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Equity and the Modern Forfeiture Rule
journal contributionposted on 2020-03-30, 00:00 authored by Samantha HepburnSamantha Hepburn
The forfeiture rule is a private law response to the fundamental public policy principle that a killing should not generate a gain for the perpetrator. In its early stages, the rule applied automatically to the perpetrator of any killing and no differentiation was drawn between murder and manslaughter. Today, courts and the legislature have increasingly accepted that the context of a killing makes it difficult, unfair and often disproportionate to apply a presumptive rule. This article argues that in those states where legislative change has not been implemented, the suitability of the forfeiture rule to a manslaughter killing should be determined in the equitable jurisdiction of a civil court. The test in those states should be whether it would be contrary to the conscience of equity to allow a perpetrator to make a property gain. Equity is jurisdictionally equipped to embrace a multi-layered evaluation of the purpose and utility of the forfeiture rule and such an assessment is necessary where the moral culpability of a perpetrator is diminished.