | Death Penalty or Natural Life |
Murder Defense Attorney Consultation
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This article is written by Award-Winning Virginia Criminal Defense Attorney Marina Medvin, law offices in Alexandria and in Fairfax. If you are being investigated of murder or manslaughter, or if a loved one has been arrested for murder or manslaughter, time is of the essence. Call us to inquire about a consultation.
Defense to Murder
The law of self-defense is the law of necessity, and the necessity relied upon must not arise out of the defendant’s own misconduct. Accordingly, a defendant must reasonably fear death or serious bodily harm to himself at the hands of his victim.
It is not essential to the right of self-defense that the danger should in fact exist. If it reasonably appears to a defendant that the danger exists, he has the right to defend against it to the same extent, and under the same rules, as would obtain in case the danger is real. A defendant may always act upon the reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted. What reasonably appeared to the accused at the time of the shooting, as creating the necessity for his act, is the test and not what reasonably appeared to him, provided it would so appear to some other reasonable person under similar circumstances.
The court instructs the jury that where a killing is proved by the use of a deadly weapon, and the accused relies upon the plea of self-defense, the burden of proving such defense rests upon the accused; the burden resting upon an accused relying upon the right of self defense is to establish such defense, not beyond a reasonable doubt, nor even by the greater weight of the evidence, but only to the extent of raising in the minds of the jury a reasonable doubt as to whether or not he acted in the lawful exercise of such right. And, in determining whether or not such defense has been established, the jury should consider all of the evidence and circumstances in the case, that for the Commonwealth as well as that for the accused.
Virginia Self Defense and Use of Force Laws, Defense of Excessive Police Use of Force
The Crime of Manslaughter
Voluntary manslaughter and involuntary manslaughter are both class 5 Felony offenses, punishable by up to 10 years of prison. Manslaughter is the unlawful killing of another without malice.
Voluntary manslaughter is defined as an intentional killing committed while in the sudden heat of passion upon reasonable provocation. As discussed above, Murder may be reduced to voluntary manslaughter upon the jury finding that the homicide was committed in the heat of the moment, and not planned in advance.
Involuntary manslaughter is the killing of one accidentally, contrary to the intention of the parties, in the prosecution of some unlawful, but not felonious, act; or in the improper performance of a lawful act. The improper performance of a lawful act proximately causing an accidental killing is insufficient for involuntary manslaughter, unless that improper performance constitutes criminal negligence. The improper performance of the lawful act, to constitute involuntary manslaughter, must amount to an unlawful commission of such lawful act, not merely a negligent performance. The negligence must be criminal negligence. The accidental killing must be the proximate result of a lawful act performed in a manner so gross, wanton, and culpable as to show a reckless disregard of human life.
Traffic accidents resulting in death commonly fall into this category and are left for the jury to decide whether the accident was simple negligence or criminal negligence yielding involuntary manslaughter. Involuntary manslaughter in the operation of a motor vehicle is defined as the accidental killing which, although unintended, is the proximate result of negligence so gross, wanton, and culpable as to show a reckless disregard of human life.
Virginia Murder and Manslaughter Laws and Penalties
§ 18.2-30. Murder and manslaughter declared felonies.
Any person who commits capital murder, murder of the first degree, murder of the second degree, voluntary manslaughter, or involuntary manslaughter, shall be guilty of a felony.
§ 18.2-31. Capital murder defined; punishment.
