Crime of passion

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A crime of passion, or crime passionnel, in popular usage, refers to a violent crime, especially murder, in which the perpetrator commits the act against someone because of sudden strong impulse such as sudden rage rather than as a premeditated crime. The act, as is suggested by the name (crime passionnel from French language) is often associated with the history of France. However, such crimes have existed and continue to exist in most cultures.[1]

Description[edit]

A crime of passion refers to a criminal act in which the perpetrator commits a crime, especially murder or assault, against someone because of sudden strong impulse such as sudden rage rather than as a premeditated crime.[2] A typical crime of passion might involve an aggressive pub-goer who assaults another guest following an argument or a husband who discovers his wife has made him a cuckold and proceeds to brutally batter or even kill his wife or the man with whom she was involved.

In the United States, crimes of passions 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, but was mostly used 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 which acts by converting what would otherwise have been murder into manslaughter.

In some countries, notably France, crime passionnel (or crime of passion) was a valid defense during murder cases; during the 19th century, some cases could be a custodial sentence for two years for the murderer, while the spouse was dead; this ended in France as the Napoleonic code was updated in the 1970s so that a specific father's authority upon his whole family was over.

Advocacy[edit]

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]

Although there are differences between crimes of passion (which are generally impulsive) and honor killings (which are generally planned - with the involvement of several family members), 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 phenomenon of 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 states that member states should: (...) 57. preclude adultery as an excuse for violence within the family.[5]

By country[edit]

Australia[edit]

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 increase 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.[8] ACT and Northern Territory have amended the laws to exclude non-violent homosexual sexual advances, in 2004 and 2006, respectively.[9] 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".[10] In 2014, the New South Wales law on provocation was amended, that the provocative conduct of the deceased must also have constituted a serious indictable offence.[11]

Brazil[edit]

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.[12][13][14]

France[edit]

Further information: Napoleonic Code

Crimes of passion are often associated with France, where, before 1975, they were treated legally very leniently.[15] 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.[16]

Italy[edit]

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.[17][18]

United Kingdom[edit]

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".[19] Although provocation in English law was abolished on 4 October 2010[20] by section 56(1) of the Coroners and Justice Act 2009,[21] it was replaced by a relatively similar defence of "loss of control" created by section 54. There has been very much controversy regarding the application by the courts of the new law; although section 55 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 & Zhao 2012). This decision has received heavy criticism from academics (see Baker & 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, she wrote "It seems that parliament says infidelity doesn't count and the court says it does."[22]

Uruguay[edit]

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

Artículo 36. (La pasión provocada por el adulterio)[24]

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.[25][26][27]

Notable examples[edit]

France[edit]

See also[edit]

References[edit]

  1. ^ http://legal-dictionary.thefreedictionary.com/crime+of+passion
  2. ^ "crime of passion". The Free Dictionary. Retrieved 23 December 2011. 
  3. ^ http://www.endvawnow.org/en/articles/738-decriminalization-of-adultery-and-defenses.html%29
  4. ^ http://news.nationalgeographic.com/news/2002/02/0212_020212_honorkilling.html
  5. ^ https://wcd.coe.int/ViewDoc.jsp?id=280915&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383
  6. ^ http://www.parliament.nsw.gov.au/Prod/parlment/publications.nsf/0/F2BA1BFEED2D87EECA257A4800001BD7/$File/briefing%20paper.provocation%20and%20self-defence.pdf
  7. ^ http://anj.sagepub.com/content/45/2/194.abstract
  8. ^ http://www.parliament.nsw.gov.au/Prod/parlment/publications.nsf/0/F2BA1BFEED2D87EECA257A4800001BD7/$File/briefing%20paper.provocation%20and%20self-defence.pdf
  9. ^ http://www.parliament.nsw.gov.au/Prod/parlment/publications.nsf/0/F2BA1BFEED2D87EECA257A4800001BD7/$File/briefing%20paper.provocation%20and%20self-defence.pdf
  10. ^ http://www.parliament.nsw.gov.au/Prod/parlment/publications.nsf/0/F2BA1BFEED2D87EECA257A4800001BD7/$File/briefing%20paper.provocation%20and%20self-defence.pdf
  11. ^ http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s23.html
  12. ^ http://www.nytimes.com/1991/03/29/us/honor-killing-of-wives-is-outlawed-in-brazil.html
  13. ^ http://www.endvawnow.org/en/articles/738-decriminalization-of-adultery-and-defenses.html
  14. ^ http://www.law-lib.utoronto.ca/Diana/fulltext/nels.htm
  15. ^ http://www.gallup.com/poll/107521/Common-Ground-Europeans-Muslims-Among-Them.aspx
  16. ^ http://hbv-awareness.com/regions/
  17. ^ http://www.surt.org/gvei/docs/national_report_italy.pdf
  18. ^ http://www.diritto24.ilsole24ore.com/guidaAlDiritto/codici/codicePenale/articolo/716/art-587-omicidio-e-lesione-personale-a-causa-di-onore.html
  19. ^ http://www.ohchr.org/Documents/Issues/Women/WG/BackgroundNoteAdultery2.doc
  20. ^ 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
  21. ^ http://news.bbc.co.uk/1/hi/uk_politics/7762405.stm
  22. ^ http://www.theguardian.com/commentisfree/2012/jan/23/infidelity-plus-defence-murder
  23. ^ http://www.refworld.org/pdfid/478b656a2.pdf
  24. ^ http://www.parlamento.gub.uy/Codigos/CodigoPenal/l1t2.htm
  25. ^ http://www.infobae.com/2013/11/26/1526432-uruguay-no-condena-el-homicidio-adulterio
  26. ^ http://www.uypress.net/uc_46564_1.html
  27. ^ http://www.republica.com.uy/increible-pero-cierto-nuestro-codigo-exonera-homicidio-por-adulterio/407286/