Concept
Malum in Se and Malum Prohibitum
Misdemeanor manslaughter
Malum in Se and Malum Prohibitum
Once the unlawful-act category is understood to reach ordinary misdemeanors, some ordinances and regulations, and certain felonies, the next question is whether every one of those violations can carry a homicide charge. Courts have answered no, and their main device is to sort offenses into two kinds. An offense is malum in se when the conduct is wrong in itself by ordinary moral standards, as with battery or theft. An offense is malum prohibitum when the conduct is wrong only because a statute forbids it, as with driving after a license has expired or hunting without a permit. Most courts that follow the unlawful-act rule require either that the misdemeanor be malum in se or, if it is malum prohibitum, that the resulting death have been a foreseeable or natural consequence of the unlawful conduct.1
The sorting matters because of what the doctrine does. Where it applies, manslaughter liability attaches even though the defendant did not act with the recklessness that involuntary manslaughter ordinarily requires, since the deliberate commission of the misdemeanor is treated as supplying the missing culpability.2 That substitution is easy to defend when the offense is itself a moral wrong and much harder to defend when it is a technical violation. In Comber v. United States the District of Columbia Court of Appeals traced the pattern: the original rule reached every misdemeanor, courts came to regard it as too harsh and began placing limits on it, and the concern grew as the number and variety of misdemeanors multiplied far beyond what existed in the early common law.3 The sorting is also not universal, because the division into in se and prohibitum offenses is drawn in many but not all jurisdictions.4
Three positions result, and they form a sequence rather than three rival rules for the same offense. The classification of the offense comes first. A malum in se offense triggers the doctrine in the ordinary way, and for the other kind of offense the jurisdiction chooses between the majority approach, which requires that death have been foreseeable, and the minority approach, which refuses the doctrine altogether. The sections below take these in that order, from the broadest reach to the narrowest, beginning with offenses that are wrong in themselves.
Malum in Se Offenses
When the underlying misdemeanor is malum in se, the usual rule is that a death the defendant unintentionally causes in committing or attempting it is involuntary manslaughter, without any separate inquiry into whether the death was foreseeable.5 The reason becomes clear once you ask what the unlawful-act theory is substituting for. Ordinary involuntary manslaughter demands proof that the defendant was reckless or grossly careless about the risk to life, and the unlawful-act route replaces that proof with the fact that the defendant chose to do something wrong.6 An offense that is wrong in itself carries its own signal of culpability, because a person who commits a battery, steals, or drives while intoxicated knows the conduct is wrongful and, in many cases, dangerous to others. The wrongful choice therefore reasonably stands in for carelessness about a resulting death. With that signal already present, a second showing of foreseeability would demand something the offense has already supplied.
Commonwealth v. Mink shows how far the classification can carry liability. The defendant was attempting suicide when the person engaged to marry her intervened to stop her and was accidentally killed, and because suicide was an unlawful act malum in se, the court found her guilty of manslaughter.7 Drunk-driving decisions apply the same reasoning. An Iowa court in State v. Davis affirmed a manslaughter conviction on the ground that driving while intoxicated is malum in se, so that causing a death by drunken driving is manslaughter, and a Tennessee court in Keller v. State affirmed a conviction where an intoxicated driver killed a pedestrian crossing mid-block whom even a sober driver could not have avoided.8 In Mink and Davis the stated ground was the classification of the offense, and the Keller facts show the practical force of that ground, since the argument that careful driving would not have prevented the death did not save the defendant.
The shortcut has limits that a careful answer should mark. The first is that the classification is a label courts assign, and it varies. Driving while intoxicated is malum in se in Iowa, but driving without a valid license is the kind of offense most jurisdictions that classify at all would treat as malum prohibitum.9 The second is that the label settles the culpability question and leaves the causal question open. In Todd v. State the defendants stole $110 from a church collection plate and fled, and a member of the congregation who chased them by car suffered cardiac dysrhythmia, hit a tree, and died. The Florida court treated the theft as a malum in se misdemeanor and still reversed the manslaughter conviction, because the death was not a foreseeable risk of the theft.10 Students lose this point when they treat the malum in se label as a substitute for causation, because in some jurisdictions the offense must still be connected to the death in a legally sufficient way, a requirement on which courts diverge widely and which the causation section addresses next.
