Reformulating dolus eventualis: Guidance from America and Germany

Abstract

Dolus eventualis has correctly been described as an ‘enigma’. Not only has it been variously described by the courts, but the courts have applied the two-stage test without providing an in-depth analysis of what it means. Both dolus eventualis required for murder and conscious negligence required for culpable homicide, contain an element of subjective foresight of the remote possibility of death occurring. As a result, the distinction between murder and culpable homicide has become confused over the years, and is evident in the courts vacillating between findings of murder and culpable homicide. Considering the lack of clarity, this article examines the test for dolus eventualis in the case of murder and determines whether it can be more clearly distinguished from culpa, in the case of culpable homicide. German and American law and academic opinion is consulted in order to establish how the respective countries have dealt with the conflation of murder and negligent killings.