Crime of passion

Description

The "crime of passion" defense challenges the mens rea element by suggesting that there was no malice aforethought, and instead the crime was committed in the "heat of passion." In some jurisdictions, a successful "crime of passion" defense may result in a conviction for manslaughter or second degree murder instead of first degree murder, because a defendant cannot ordinarily be convicted of first degree murder unless the crime was premeditated. A classic example of a crime of passion involves a spouse who, upon finding his or her partner in bed with another, kills the romantic interloper.

A love triangle featuring Paolo and Francesca da Rimini in The Divine Comedy (Dante Alighieri), depicted by Ingres.

In the United States, claims of "crimes of passion" have been traditionally associated with the defenses of temporary insanity or provocation. This defense was first used by U.S. Congressman Daniel Sickles of New York in 1859; after he had killed his wife's lover, Philip Barton Key II. It was used as a defense in murder cases during the 1940s and 1950s. Historically, such defenses were used as complete defenses for various violent crimes, but gradually they became used primarily as a partial defense to a charge of murder; if the court accepts temporary insanity, a murder charge may be reduced to manslaughter.

In some countries, notably France, crime passionnel (or crime of passion) was a valid defense to murder charges. During the 19th century, some such cases resulted in a custodial sentence for the murderer of two years. After the Napoleonic code was updated in the 1970s, paternal authority over the members of the family was ended, thus reducing the occasions for which crime passionnel could be claimed. The Canadian Department of Justice, has described crimes of passion as "abrupt, impulsive, and unpremeditated acts of violence committed by persons, who have come face to face with an incident unacceptable to them, and who are rendered, incapable of self-control for the duration of the act."[2]

Advocacy

In recent decades, feminists and women's rights organizations have worked to change laws and social norms which tolerate crimes of passion against women. UN Women has urged states to review legal defenses of passion and provocation, and other similar laws, to ensure that such laws do not lead to impunity in regard to violence against women, stating that "laws should clearly state that these defenses do not include or apply to crimes of “honour”, adultery, or domestic assault or murder."[3]

There are differences between crimes of passion (which are generally impulsive and committed by and against both genders) and honour killings, as "while crimes of passion may be seen as somewhat premeditated to a certain extent, honour killings are usually deliberate, well planned and premeditated acts when a person kills a female relative ostensibly to uphold his honour."[2] However, Widney Brown, advocacy director for Human Rights Watch, argued that "crimes of passion have a similar dynamic in that the women are killed by male family members and the crimes are perceived as excusable or understandable". Some human rights advocates say that the crimes of passion in Latin America are treated leniently.[4]

The Council of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence[5] states that member states should "preclude adultery as an excuse for violence within the family".

By country

Australia

In Australia, as in other common law jurisdictions, crimes of passion have traditionally been subjected to the partial defense of provocation, which converts what would have been murder into manslaughter. In recent years, the defense of provocation has come under increased criticism,[6][7] and, as a result, legal changes have abolished or restricted its application: in 2003, Tasmania became the first state to abolish the partial defense of provocation; the next state to abolish it was Victoria, in 2005; followed by Western Australia in 2008.[6] ACT and Northern Territory have amended the laws to exclude non-violent homosexual sexual advances, in 2004 and 2006, respectively.[6] In Queensland the partial defense of provocation in section 304(1) of the Criminal Code was amended in 2011, in order to "reduce the scope of the defense being available to those who kill out of sexual possessiveness or jealousy".[6] In 2014, the New South Wales law on provocation was amended to provide that the provocative conduct of the deceased must also have constituted a serious indictable offense.[8]

Brazil

Killing of wives due to adultery has been traditionally treated very leniently in Brazil, in court cases where husbands claimed the "legitimate defense of their honor" (legitima defesa da honra) as justification for the killing. Although this defense was not explicitly stipulated in the 20th-century Criminal Code, it has been successfully pleaded by lawyers throughout the 20th century, in particular in the countryside, though less so in the coastal big cities. In 1991 Brazil’s Supreme Court explicitly rejected the "honor defense" as having no basis in Brazilian law.[9][10][11]

France
Main article: French Penal Code of 1810

Prior to 1975, the French Penal Code of 1810 allowed lighter sentences for crimes of passion.[12] Article 324 permitted the murders of an unfaithful wife and her lover at the hand of her husband,[13] though only "at the moment" when the wife and her lover were "[caught] in the fact" by the husband in the matrimonial home.[14] On November 7, 1975, Law no. 617/75 Article 17 repealed Article 324. Many countries, including some western countries like Belgium, were legally influenced by the Article 324. Prior to 1997, Belgian law provided for mitigating circumstances in the case of a killing or assault against a spouse caught in the act of adultery.[15][16] In Luxembourg, Article 413 (repealed in 2003) provided mitigating circumstances for murder, assault and injury of an adulterous spouse.[17][18]

