מאמר זה מבקש לבחון מחדש את הפרשנות שהוענקה בפסיקה למאפייני היסוד ההתנהגותי-נסיבתי בעבֵרת הריגה לפי סעיף 298 לחוק העונשין, להעמידה במבחן הביקורת ולהציע לה חלופה. החלופה הפרשנית העומדת ביסוד המאמר כולו מבוססת על תוכן היסוד הנורמטיבי של ה"פזיזות" (recklessness) במשפט האנגלו-אמריקאי, שהוגדר כהתנהגות של נטילת "סיכון בלתי-סביר" (unreasonable risk) המהווה סטייה מנורמת התנהגות של "אדם שומר חוק" (law-abiding person). כפי שאבקש להראות, מונחים אלה, על-פי פרשנותם המקובלת במשפט האנגלו-אמריקאי, מעניקים תוכן ייחודי ליסוד ההתנהגותי-נסיבתי של עבֵרת הריגה, ויש בהם אף כדי להניח תשתית פרשנית חלופית לתוכן שהוענק בפסיקה ובספרות בישראל להיגד "נטילת סיכון בלתי סביר" שבהגדרת קלות-הדעת בסעיף 20(א)(2)(ב) לחוק העונשין.
The Behavioral-Circumstantial Element in the Crime of Manslaughter
The crime of manslaughter is defined in section 298 of the Israeli penal code of 1977 as follows: “whoever, by an unlawful act or omission, causes the death of a person, will be charged with manslaughter and will be sentenced to a term of twenty years.” Nevertheless, this section does not define the unlawful act itself, that is, it neither explains the behavioral basis of the crime nor its contributing circumstances.
In Israeli law, the expression “unlawful act or omission” has acquired a far-reaching meaning: “Every action that endangers the life of another person, if committed with mens rea and results in death, falls into category of an unlawful act.” The source for this understanding of the statute was suggested by the legal scholars, S.Z. Feller and M. Kremnitzer, to wit: that the behavioral element for the crime of manslaughter (“unlawful act or omission”) is that the crime is one of mens rea with no discernible behavioral basis.
It is the aim of this article to reexamine the definition of manslaughter as it is understood in Israel as “an unlawful act or omission”, to analyze the concept critically, and to offer an alternative meaning. This alternative interpretation, which is at the heart of this entire work, is based on the normative content of recklessness that has shaped, in Common Law, the accepted understanding of the behavioral-circumstantial characteristics of the crime of manslaughter.
This normative foundation that is defined in Common Law as unreasonable risk and as a deviation from the standard of conduct of a law-abiding person, is not included in the definition of manslaughter in Israel. As will be shown in this paper, these two terms—“unreasonable risk” and “law-abiding person”— that are inherent in the normative understanding of recklessness in Common Law, are used as the fundamental terms that invest the basic behavioral-circumstantial elements of manslaughter, that is, the content of the “unlawful act” in the crime, and this on the basis of objective and normative tests.
In Israel, on the other hand, in all that relates to manslaughter, the crime is characterized by mental elements only. Thus, acceptance of the definition that includes “Every action that endangers the life of another person, if committed with mens rea and results in death, falls into the category of the unlawful act” is contingent upon the clarification of the behavioral basis (“the unlawful act”) according to the mental element without reference to any objective-normative criteria. In this manner, manslaughter in Israel is conceived of as lacking any behavioral or circumstantial elements that create, as will be shown in this paper, terminological and essential difficulties in the application of the law.
By analyzing the normative foundation of recklessness and the ways in which this is applied in Common Law, I will show how the adoption of such a foundation in the definition of the concepts of manslaughter in Israel might solve the problems that are inherent in the present definition, give it a clearer and more coherent content, and ground its material elements on an objective basis as is the case with other crimes. I will also show how the normative basis of recklessness in Common Law is used as a balancing factor in the mental element of manslaughter (awareness of the elements of the crime), and how it limits the status, in my opinion greatly exaggerated, that the Israeli judicial system has accorded it.
Although the central concern of this paper is the analysis of the elements of manslaughter in Israel and a recommendation for changing them for this particular crime, the importance of the work is also in the alternative interpretation that it suggests in the general content of the element of “unreasonable risk” as explained in the content-related definition of kalut da’at in section 20(a)(2)(b) of the 1977 code, a definition that has earned it only marginal, much overlooked and in my opinion, often incorrect attention in Israeli jurisprudence. This work will present enough information to re-shape the content of this term as a normative-objective one as the mental element of kalut da’at against the background of the subjective interpretation it has been given, in the worst case, in Israeli jurisprudence, and/or, in the best case, against the background of the marginal attention granted it.
As I will maintain in this study, either assigning a subjective-conscious content to this element, or ignoring it (or its content) entirely, as characterizes the Israeli system, has contributed to the blurring of proper judicial limits in the question of manslaughter (and in other crimes) and the fashioning of a crime devoid of an objective-behavioral element. This situation, I will claim, prevents the court from presenting a coherent analysis of the crime, creates a feeling of arbitrariness in its application, and grants to the mental element a status that is so unworthy and abnormal in its breadth that it causes endless harm, in a number of ways, to the principle of legality.