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THE REFORM OF THE LAW OF HOMICIDE IN ISRAEL
HOMICIDE WITH RASHNESS”
Mens rea in Israeli law, as in the Anglo-American law, is the subjective mental
element, consists of intention, reckless-indifference and reckless-rashness.? While
homicide with intention or indifference constitutes the basic homicide offence of
murder, punished by life imprisonment as maximum sentence, rashness is a lesser
homicide offense, punished with 12 years imprisonment as a maximum sentence.
Rashness is defined in Israeli penal Code” as “accepting an unreasonable risk that
those consequence may result, while hoping to be successful in avoiding them”.
A perpetrator who acts out of rashness is a perpetrator who acts not wanting
the result to occur, believing that it will not occur. It can be assumed that the
perpetrator would not have committed the act of homicide if he believed that the
act would result in the death of the victim.
AGGRAVATED MURDER”
The most severe cases are now enumerated in murder in aggravated circumstances,
punished in general by a mandatory life imprisonment. According to subsection
(B), a narrow opening is left for special rare cases in which an aggravated
circumstance takes place but consideration of all circumstances of the case
leads to the conclusion that the case does not reflect the special high degree of
culpability required by aggravated murder. This change reduces the gap between
the basic offense of murder and the aggravated murder and makes the distinction
between them less dramatic. Both offenses: the basic and aggravated offenses are
named murder and carry a life sentence. The difference in sentencing is reduced
to the difference between a maximum punishment for murder and a mandatory
punishment as a rule with exceptions in aggravated murder. In the former law,
the difference was between a mandatory life imprisonment for murder as the
aggravated homicide offense and 20 years imprisonment for manslaughter as
the basic homicide offense, whereas both offenses included both intentional and
reckless killings.
85, para 3.162 at p. 86; see also the Model Penal Code, Part II (The American Law Institute,
1980) section 210.2(b).
24 Section 301C of the Penal Code, Amendment 137.
25 Rashness in Anglo-American legal system can be compared to bewusste Fahrlaessigkeit
in European-Continental legal system, such as the German law; see Sternberg-Lieben —
Schuster, Strafgesetzbuch Kommentar, $15 paras. 203.
26 Section 20(A)(2)(b).
27 Section 301A of the Penal Code, Amendment 137.
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