Malum Prohibitum and Foreseeability
Most courts handle the other kind of offense, the malum prohibitum misdemeanor, by adding a requirement: a death during its commission is manslaughter only if the death was a foreseeable result of committing the misdemeanor.12 The reason mirrors the reason for the shortcut above. A violation that is wrong only because the law says so reveals little about the defendant's attitude toward human life, since a person who drives after a license lapses or operates a business without a permit may be entirely unaware of any danger. Because the bare commission of the offense cannot stand in for carelessness, the court looks for the missing connection between the prohibited conduct and the death, and foreseeability supplies it. If a reasonable person would have seen death as a likely consequence of doing what the defendant did, then the violation was dangerous in a way that does reflect on the defendant's indifference to the risk. A category label asks only what kind of offense occurred, while foreseeability asks what the offense actually put in motion.
The test is objective. It is unnecessary that the defendant subjectively saw the possibility of death, since the question is what a reasonable person would have foreseen. Nor must the death of this particular victim, occurring in this particular manner, have been foreseeable; it is enough that the victim belonged to an endangered class and that the death came about in a foreseeable rather than an extraordinary way.13 The requirement is also milder than the one that governs negligent manslaughter without an unlawful act, which asks for a high degree of risk and perhaps awareness of it: a defendant already committing an unlawful act need only create an unreasonable risk of death or serious injury, and need not realize the risk.14 Students lose this issue when they ask what the defendant actually foresaw instead of what a reasonable person would have foreseen.
Two decisions show the requirement defeating liability. In Commonwealth v. Williams the defendant was committing the misdemeanor of driving without a license when the defendant's car struck and killed the victim, and the Pennsylvania court reversed the manslaughter conviction because the death must be the natural result or probable consequence of the unlawful act, while a licensing violation neither is a felony nor tends to cause death or serious bodily harm.15 In State v. Ayers a defendant sold a gun to a minor who lacked a permit, and the minor later accidentally killed his girlfriend while showing off the gun; the Iowa court reversed the involuntary manslaughter conviction because that consequence was not foreseeable.16 In both cases the offense was part of the history of the death, and the court still found no foreseeable path from the violation to the killing.
The same kind of offense can support liability when the facts supply the missing link. Holder v. State held that carrying a gun, a malum prohibitum misdemeanor, does not support manslaughter for an accidental death unless the defendant handled the gun in a way that made the killing a natural or probable result of that conduct.17 Under that formulation, a carrier whose unlicensed pistol stays holstered has no foreseeable connection to a death that occurs later in the day, but a carrier who waves the pistol through a crowded room has turned the permit violation into conduct from which a fatal shot is a foreseeable result. Foreseeability also operates through the reactions of other people. In Reed v. State a Texas court found manslaughter where a man caught committing adultery, a misdemeanor in Texas, killed the husband while defending against the husband's murderous attack, on the reasoning that the attack was a foreseeable reaction to the defendant's misconduct.18 That outcome is among the extraordinary findings of liability that the rule's facial simplicity has produced, and it shows how generous the foreseeability test can be when a court applies it loosely.
The Minority Malum in Se Rule
A minority of courts restrict misdemeanor manslaughter to cases in which the underlying misdemeanor is malum in se.20 Under this approach a malum prohibitum offense cannot serve as the unlawful act at all, however likely it was that someone would die, so the classification of the offense is the whole inquiry. If the offense is wrong in itself, the doctrine applies; if it is wrong only because it is prohibited, the doctrine is unavailable and the prosecution must proceed on another theory, such as criminal negligence. The common-law statement of the rule calls this the minority position, while the District of Columbia court in Comber described the malum in se limit as the rule in many jurisdictions.21 The framing that holds up either way is to treat the limit as the stricter alternative and to apply whichever position the jurisdiction in the question follows.
