Parricide and Other Aggravated Homicides
1. Parricide
The Act of Parricide
Parricide, in a narrow sense, is the killing of a father by his son. Historically, this crime was punishable by death and severe torture.
Aggravating Factors in Homicide
Certain relationships between the perpetrator and the victim aggravate the crime of homicide:
- Father, mother, or child (legitimate or illegitimate)
- Legitimate ascendant or descendant
- Spouse
The Doctrine of Aggravation
This doctrine is based on the concept of a more culpable verdict due to the close relationship between the perpetrator and the victim.
Questions of Adoption
There is debate on whether adoptive relationships qualify for this aggravation. Some scholars, like Lopez Bolado, argue that adoption creates a new family status under the law, thus justifying the aggravation.
Regardless of the stance, the aggravation should apply only once—either in cases of blood relation or adoption, but not both. Applying it to both would create inequality for adoptive families.
Homicide Between Spouses
Some legal scholars argue that killing one’s spouse demonstrates a disregard for the respect due within the marital relationship. Others, like Grisolia, Bustos, and Politoff, suggest the aggravation stems from the crime’s broader impact on the family and the institution of marriage.
Case law has established that even brief separations do not negate the aggravating factor, as the duties and bonds of marriage persist.
Divorce, according to Law 23,515, dissolves the marital bond and thus excludes the parricide aggravation.
Nullity of Marriage
If a marriage is annulled before a homicide, the aggravating circumstance does not apply. In cases of relative nullity where the perpetrator acted in good faith regarding the marriage’s existence, the aggravation is also excluded.
In cases of absolute nullity, where no legal bond exists, the aggravation is typically ruled out. However, if the perpetrator believed the marriage was valid, the crime could be considered attempted aggravated homicide, although the absence of a valid marriage would likely reduce the charge to the base offense.
Proof of Relationship
According to civil law, marriage is proven through specific documentation, while parenthood requires proof of status (Article 325).
Subjective Type
The interpretation of intent in these cases has evolved. The phrase “knowing that they are” suggests direct intent. The perpetrator must kill knowing with certainty the victim’s relationship status. Doubt about the relationship may allow for a defense of mistake.
Participation in Parricide
Two scenarios exist: 1) an outsider participates with an insider, and 2) an insider participates with an outsider.
In the first case, participants are charged with the aggravated crime only if they are aware of the aggravating circumstance (Article 48, Criminal Code).
In the second case, if an insider directs an outsider to commit the act, the principle of accessory applies. The primary offense is homicide, and the insider acting through an intermediary is also charged with homicide.
2. Treachery (Alevosía)
Definition
Treachery involves using means, methods, or forms of execution that ensure the killing without risk to the perpetrator, preventing any defense from the victim. It is a treacherous mode of killing with mixed objective (means used) and subjective (intention to exploit victim’s vulnerability) elements.
Key Aspects
- The means used must objectively reduce the victim’s defense.
- The perpetrator must intend to exploit the victim’s vulnerability.
- The victim’s helplessness need not be caused by the perpetrator.
Examples of Treachery
- Premeditated murder using ambushes or traps.
- Sudden, unexpected attacks.
- Exploiting a pre-existing state of helplessness (e.g., a sleeping victim).
Jurisprudence
Jurisprudence requires not only the victim’s helplessness but also the perpetrator’s awareness and exploitation of this state.
Three Modalities of Treachery (Spanish Supreme Court)
- Proditoria: Trap, ambush, or stalking.
- Aleve: Sudden, unexpected attack.
- Exploiting helplessness: Killing children, the elderly, or incapacitated individuals.
Elements of Treachery
- Concealment: Hiding the attacker or the attack itself.
- Lack of risk to the perpetrator: Ensuring personal safety during the act.
- Victim’s helplessness: Intentionally exploiting the victim’s inability to defend themselves.
3. Cruelty (Ensañamiento)
Definition
Cruelty is a method of killing with the deliberate intention of inflicting unnecessary physical suffering on the victim. It involves prolonging the victim’s agony and taking pleasure in their pain.
Objective Element
Inflicting excessive and unnecessary pain or suffering before death.
Subjective Element
Direct intent to increase the victim’s suffering unnecessarily.
Aggravation and Error
Aggravation does not apply if the perpetrator believes they are not causing unnecessary suffering or if the victim is already dead.
Jurisprudence on Cruelty
Argentine jurisprudence defines cruelty as deliberately and unnecessarily increasing the victim’s suffering before death. Multiple blows or prolonged assault alone do not constitute cruelty unless intended to inflict unnecessary pain.
4. Nature of Cruelty
According to Fernández Albor, cruelty has objective (inflicting unnecessary physical or moral harm) and subjective (deliberate intention) elements. Bustos Ramirez emphasizes the deliberate and inhuman increase in the victim’s pain.
The prevailing view is that cruelty is essentially subjective. The perpetrator must intend to cause the greatest possible harm, beyond what is necessary to kill.
5. Poison or Other Insidious Procedures
An insidious procedure involves concealing the aggression and homicidal intent. Some argue that insidious procedures are always treacherous.
This aggravation applies when poison is used covertly. Poison is defined as any animal, vegetable, or mineral substance that kills by changing the body’s chemical nature.
Elements of the Crime
- A poisonous substance is used to kill.
- The poison is used insidiously (covertly or surreptitiously).
Concept of Poison
Poison is any animal, vegetable, or mineral substance (solid, liquid, or gas) that kills by altering the body’s chemical or biochemical nature.
Classification of Poisons
- Physical State: Solid, liquid, or gas.
- Origin: Mineral, vegetable, or animal.
Modern doctrine often equates poisoning with malice or considers it a special form thereof.