3

Introduction
Manslaughter is something that is reasonably common in the country, but it is a bit different
from the imagination we have built around the idea of “killing someone”, which defines
homicide. The vast majority of people imagine an act of murder, not that someone purposely
commits violence against another person. This is an image socially constructed by culture and
fear of urban violence. But the truth is that the vast majority of the population, especially without
any type of involvement in crime and violence, is much closer to a type of homicide that does
not even concern the intention of killing someone.

It seems like a nightmare or a movie plot: an ordinary citizen accused of a murder he never
wanted to commit, without having made any decision that he knew would lead to someone's
death. But that is, in fact, the classic definition of manslaughter.

Main goal
 Focus on manslaughter.

Specific objectives

 Define the guiding concepts of the theme;

 Mention manslaughter;
 Characterize culpable homicide.

Methodology

By methodology, we understand a set of procedures with which research is carried out. In this
work, we resorted to a bibliographical research.
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Manslaughter
According to BITENCOURT (2017), Manslaughter is the type of crime in which a person causes
the death of another unintentionally, but through negligence, recklessness or malpractice. It is
characterized by a lack of intent to kill but a breach of the duty of care. Manslaughter is when
someone causes the death of another person without intending to kill, but through negligence,
recklessness or incompetence.

In Brazilian law, homicide is nothing more than the act of “killing someone”. In this way, every
individual who kills someone is a homicide. However, it is enough to reflect a little on the
subject to understand that “killing someone” is a very broad term. The person who points a
firearm at another and pulls the trigger killed someone. The one who cut a tree and didn't
correctly consider its path and ended up causing someone's death in the fall also killed someone.
Although the act is the same, the two situations are very different (Idem).

This is where the term “culpable” comes in. A culpable act is one that has no willful relationship
with its consequence. In other words, the culpable act presupposes responsibility, but not will.
Thus, there are three ways in which a culpable act is carried out:

 For recklessness, which is when a person performs a certain act that is clearly risky and
should not be taken in a certain situation, such as lighting a cigarette near fuel;
 Due to negligence, which is when a person fails to take the necessary precautions to
ensure that everything is safe? This is an example of those who leave loaded firearms in
plain view at home, without any type of protection against children;
 Due to malpractice, which is when a person carries out an action without having the
necessary technique or knowledge to do so, causing the event for which they are
responsible? This is an example of someone trying to operate a complex machine with
which they have never had contact or training (Idem).

Manslaughter occurs when there is no desire to kill, however, due to carelessness, whether due to
imprudence, incompetence or even negligence, a person ends up taking the life of another. The
crime of culpable homicide differs from that provided for in the caput of article 121 of the Penal
Code. In the caput, we talk about simple homicide, in which a human being voluntarily kills
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another human being. In this sense, there is the practice of voluntary and involuntary homicide.
And it is precisely the latter that culpable homanslaughter?

A situation in which a person takes the life of another without intention is classified as
manslaughter. The guilt is unconscious and the murder occurs due to negligence, recklessness or
incompetence. Manslaughter is provided for in article 121, §3 of the Brazilian Penal Code.

Types of guilt
After the elements of this type of irregularity have been analyzed, we now begin to analyze its
form, which is actually a way of ignoring this duty of care, which is provided for in article 28,
item II of the Penal Code: imprudence, negligence and malpractice.

When establishing the modalities of guilt, the Brazilian legislator took great care in technical
precisions (distinguishing imprudence, negligence and malpractice), which present little or
almost no practical results. In both imprudence and negligence, there is a failure to observe the
precautions recommended by common experience in the dynamic exercise of daily human life.
And malpractice, in turn, is still just a special form of imprudence or negligence.