Article 324 of the French penal code was copied by Middle Eastern Arab countries. According to the Honour Based Violence Awareness Network, the penal codes that were enacted under the Napoleonic Empire influenced the development of laws in North Africa and the Middle East. These laws permit reduced sentences for murders that are "related to honour".[19] The French Article 324 inspired Jordan's Article 340 and Article 98.[20][21] The 1858 Ottoman Penal Code's Article 188 was also inspired by Article 324. Both the French Article 324 and Ottoman article 188 were drawn on to create Jordan's Article 340, which was retained after a 1944 revision of laws, and still applies to this day.[22][23][24]

Italy

As with other countries in Mediterranean Europe, Italy has a long tradition of treating crimes of passion with leniency. Until 1981, the law read: "Art. 587: He who causes the death of a spouse, daughter, or sister upon discovering her in illegitimate carnal relations and in the heat of passion caused by the offence to his honour or that of his family will be sentenced to three to seven years. The same sentence shall apply to whom, in the above circumstances, causes the death of the person involved in illegitimate carnal relations with his spouse, daughter, or sister."[25][26]

Roman Empire

In the Roman Empire the Roman law Lex Julia de adulteriis coercendis implemented by Augustus Caesar in 18 B.C.E. permitted the killing of daughters and their lovers who committed adultery at the hands of their fathers and also permitted the killing of the adulterous wife's lover at the hand of her husband.[27]

United Kingdom

Killing due to adultery traditionally fell under the provocation defense. In 1707, English Lord Chief Justice John Holt described the act of a man having sexual relations with another man's wife as "the highest invasion of property" and claimed, in regard to the aggrieved husband, that "a man cannot receive a higher provocation".[28]

Although provocation in English law was abolished on 4 October 2010[29] by section 56(1)[30] of the Coroners and Justice Act 2009,[31] it was replaced by a relatively similar defence of "loss of control" created by section 54.[32] There has been considerable controversy regarding the application by the courts of the new law; although section 55[33] states "(6) In determining whether a loss of self-control had a qualifying trigger (...) (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded", in a controversial decision by Lord Judge in R v Clinton [2012] 1 Cr App R 26 in the Court of Appeal, Lord Judge interpreted the new offence as allowing for sexual infidelity to count under the third prong of the new defence (see Baker and Zhao 2012). This decision has received heavy criticism from academics (see Baker and Zhao, "Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity," Journal of Criminal Law, Vol. 76, pp. 254, 2012). Vera Baird has also been very critical of the decision, writing, "It seems that parliament says infidelity doesn't count and the court says it does."[34]

in 2009 a man was cleared of murder but convicted of manslaughter by reason of provocation for stabbing his partner and his best friend to death when he found them having sex.[35][36] In another case, sexual infidelity leading to a "loss of control" was considered acceptable as a defence by Lord Chief Justice Lord Judge, potentially reducing a murder charge to manslaughter.[37]

Uruguay

In Uruguay, crimes of passion continue to be legally tolerated; in certain circumstances, the law exonerates a perpetrator when a killing or a battery was committed due to "passion provoked by adultery".[38] Article 36 of the Criminal Code provides for this:

"Artículo 36. (La pasión provocada por el adulterio)[39]

La pasión provocada por el adulterio faculta al Juez para exonerar de pena por los delitos de homicidio y de lesiones, siempre que concurran los requisitos siguientes:

1. Que el delito se cometa por el cónyuge que sorprendiera infraganti al otro cónyuge y que se efectúe o contra el amante.
2. Que el autor tuviera buenos antecedentes y que la oportunidad para cometer el delito no hubiera sido provocada o simplemente facilitada, mediando conocimiento anterior de la infidelidad conyugal."

Translation:

"Article 36. (The passion provoked by adultery)

The passion provoked by adultery empowers the court to exempt from punishment for the crimes of homicide and injury, provided that the following conditions are present:

  1. The offense is committed by one spouse against the other spouse whom he or she has caught in the act, or against the lover.
  2. The perpetrator has a good record and the opportunity to commit the crime was not provoked or facilitated by prior knowledge of the marital infidelity."

Since 2013, there have been ongoing political efforts to remove this provision from the Criminal Code.[40][41][42]

Notable examples

France

UK
  • Paul Choi

United States
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gollark: Because of things.
gollark: Those are basically lost technology now.

