Wisconsin Voluntary Manslaughter Law

Created by FindLaw's team of legal writers and editors | Last reviewed June 20, 2016

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In most states, the voluntary manslaughter law covers a killing when the murderer acted out of passion or anger before having enough time to calm down. This difference between murder and voluntary manslaughter can be thought of as the difference between "cold-blooded murder" and "heat-of-the-moment manslaughter."

Manslaughter is different than murder because the killer acted under an extreme emotional excitement that caused him or her to act (and kill) without thinking twice. For this defense or mitigating circumstance to apply, the emotional excitement that caused the killing must be so provoking that an ordinary person in that same situation would have acted the same way. If the person has time to calm down or cool off before the killing, it's considered a murder.

Wisconsin does things a little differently. Since a major criminal law reform in the late 1980s, the prior manslaughter offense has instead been a mitigated intentional homicide offense, called Second-Degree Intentional Homicide. This is basically the same as First-Degree Intentional Homicide. Only one of four statutory affirmative defenses applies to the killing, lowering the culpability or responsibility of the defendant some.

Voluntary Manslaughter Examples

Two common examples of voluntary manslaughter are self-defense and a cheating spouse. In self-defense, a battered spouse did want to kill her abuser, but felt it was necessary in the moment in order to protect himself or herself or another person from serious harm. If it was, then the battered spouse could be acquitted of the crime. But maybe the jury wouldn't find it reasonable how much force was used. Then this would be an incomplete self-defense where the killing still deserves some punishment.

The cheating spouse example is when a person walks in on his or her spouse and a lover having sex, and is so distraught he or she grabs the family gun and kills them both. However, if the defendant killed his or her spouse at dinner two weeks later for the cheating, he or she had time to cool down and it's not voluntary manslaughter.

Wisconsin Voluntary Manslaughter Statute

The main provisions of Wisconsin's voluntary manslaughter law are outlined below.

Code Section

Wisconsin Statutes Section 940.05 - Second-Degree Intentional Homicide

What is Prohibited?

Wisconsin prohibits causing another human or unborn child's death with the intent to kill the person or the unborn child or the pregnant woman carrying the child. This is first-degree intentional homicide also. However, in this case, one of the following four mitigating factors applies:

  • Adequate Provocation - A "heat of passion" killing, that is the killing was under the influence of an adequate provocation that causes the murdered to lose self-control and would cause an ordinary person to lack self-control
  • Unnecessary Defensive Force - The "imperfect" self-defense where the killer thought he or she or another was about to be killed or seriously injured and they had to use that about of force in self-defense. However, the judge or jury finds either the belief of being killed or seriously harmed or the force used being necessary wasn't reasonable given the circumstances.
  • Prevention of a Felony - The defendant killed believing the force was necessary to prevent or stop a felony, but the judge or jury finds that belief was unreasonable.
  • Coercion or Necessity -
    • Coercion - The defendant reasonably thought the killing was the only way to prevent his or her or another's own death or serious physical injury or herself or another
    • Necessity - The killing was done to prevent an imminent disaster, death, or seriously physical injury due to natural physical forces (blizzard, tornado, wildfire) to the defendant or another person

Penalty

Second-degree intentional homicide (formerly manslaughter) is a Class B felony punished by up to 60 years in prison. There's no fine associated with Class A or B felonies.

Civil Case

Frequently after a criminal homicide trial, the victim's family seeking compensation for the death of their loved one brings a wrongful death lawsuit. Even if found not guilty of the murder, it's possible to be found legally responsible for the death because civil cases have a lower burden of proof. This happened in the O.J. Simpson case. Simpson was found not guilty of murdering Nicole Brown Simpson and Ronald Goldman, but was found responsible for their deaths in the wrongful death cases.

If you're served with a wrongful death lawsuit, it's important to quickly contact an experienced personal injury defense attorney for help.

Note: State laws change constantly -- it's important to verify the state laws you are researching.

If you're charged with any murder or manslaughter crime, you should contact an experienced Wisconsin criminal defense attorney or public defender for assistance immediately.

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