F. Negligent Homicide (Article 134, UCMJ). This is the lowest level of criminal homicide in
the military. It requires a death resulting from the act of the accused, without lawful justification or
excuse, just as the more serious forms of homicide. The criminal element of this offense, however, is
simple negligence. Simple negligence is defined as the absence of due care, that is, an act or omission
of a person who is under a duty to use due care which shows a lack of that degree of care for the safety
of others which a reasonably careful person would have exercised under the same or similar
circumstances.
Simple negligence is a lesser degree of carelessness than culpable negligence. Part IV, MCM
1984, para 85(c) (2). The simple negligence required for negligent homicide is less than the culpable
negligence required for involuntary manslaughter and certainly less than the wanton disregard for
human life required for wanton murder.
The driver who goes through a red light and strikes and kills a pedestrian may be guilty of
negligent homicide. The necessary acts for negligent homicide are not so severe as to amount to
criminally culpable negligence, but are far enough from the expected conduct of a prudent person to
amount to simple negligence. One in charge of a water crossing exercise failed to assure that persons
crossing the creek were wearing life vests and secured to tagline and that a boat was following those
crossing. His conduct was simple negligence. He was properly convicted of negligent homicide when a
soldier fell from the rope and drowned. United States v. Zurrigl, 15 MJ 798 (ACMR 1983). In this
case, the accused who was as the person in charge had a duty to take adequate measures to protect the
persons under his charge from harm. The court concluded that a reasonably prudent person in the
accused's position would have ensured that the persons crossing the creek were wearing life vests and
secured to a tagline and that a boat was following those crossing. Failure to do so constituted simple
negligence which caused the victim's death.
Whenever the law holds an individual criminally liable for his negligence, it holds him liable
only for the foreseeable consequences of the negligence. This common sense principle, also known as
the theory of proximate causation, protects people from being convicted because of bizarre and remote
harm which was not the natural result of their negligence.
The negligence must be "proximate cause of the death." In US v. Perez, 15 MJ 585 (AMCR
1983), the accused left her infant son with her boyfriend on 20 December 1980 and 1 January 1981. On
both occasions, the child suffered injuries requiring hospitalization (a fractured skull on 20 December
and 2 broken ribs, bruises on the back, and excoriations on the back and face on 2 January). The
doctor's opinion was that the injuries were consistent with the child's having been struck with
exceptional force more than once and that they were not caused by simple falling or other accidental
means. The accused was counseled by the battalion commander (as was her boyfriend, who was also in
the military). She was told that the injuries were life-threatening and she agreed to put the child in a
foster home. On 13 March 1981, she took the child home for the weekend, promising not to leave
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