The minority begins from the same observation as the majority, that a prohibitum offense carries no moral signal, but it draws a firmer conclusion. Where the majority tries to repair the missing culpability with a foreseeability inquiry, the minority removes the problem by excluding prohibitum offenses altogether. A categorical exclusion is easier to administer than a case-by-case foreseeability finding, and it prevents the growing catalogue of misdemeanors from widening the reach of homicide liability.22 What the exclusion leaves behind is the ordinary negligence route, which asks for a higher degree of risk than foreseeability does, so the minority position protects defendants in the middle range of cases, where the risk was unreasonable and foreseeable but not extreme.23
Return to the carrier who waves an unlicensed pistol through a crowded room and kills a bystander when it fires. In a majority jurisdiction the permit violation is malum prohibitum, but the death was a foreseeable result of the conduct, so the doctrine applies and the carrier may be convicted of involuntary manslaughter.24 In a minority jurisdiction the same permit violation is excluded at the threshold, and foreseeability never enters the analysis; the prosecutor can still reach manslaughter, but only by proving the higher degree of risk that criminal negligence requires. Change the predicate offense and the two approaches converge. If the carrier had been committing a battery when the fatal shot went off, the offense would be malum in se, and the doctrine would apply under either approach without any foreseeability showing.25
Applying the Three Positions
A short drill shows the sequence at work. A driver exceeds the speed limit in a school zone and kills a child who steps off the curb. Speeding is a standard example of malum prohibitum conduct, because driving is lawful up to the limit and wrong beyond it only because the law sets the limit, so step 4 controls. In a majority jurisdiction a reasonable person would foresee that fast driving beside a school can kill, and the doctrine applies; in a minority jurisdiction the speeding is excluded, and the prosecutor must prove criminal negligence. Add intoxication, which Iowa treats as malum in se, and the analysis in such a jurisdiction moves to step 3, where no foreseeability argument is needed.27 Both versions share the same collision, and the added intoxication changes the classification of the offense, which in turn changes the question the court asks.
Malum in Se Offenses
An unlawful act is malum in se when it is wrong in itself by ordinary moral standards, whatever any statute says, as battery and theft are. The usual rule for this category is the simplest in the doctrine: when a defendant unintentionally causes another's death while committing or attempting a malum in se offense, the defendant is guilty of involuntary manslaughter, without regard to whether the death was foreseeable.29 Many jurisdictions sort unlawful acts into malum in se and malum prohibitum (wrong only because a law forbids it), though not all do.30 The majority adds a foreseeability requirement for offenses outside the malum in se category, so the category described here is the baseline from which that requirement departs.31
The reason this category needs no foreseeability showing lies in what the rule is doing. Involuntary manslaughter on a criminal-negligence theory requires proof that the defendant disregarded a serious risk of death, but where the misdemeanor-manslaughter rule applies, liability attaches without that degree of recklessness, because the defendant's intentional commission of the misdemeanor supplies the culpability.32 That substitution is easiest to defend when the offense is wrong in itself. A person who strikes another or takes another's money knows the conduct is wrongful and has already chosen to disregard someone else's interests, so the choice stands in reasonably for carelessness about what follows. A separate foreseeability inquiry would ask the prosecution to prove again what the wrongfulness of the act has already shown.
The same structure explains why causation is satisfied more readily here than for regulatory offenses. Much unlawful conduct divides into a lawful part and an unlawful excess: driving is lawful, and only the speed above the limit or the intoxication makes it wrong. For offenses of that kind, a court can ask whether the unlawful excess, rather than the lawful driving, produced the death. A battery or a theft has no lawful part to subtract, because the entire act is the wrong, so the usual rule for malum in se conduct dispenses with any inquiry into whether the unlawful excess caused the death.33 Jurisdictions still differ on the causal link they demand in unlawful-act manslaughter generally, from none at all to a requirement that death be a natural and probable consequence of the offense. That divergence is why Todd v. State, which involved a malum in se misdemeanor under Florida law, turned on causation rather than on classification.34 The label settles the culpability question, and the causal question belongs to the jurisdiction's own rule, which a later section takes up.