See also

References
  1. "Crime of passion legal definition of crime of passion". TheFreeDictionary.com.
  2. Communications, Government of Canada, Department of Justice, Electronic. "Historical Context - Preliminary Examination of so-called Honour Killings in Canada". www.justice.gc.ca.
  3. "Decriminalization of adultery and defenses".
  4. "Thousands of Women Killed for Family "Honor"".
  5. Council of Europe, Committee of Ministers, Plenary. "Committee of Ministers - on the protection of women against violence".CS1 maint: multiple names: authors list (link)
  6. "Archived copy" (PDF). Archived from the original (PDF) on 2014-06-23. Retrieved 2014-04-18.CS1 maint: archived copy as title (link)
  7. "Provocation in New South Wales: The need for abolition".
  8. "CRIMES ACT 1900 - SECT 23 Trial for murder-partial defence of extreme provocation".
  9. "'Honor' Killing of Wives Is Outlawed in Brazil". The New York Times. 29 March 1991.
  10. "Decriminalization of adultery and defenses".
  11. "Archived copy". Archived from the original on 2015-06-01. Retrieved 2015-03-02.CS1 maint: archived copy as title (link)
  12. Gallup, Inc. "Common Ground for Europeans and Muslims Among Them". Gallup.com.
  13. "France: Penal Code of 1810". Retrieved 3 July 2016.
  14. "France: Penal Code of 1810". www.napoleon-series.org. Retrieved 2016-10-06.
  15. http://orbi.ulg.ac.be/bitstream/2268/36305/1/ULg-Liber%20amicorum%20Bosly%20-%20Masset.pdf.
  16. "La loi du 24 novembre 1997 visant a combattre la violence au sein du couple - Violence entre partenaires - Comment s'en sortir ?". Archived from the original on 2016-03-31. Retrieved 3 July 2016.
  17. https://www.un.org/womenwatch/daw/Review/responses/LUXEMBOURG-English.pdf
  18. "Mémorial A n° 148 de 2003 - Legilux" (PDF). www.legilux.public.lu.
  19. "Honour Killings By Region".
  20. Stefanie Eileen Nanes, “Fighting Honor Crimes: Evidence of Civil Society in Jordan,” Middle East Journal, vol. 57, no.1 (Winter 2003), p. 6.
  21. Ellen R. Sheeley (2007). Reclaiming Honor in Jordan: A National Public Opinion Survey on "honor" Killings. Author. ISBN 978-9957-8607-0-7.
  22. "ISIS - Center for Inquiry". Archived from the original on 10 April 2016. Retrieved 3 July 2016.
  23. "Gender Based Violence in Jordan: Domestic Violence and Honor Crimes". Retrieved 2019-11-05.
  24. "Archived copy". Archived from the original on 2016-03-04. Retrieved 2016-01-06.CS1 maint: archived copy as title (link)
  25. "National Report: Italy" (PDF). Retrieved 2019-11-05.
  26. "Omicidio e lesione personale a causa di onore". Diritto24.
  27. Greg Woolf (2007). Ancient civilizations: the illustrated guide to belief, mythology, and art. Barnes & Noble. p. 386. ISBN 978-1-4351-0121-0.
  28. http://www.ohchr.org/Documents/Issues/Women/WG/BackgroundNoteAdultery2.doc
  29. The Coroners and Justice Act 2009 (Commencement No. 4, Transitional and Saving Provisions) Order 2010 (S.I. 2010/816 (C. 56)), article 6(b); and see here
  30. "Coroners and Justice Act 2009".
  31. "BBC NEWS - UK - UK Politics - Queen's Speech: Bill-by-bill".
  32. "Coroners and Justice Act 2009".
  33. "Coroners and Justice Act 2009".
  34. Vera Baird. "'Infidelity plus' – the new defence against murder". The Guardian.
  35. Hodge, Katie (22 July 2009). "12 years for man who killed partner and lover". The Independent. Retrieved 16 June 2019.
  36. "Man cleared of canal boat murders". 30 June 2009. Retrieved 3 July 2016 – via bbc.co.uk.
  37. "Murder can be 'crime of passion', says top judge". Retrieved 3 July 2016.
  38. "Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women" (PDF). Retrieved 2019-11-05.
  39. "Archived copy". Archived from the original on 2015-07-30. Retrieved 2015-08-12.CS1 maint: archived copy as title (link)
  40. "Uruguay no condena el homicidio por adulterio".
  41. "Violencia doméstica: proponen derogar artículo 36, sobre "pasión provocada por el adulterio"".
  42. "Nuestro Código exonera homicidio por adulterio". Diario La República.
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