The following offenses shall constitute capital murder, punishable as a Class 1 felony:
1. The willful, deliberate, and premeditated killing of any person in the commission of abduction, as defined in § 18.2-48, when such abduction was committed with the intent to extort money or a pecuniary benefit or with the intent to defile the victim of such abduction;
2. The willful, deliberate, and premeditated killing of any person by another for hire;
3. The willful, deliberate, and premeditated killing of any person by a prisoner confined in a state or local correctional facility as defined in § 53.1-1, or while in the custody of an employee thereof;
4. The willful, deliberate, and premeditated killing of any person in the commission of robbery or attempted robbery;
5. The willful, deliberate, and premeditated killing of any person in the commission of, or subsequent to, rape or attempted rape, forcible sodomy or attempted forcible sodomy or object sexual penetration;
6. The willful, deliberate, and premeditated killing of a law-enforcement officer as defined in § 9.1-101, a fire marshal appointed pursuant to § 27-30 or a deputy or an assistant fire marshal appointed pursuant to § 27-36, when such fire marshal or deputy or assistant fire marshal has police powers as set forth in §§ 27-34.2 and 27-34.2:1, an auxiliary police officer appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733, an auxiliary deputy sheriff appointed pursuant to § 15.2-1603, or any law-enforcement officer of another state or the United States having the power to arrest for a felony under the laws of such state or the United States, when such killing is for the purpose of interfering with the performance of his official duties;
7. The willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction;
8. The willful, deliberate, and premeditated killing of more than one person within a three-year period;
9. The willful, deliberate, and premeditated killing of any person in the commission of or attempted commission of a violation of § 18.2-248, involving a Schedule I or II controlled substance, when such killing is for the purpose of furthering the commission or attempted commission of such violation;
10. The willful, deliberate, and premeditated killing of any person by another pursuant to the direction or order of one who is engaged in a continuing criminal enterprise as defined in subsection I of § 18.2-248;
11. The willful, deliberate, and premeditated killing of a pregnant woman by one who knows that the woman is pregnant and has the intent to cause the involuntary termination of the woman’s pregnancy without a live birth;
12. The willful, deliberate, and premeditated killing of a person under the age of fourteen by a person age twenty-one or older;
13. The willful, deliberate, and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism as defined in § 18.2-46.4;
14. The willful, deliberate, and premeditated killing of a justice of the Supreme Court, a judge of the Court of Appeals, a judge of a circuit court or district court, a retired judge sitting by designation or under temporary recall, or a substitute judge appointed under § 16.1-69.9:1 when the killing is for the purpose of interfering with his official duties as a judge; and
15. The willful, deliberate, and premeditated killing of any witness in a criminal case after a subpoena has been issued for such witness by the court, the clerk, or an attorney, when the killing is for the purpose of interfering with the person’s duties in such case.
If any one or more subsections, sentences, or parts of this section shall be judged unconstitutional or invalid, such adjudication shall not affect, impair, or invalidate the remaining provisions thereof but shall be confined in its operation to the specific provisions so held unconstitutional or invalid.
§ 18.2-32. First and second degree murder defined; punishment.
Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary or abduction, except as provided in § 18.2-31, is murder of the first degree, punishable as a Class 2 felony.
All murder other than capital murder and murder in the first degree is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five nor more than forty years.
§ 18.2-33. Felony homicide defined; punishment.
The killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act other than those specified in §§ 18.2-31 and 18.2-32, is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five years nor more than forty years.
§ 18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.
If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
§ 18.2-35. How voluntary manslaughter punished.
Voluntary manslaughter is punishable as a Class 5 felony.
§ 18.2-36. How involuntary manslaughter punished.
Involuntary manslaughter is punishable as a Class 5 felony.
§ 18.2-36.1. Certain conduct punishable as involuntary manslaughter.
A. Any person who, as a result of driving under the influence in violation of clause (ii), (iii), or (iv) of § 18.2-266 or any local ordinance substantially similar thereto unintentionally causes the death of another person, shall be guilty of involuntary manslaughter.
B. If, in addition, the conduct of the defendant was so gross, wanton and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.
C. The provisions of this section shall not preclude prosecution under any other homicide statute. This section shall not preclude any other revocation or suspension required by law. The driver’s license of any person convicted under this section shall be revoked pursuant to subsection B of § 46.2-391.
§ 18.2-36.2. Involuntary manslaughter; operating a watercraft while under the influence; penalties.
A. Any person who, as a result of operating a watercraft or motorboat in violation of clause (ii), (iii), or (iv) of subsection B of § 29.1-738 or a similar local ordinance, unintentionally causes the death of another person, is guilty of involuntary manslaughter.
B. If, in addition, the conduct of the defendant was so gross, wanton, and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.
C. The provisions of this section shall not preclude prosecution under any other homicide statute. The court shall order any person convicted under this section not to operate a watercraft or motorboat that is underway upon the waters of the Commonwealth. After five years have passed from the date of the conviction, the convicted person may petition the court that entered the conviction for the right to operate a watercraft or motorboat upon the waters of the Commonwealth. Upon consideration of such petition, the court may restore the right to operate a watercraft or motorboat subject to such terms and conditions as the court deems appropriate, including the successful completion of a water safety alcohol rehabilitation program described in § 29.1-738.5.