Simple assault and battery are the clearest applications. The District of Columbia court in Comber v. United States described the misdemeanors that are dangerous in and of themselves as those bearing an inherent danger of physical injury, and it listed simple assault among them.35 For battery, it is almost universally held that a person who intentionally inflicts bodily harm, even by a moderate blow with the fist, is guilty of involuntary manslaughter when the victim unexpectedly dies, though the victim's weak heart or thin skull made the death unforeseeable to the attacker.36 The same holds for assault without contact: a defendant who closes in on a person intending to strike, and whose target has an undiscovered heart condition and dies of fright, is guilty of manslaughter though the defendant never touched the victim.37 In each case the wrongful act is the whole predicate, and the rule asks nothing further about whether death was foreseeable.
Theft supplies a second kind of malum in se offense, one with no threat of injury in it. A thief takes cash from a gas-station operator, a petty larceny, and runs onto a highway, and the operator, chasing on foot, is struck by a passing car and killed. Larceny is malum in se, so the predicate requirement is met and the prosecution does not have to show separately that the death was a foreseeable result of the theft. Whether the chase and the collision are connected closely enough to the theft is the causal question just noted, and it is open in a way that the classification question is not.
The contrast with a regulatory offense shows which fact carries the analysis. A driver travels a few miles an hour above the posted limit on a good road in excellent weather, and a pedestrian dashes out from behind a bush and is killed. Speeding is malum prohibitum, since driving is lawful and becomes wrong only because the law sets a number, so the malum in se route is unavailable. The majority then asks whether the death was a foreseeable result of committing the offense,38 and some courts ask instead whether the unlawful excess, the few miles per hour over the limit, caused the death.39 On these facts neither inquiry is likely to help the prosecution, because a slight overage on a clear road did not put the pedestrian in harm's way.
Change only the predicate and the answer shifts. In State v. Davis an Iowa court affirmed a manslaughter conviction because driving while intoxicated is malum in se, so that causing a death by drunken driving is manslaughter.40 In Keller v. State the conviction was affirmed even though the intoxicated driver hit a pedestrian crossing mid-block whom a sober driver could not have avoided.41 Treating the label as the end of the analysis can carry a defendant a long way toward liability, but students lose points when they assume the malum in se label answers every question, because the jurisdiction's causal-link rule still has to be applied.
Malum Prohibitum and Foreseeability
When the misdemeanor in which a death occurs is malum prohibitum, meaning wrong only because a law forbids it and not because the conduct offends ordinary moral standards, most courts will not convict of manslaughter merely because the death happened while the offense was under way. The prosecution must also show that death was a foreseeable result of committing the misdemeanor.43 For a malum in se offense such as battery, the wrongfulness of the act carries the culpability, which is why no separate foreseeability showing is demanded there. A prohibitum offense gives off no comparable signal, so the foreseeability requirement has to supply the link between the defendant's conduct and a death that nobody intended.
The reason for the requirement follows from what a regulatory violation does and does not show. A driver who lets a license lapse, or a person who carries a pistol without a permit, has broken a rule, but breaking that rule reveals nothing about whether the person appreciated any risk to human life. If every such violation could serve as the predicate, a technical lapse would become a homicide the moment someone happened to die, and liability would track bad luck instead of fault. Foreseeability closes that gap by asking whether a reasonable person committing this offense on these facts would have seen death as a likely result. The defendant then answers only for deaths the conduct could fairly be said to invite.