Of Recklessness
Those who practice reckless attitudes are considered to be those bold agents who counteract with
reckless attitudes that other people should adopt for a safe social life. Here the agent has attitudes
and ways of acting that are not recommended, without a minimum of caution. According to
Bitencourt:

Recklessness is the practice of risky or dangerous conduct and is commissive in nature. It is

active unpredictability (culpa in faciendo or in committendo). Reckless conduct is that which is
characterized by the agent's untimeliness, rashness, foolishness or immoderation. An example is
the reckless driver who, drunk, travels driving his motor vehicle, with a visible reduction in his
reflexes and a marked release of his inhibitory brakes. In imprudence there is a visible lack of
attention, careless acting does not observe the objective duty and due caution that the factual
circumstances require. If the agent is more attentive, he will be able to predict the result, using
his inhibitory brakes, and thus not carry out the harmful action.
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From Negligence

A person who practices negligence is an agent who fails to take the necessary precautions to
ensure that his or her conduct does not harm the legal interests of a third party. Here the agent
fails to do something he should. According to the indoctrinator Cezar Roberto Bitencourt:

Negligence is carelessness in acting, lack of precaution, indifference on the part of the agent,
who, despite being able to take the necessary precautions, does not do so. It is passive
unpredictability, carelessness, inaction (culpa in ommittendo). It is not doing what should have
been done before the careless action. A bus driver who drives with the bus doors open, causing
the fall and death of a passenger, will be negligent, for example. In this case, the driver failed to
close the doors before moving the vehicle, causing the unwanted death.

From Malpractice

It arises from knowledge of a professional technical rule. Thus, if the doctor, after carrying out
all the necessary tests, gives the wrong diagnosis, discharging the patient and the patient dies as a
result of this discharge, there is no negligence, as the medical professional adopted all and any
necessary precautions, but if in Due to his lack of technical knowledge, he was unable to
determine what the patient's problem was, which ended up causing his death.

Species of guilt
Conscious guilt
It will be when he presents the guilt with foresight. The agent predicts the result, but firmly
believes that it will not occur, continuing his conduct. (MASSON, 2020)

Unconscious guilt

In which the result is not predicted by the agent, although objectively predictable. In other words,
that common, normal guilt, manifested by imprudence, negligence or malpractice. (MASSON,
2020).
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Improper guilt

In which the agent wants the result, his will being vitiated by an error that he could avoid by
observing the necessary care. (MASSON, 2020)

Own fault

It is when the agent does not want the result nor assume the risk of producing it. It is, so to speak,
guilt itself. (MASSON, 2020).

Prevention of manslaughter

To prevent manslaughter, it is important to adopt the following measures:

 Practice defensive driving and respect traffic laws, avoiding speeding, driving under the
influence of alcohol or drugs, and using appropriate safety devices;
 Handle firearms responsibly, following all safety standards and proper storage;


Pay attention and care when carrying out activities that may pose a risk to the lives of other
people, such as working at heights, handling dangerous substances or providing medical
services;

 Keep up to date with the rules and regulations relevant to your area of professional
activity to avoid errors and negligence;
 Promote awareness of the importance of safety and respect for life, both at an individual
and collective level (Idem).

Remembering that preventing manslaughter requires the engagement of all individuals in society
in adopting responsible and respectful behaviors in relation to human life (Idem).

Causes of manslaughter

The causes of manslaughter can vary, but generally involve negligence, recklessness or
incompetence on the part of the perpetrator. Some examples of common causes include speeding
in traffic, driving under the influence of alcohol or drugs, carelessness when handling firearms or
negligence in providing medical care (Genoa, 2004).
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Characteristics of manslaughter

Some characteristics of manslaughter include:

 Lack of intention to kill: Unlike intentional homicide, in culpable homicide there is no

intention to cause the death of the victim;
 Unintentional cause: The victim's death occurs as a result of negligent, reckless or
impermissible actions by the perpetrator, without there being the direct intention to cause
the death;
 Violation of duty of care: The perpetrator of manslaughter fails to comply with the duty
of care expected in a given situation, resulting in the death of the victim;
 Criminal liability: Although it is a less serious form of crime in relation to intentional
homicide, culpable homicide can still result in criminal liability for the perpetrator,
subject to legal sanctions (Idem).

