Crime of passion

A crime of passion, or crime passionnel (from French), in popular usage, refers to a violent crime, especially homicide, in which the perpetrator commits the act against someone because of sudden strong impulse such as sudden rage rather than as a premeditated crime.^[1]

Description

The defense in the crime of passion challenges the mens rea element by arguing that there was no malice aforethought and instead the crime was committed in the "heat of passion" and lowers the charge to manslaughter or second degree murder from first degree murder. Examples include an aggressive pub-goer who assaults another guest following an argument, or a wife who discovers her husband has engaged in adultery and attacks or kills him and/or his mistress.

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. 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 honor 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 convents 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 offence.^[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 interior of the country, 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

Crimes of passion are often associated with France, where, before 1975, they were treated legally very leniently.^[12] The Napoleonic Code, which tolerated these crimes, has been very influential, both inside and outside Europe, and many former French colonies, where the laws continue to be based on it, offer the possibility of reduced sentences in regard to adultery-related violent crimes.^[13]

The Napoleonic Code was extremely powerful in its influence over the world; historian Robert Holtman regards it as one of the few documents that have influenced the whole world.^[14] The Napoleonic Code, Article 324, which was passed in 1810, permitted the murders of an unfaithful wife and her lover at the hand of her husband,^[15] though only where the husband caught the errant wife and her lover in the matrimonial home and also in flagrante delicto.^[16] It was abolished only in 1975. On November 7, 1975, Law no. 617/75 Article 17 repealed the 1810 French Penal Code Article 324. Many countries, including Western countries, such as Belgium, were legally influenced by the Napoleonic Code: as a legacy of the very influential Napoleonic Code, before 1997, Belgian law provided for mitigating circumstances in the case of a killing or assault against a spouse caught in the act of adultery.^[17][18] (Adultery itself was decriminalized in Belgium in 1987.)^[19] In Luxembourg, article 413 which provided mitigating circumstances for murder, assault and injury of an adulterous spouse was repealed in 2003.^[20][21]

The 1810 penal code Article 324 passed by Napoleon was copied by Middle Eastern Arab countries. It inspired Jordan's Article 340 and Article 98.^[22][23] France's 1810 Penal Code Article 324 also inspired the 1858 Ottoman Penal Code's Article 188; both the French Article 324 and Ottoman article 188 were drawn on to create Jordan's Article 340, which was retained even after a 1944 revision of laws, and still applies to this day.^[24][25][26] France's Mandate over Lebanon resulted in its penal code being imposed there in 1943-1944, with the French inspired Lebanese law for adultery allowing the mere accusation of adultery against women resulting in a maximum punishment of two years in prison while men have to be caught in the act and not merely accused, and are punished with only one year in prison.

France's Article 324 inspired laws in other Arab countries like Algeria's 1991 Penal Code Article 279, Egypt's 1937 Penal Code no. 58 Article 237, Iraq's 1966 Penal Code Article 409, Jordan's 1960 Penal Code no. 16 Article 340, Kuwait's Penal Code Article 153, Lebanon's Penal Code Article 193, Article 252, Article 253, 1943 Penal Code Article 562, amended in 1983, 1994, 1995, 1996, 1999 and repealed by the Lebanese Parliament on August 4, 2011, Libya's Penal Code ARticle 375, Morocco's 1963 amended Penal Code Article 418, Oman's Penal Code Article 252, Palestine which had two codes, Jordan's 1960 Penal Code 1960 in the West Bank, British Mandate Criminal Code Article 18 in the Gaza Strip, which were respectively repealed by Article 1 and Article 2 and both by Article 3 of the 2011 Law no. 71 which was signed on May 5, 2011 by President Mahmoud Abbas into the October 10, 2011 Official Gazette no. 91 applying in the Criminal Code of Palestine's Northern Governorates and Southern Governorates, Syria's 1953 amended 1949 Penal Code Article 548, Tunisia's 1991 Penal Code Article 207 which was repealed, United Arab Emirate's law no.3/1978 Article 334, Yemen's law no. 12/1994 Article 232.

Italy

As with other countries in Mediterranean Europe, Italy has a long tradition of treating crimes of passion with leniency. Indeed, 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.^[27][28]

Roman Empire

In the Roman Empire the Roman law Lex Julia de adulteriis coercendis implemented by Augustus Caesar permitted the murder of daughters and their lovers who committed adultery at the hands of their fathers and also permitted the murder of the adulterous wife's lover at the hand of her husband.^[29]

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".^[30] Although provocation in English law was abolished on 4 October 2010^[31] by section 56(1)^[32] of the Coroners and Justice Act 2009,^[33] it was replaced by a relatively similar defence of "loss of control" created by section 54.^[34] There has been considerable controversy regarding the application by the courts of the new law; although section 55^[35] 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 recent 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."^[36]

A court in the UK dropped murder charges and instead only filed manslaughter for the murder of Paul Wilkins and Kay Morton after Kay's boyfriend William Cranston killed them in his fury.^[37] "Loss of control" in the murder of unfaithful women by their male partners was considered acceptable as a reason to kill by Lord Chief Justice Lord Judge of England, the murder of the wife of Jon Clinton by Jon was examined by Lord Judge who ordered a retrial, overturning the original life sentence and allowing the infidelity of his wife to be entered as evidence.^[38][39]

United States

The murderer of Tonya Lynn, who committed infidelity, her husband James Lynn Jr., was given a retrial with evidence of his wife's cheating included while his original murder conviction was thrown out by the Georgia Supreme Court.^[40] In the murder case of Fumiko Ogawa, a plea deal which agreed that the murder was committed due to a "sudden quarrel in the heat of passion" saw her husband Anthony Simoneau's sentence reduced from murder to 11 years for voluntary manslaughter.^[41] Tulsa police officer, Betty Shelby, who shot Terence Crutcher, shows that she has been charged with first-degree manslaughter in heat of passion.

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".^[42] Article 36 of the Criminal Code provides for this:

Artículo 36. (La pasión provocada por el adulterio)^[43]

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 all the following requirements exist: 1. The offense is committed by a spouse against the other spouse caught in the act or against the lover. 2. The perpetrator has a good record and the opportunity to commit the crime has not been caused 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.^[44][45][46]

Notable examples

France

• Henriette Caillaux
• Albert Lemaître

United States

• Lorena Bobbitt
• Nicole Brown Simpson
• Mary Jo Buttafuoco
• Death of Steve McNair
• Lisa Nowak
• Murder of Nikki Whitehead

See also

• Adultery
• Domestic violence
• Honor killing
• Murder-suicide
• Voluntary manslaughter

References