The same reasoning explains why a rigid malum in se line draws criticism. Many malum prohibitum statutes, traffic regulations above all, were enacted to protect the public from serious injury or death, so describing them as wrong only because the legislature says so understates what they do.44 Some courts therefore ask whether the statute was designed to protect the public from the very risk that materialized, as in State v. Cope.45 A stop-sign or right-of-way rule fits that test easily, because the rule exists to prevent collisions that kill, and a death caused by violating it is the harm the rule was written to stop. A rule about license renewal or permit paperwork serves administrative ends, and a death that happens during such a violation has no comparable connection to the rule's purpose.
This standard is easier for the prosecution to meet than the one governing criminal-negligence manslaughter. Where the defendant was doing no unlawful act, the conduct must create a high degree of risk of death or serious injury, and perhaps the defendant must be aware of that risk; where the defendant was already committing an unlawful act, an unreasonable risk is enough and subjective awareness is unnecessary.49 Because the unlawful-act route relaxes the risk requirement in this way, the foreseeability limit is an important protection against a minor regulatory violation becoming a path to a homicide conviction on facts too thin for criminal negligence.
The decisions that reverse convictions show the limit at work, and they fail for two different reasons. In Commonwealth v. Williams a driver with an expired license, who was otherwise without fault, struck and killed a pedestrian, and the manslaughter conviction could not stand because the lapsed license had no causal connection to the death.50 In State v. Ayers an Iowa defendant sold a gun to a minor who lacked a permit, and the minor later killed his girlfriend by accident while showing off the gun; the conviction was reversed because that consequence was not foreseeable.51 In State v. Voland an Ohio court held that letting an unlicensed driver operate a vehicle was not a proximate cause of death where the driver only started the car to run the air conditioning and a four-year-old passenger then fell onto the gear shift and the accelerator.52 The difference matters for exam analysis. Williams involved a violation that played no part in producing the death, while Ayers and Voland involved violations that put a gun or a car in the wrong hands, and the courts still found the later chain of events too extraordinary to count as foreseeable.
The success side of the line is easy to see with a safety rule. A driver who runs a stop sign and strikes a pedestrian in a crosswalk has committed a malum prohibitum offense, but stop-sign laws exist to keep vehicles from colliding with people at intersections, and a reasonable person would see that running one can kill. The foreseeability condition is met, and the majority rule permits a manslaughter conviction.53 The standard failing case is a speeding driver who exceeds the posted limit by a few miles an hour on a good road in excellent weather, when a pedestrian dashes out from behind a bush and is killed. Speeding is not malum in se, and a slight overage on a clear road did not put the pedestrian in harm's way, so the death was not a foreseeable result of the offense and there is no manslaughter.
Speeding can land on either side of the line, so the offense label alone does not decide the result. A driver who travels at twice the limit past a school at dismissal and kills a child who steps off the curb has committed the same misdemeanor as the driver on the clear road, yet a reasonable person would foresee death from that driving, and the majority test is satisfied. Authorities that reach opposite results on speeding are not contradicting each other. Jurisdictions differ in how they classify the offense, and within a jurisdiction the outcome turns on a factual question about whether death was foreseeable on the facts presented, so the safe course is to apply the test to the facts and not to memorize an outcome for the offense.
Not every jurisdiction states the limit as foreseeability. Some courts ask instead whether the death was in fact caused by the unlawful excess, the portion of the conduct that made it unlawful. Under that view a driver doing 35 in a 25 zone is judged by the extra 10 miles per hour, and a drunk driver is judged by the intoxication and not by the driving.54 Others state the limit as plain proximate cause, which is another way of expressing the foreseeability view, and the Maine court in State v. Budge put it that way: where the unlawful act is malum prohibitum, it must be shown to be the proximate cause of the homicide.55 Whichever formulation the jurisdiction uses, the prosecution must connect the regulatory violation to the death, and the connection is a factual showing that the offense label does not supply.
Students lose points on this issue by reading the prohibitum label as a bar to liability, when under the majority view the label only triggers the foreseeability question. A question that does not specify the jurisdiction's position is best answered under the majority rule, with the stricter alternative noted, and that alternative is the subject of the next section.