Penalties for manslaughter

In case of manslaughter, the defendant can be sentenced to between 1 and 3 years in prison.
According to article 33 of the Penal Code, if the accused is not a repeat offender, the sentence
can be served in an open regime. As we have seen, the base penalty for manslaughter is 1 to 3
years in prison. However, this penalty can be increased or decreased in some cases (GRECO,
2013).

 Increase in penalty: if the agent does not provide assistance to the victim; if he flees to
avoid arrest in the act; if you had permission or qualification to drive a vehicle; if he
practiced medical activity without legal authorization; if it failed to follow technical
standards; whether the risk was unduly increased;
 If the crime was committed against a person under 14 years old or over 60 years old; if he
committed the crime under the influence of alcohol or drugs.
 Reduction of the sentence: if the consequences of the crime are so serious that the
sentence becomes unnecessary or excessive; if the agent spontaneously confesses his
guilt; whether it cooperates with investigations; effective repentance is demonstrated
(Idem).
 However, the penalty may be increased by up to 1/3 (one third) in cases where:
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 If it is proven that the subject did not follow basic safety rules or techniques;
 If the subject did not provide immediate assistance to the victim;
 The subject did not seek to reduce the consequences of his actions.

Hypotheses of application of judicial pardon in culpable homicide

Judicial pardon is recognized by Brazilian Law and its role is to extinguish the punishability of
the agent. In turn, the crimes that allow for judicial pardon are: culpable homicide and the crime
of culpable bodily injury. However, whenever the repercussions of the homicide or bodily injury
(both negligent) are serious and relevant in such a way that they affect the perpetrator in an
intense and serious way, the punishment will be dispensable.

Judicial pardon as a way of extinguishing punishment and summary 18 of the Superior Court of
Justice, judicial pardon regarding its admissibility in the crime of culpable homicide,
admissibility of judicial pardon in the crime of culpable bodily injury, traffic offenses and the
admissibility of pardon judicial. These are all hypotheses in which the judge may stop applying
the penalty.

Advantages and disadvantage of manslaughter

Manslaughter has no advantages, as it involves the loss of a human life due to the negligence,
recklessness or incompetence of the perpetrator. However, it is important to highlight that
culpable homicide is considered a less serious form of crime compared to intentional homicide,
as there is no intention to kill. The disadvantages of manslaughter are the pain and suffering
caused to the victim's family, as well as the legal and social consequences for the perpetrator
(Idem).
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Conclusion
At the end of the work it is clear that culpable homicide is provided for in article 121, paragraph
3, of the Penal Code. It occurs when someone kills another person unintentionally, but because
of reckless, negligent or negligent conduct. In other words, the perpetrator does not intend to kill,
but acts carelessly, irresponsibly or without the necessary skill to avoid the result of death. An
example of negligent homicide is the case of a driver who runs over and kills a pedestrian while
driving at high speed or under the influence of alcohol. Judicial pardon as a way of extinguishing
punishment and summary 18 of the Superior Court of Justice, judicial pardon regarding its
admissibility in the crime of culpable homicide, admissibility of judicial pardon in the crime of
culpable bodily injury, traffic offenses and the admissibility of pardon judicial. These are all
hypotheses in which the judge may stop applying the penalty
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Bibliographic references
BITENCOURT, Cezar Roberto (2017). Treatise on Criminal Law - Special Part - Vol. 2 – ed.
17th, ed. Hail.

GRECO, Rogério (2013). Criminal Law Course / Rogério Greco. – 15. ed. Rio de Janeiro:
Impetus.

Genoa, Jairo José (2004). Judicial forgiveness for traffic crimes and crimes with less offensive
potential. IBCCRIM, January 5th.
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Table of Contents
Introduction.................................................................................................................................................3

Main goal....................................................................................................................................................3

Manslaughter...............................................................................................................................................4

Types of guilt..............................................................................................................................................5

Of Recklessness...........................................................................................................................................5

Species of guilt............................................................................................................................................6

Conscious guilt............................................................................................................................................6

Conclusion.................................................................................................................................................10

Bibliographic references............................................................................................................................11