The Minority Malum in Se Rule
The majority rule, set out in the prior section, treats a malum prohibitum misdemeanor as a conditional predicate: the offense qualifies when the prosecution shows that death was a foreseeable result of committing it. A minority of courts decline to offer that condition at all. They restrict misdemeanor manslaughter to cases in which the underlying misdemeanor is malum in se, so a regulatory offense is excluded from the doctrine however foreseeable the death turned out to be.57 A Maryland appellate court took this line in Mills v. State, limiting the doctrine to deaths resulting from malum in se misdemeanors as distinguished from malum prohibitum ones.58 The Michigan Supreme Court's decision in People v. Holtschlag is cited for the same restriction to malum in se misdemeanors.59 The label that matters most for this approach is the minority malum in se rule, and it is the stricter of the two limits built on the classification of the offense.
The two rules are easiest to compare with every other fact held constant. Both agree about battery and other malum in se offenses, where the wrongfulness of the act carries the culpability and no separate foreseeability showing is demanded. They part company on a single variable, which is whether foreseeability can rescue a malum prohibitum offense. Under the majority, a regulatory violation that foreseeably leads to a death is a valid predicate. Under the minority, classification ends the inquiry, so a showing of foreseeability has no work to do, because the offense never reaches the stage at which foreseeability would be asked.
The reason for the stricter line lies in what the unlawful-act route gives up. Misdemeanor manslaughter allows the prosecution to establish involuntary manslaughter by showing that the unlawful act caused the death, with no proof of criminal negligence required.60 That shortcut is defensible only if the unlawful act itself says something about the defendant's blameworthiness. A malum in se offense does, because the conduct is wrong by common moral standards before any statute addresses it. A prohibitum offense gives off no comparable signal, so the minority concludes that the shortcut should be unavailable there and does not try to repair it with a case-by-case foreseeability inquiry. The rule trades flexibility for predictability. Courts avoid fact-bound contests over whether a particular death was foreseeable, and the doctrine stays confined to offenses that carry real moral blame.
The exclusion does not leave every foreseeable death from a regulatory violation unpunished. Where the unlawful-act theory is closed, the prosecution keeps its other route to involuntary manslaughter, which is to argue that the defendant's conduct amounted to criminal negligence under the circumstances.61 That route demands proof of a risk of death or serious injury that the unlawful-act theory dispenses with, which is exactly why a defendant gains from the minority rule. The cost of the line falls on the other side. As the previous section observed, many traffic rules exist to prevent fatal collisions, so excluding the whole category removes cases in which the rule was written to stop the very death that occurred.
The minority rule shows its effect when a single jurisdiction faces two predicates. In a jurisdiction following the Mills line, a defendant who commits a simple battery, a malum in se misdemeanor, and whose victim dies has supplied a qualifying predicate, and the doctrine applies without more. Keep the jurisdiction and change only the predicate. In State v. Hupf a Delaware driver was convicted of involuntary manslaughter after failing to obey a stop sign, in violation of a traffic ordinance, and killing a pedestrian; the decision was later superseded by statute.62 Death is a plausible result of running a stop sign, so the majority's foreseeability test would let a conviction of that kind stand. The minority would reject the unlawful-act theory on those facts, because the traffic ordinance is malum prohibitum, and the prosecution would be left to prove criminal negligence.
Two errors recur on this point. The first is running the foreseeability analysis in a jurisdiction that follows the minority rule, when foreseeability cannot rescue a malum prohibitum predicate and the analysis stops at classification. The second is confusing this limit with the dangerousness approach, under which a court asks whether the misdemeanor is dangerous in itself or was committed in a way that is dangerous under the circumstances.63 The minority malum in se rule looks to the moral character of the offense as a category, while the dangerousness approach looks to how the offense was committed, and a later section takes it up. Where an exam question does not say which position the jurisdiction takes, the majority foreseeability rule is the safer default, with the minority limit noted as the stricter alternative.