Chapter Two

Go to 2.1 Introduction.

Go to �2.2 Jurisdictions where crimes of passion are incorporated directly.

Go to 2.3 Jurisdictions where crimes of passion are incorporated indirectly.


2.1 Introduction

Although the crime of passion is not recognised in England and Wales as a separate issue, this is not the case in other jurisdictions. For example, in Brazil, committing a crime of passion is seen as a matter of honour and this honour is compromised if the homicide does not take place (Besse, 1989). It is also a different matter in several European countries, which will be discussed later in this chapter. In order to see the arguments for and against the inclusion of the crime of passion into English law, the situation regarding its status in other jurisdictions needs to be examined. In some countries the crime of passion exists as a separate entity in the legal system, whereas others incorporate it solely as a part of their defence of provocation. This could be said to be basically the situation in England and Wales at present. Through examining its status in other jurisdictions, it will be discovered whether it would be a viable option to incorporate the crime of passion into the criminal justice system of England and Wales on a more permanent and absolute basis.


�2.2 Jurisdictions where crimes of passion are incorporated directly

I will first discuss jurisdictions where the crime of passion is a separate entity, and then continue with those which incorporate it into the defence of provocation. A jurisdiction which incorporates the crime of passion directly is France. To be able to understand how the crime of passion is viewed there, it is first necessary to study its history as part of French legislation and also the context of the society in which it has grown.

The concept of the crime of passion, along with infanticide, was the main cause of a reform in 1832 (Ancel, 1958). The result of this reform was the 1832 revision of the Penal Code. In this revision the idea of mitigating circumstances was introduced. This was done in an attempt to stop the jury from acquitting those who had committed a crime of passion, and to encourage them to condemn the criminal instead. However, it had the opposite effect, and juries acquitted them more often than before (Ancel, 1958). The reason for this leniency was that the jury had a romantic conception of the impassioned offender, and felt that he was a character worthy of their pity. This romantic notion continued to persist for over sixty years, and the offender who had committed a crime of passion continued to be dealt with leniently. This was seen in a favourable light by those who encouraged individualisation of offences and offenders, as by acquitting such offenders they could be seen to be taking into account the individual circumstances of the offence, and giving an individual sentence accordingly (Ancel, 1958).

In these sixty years, criminologists were busy in their pursuit of understanding the crime of passion. At this time Lombroso was developing his theory of the born criminal (Lombroso, L'uomo delinquente, 1876) but the crime of passion could not fit into this category, as it exists purely due to the circumstances at the time it is committed. Garofalo suggested that the person who committed a crime of passion was not a danger to society, as once he had committed the crime, there was no reason for him to offend again (V. Criminologie, 2nd French edition, 1890, p.414). Enrico Ferri came up with several ideas regarding the crime of passion - he believed that the crime of passion was driven by higher, more noble motives than other crimes, and that it was useless for society to react in any normal way towards such a person. In 1921, Ferri published a penal code, which encouraged the crime of passion to go unpunished. It recommended a judicial pardon, whereby the judge would not pronounce a sentence, but the offender would attempt to put right any wrongdoing he had caused towards the victim, perhaps by financial compensation (Ancel, 1958).

This code was quickly disregarded by other criminologists as being too simplistic. Kinberg pointed out (Kinberg, O. Quelques aspects criminologiques r�cents, Rev. de Science Crim., 1957, p. 791, as discussed in Ancel, 1958) that a crime of passion, as understood by his contemporaries, is often accompanied by premeditation, and that the motives are a mixture of greed, selfishness and a lack of sense of justice.

In this period, some new distinctions appeared. It was suggested that, contrary to the thoughts of the Positivists, the crime of passion could easily be the deed of an abnormal, mentally ill or unbalanced person, and that the crime of passion disguises pathological states which are the true causes of crime ( V. Seelig, Traite de Criminologie, 1956, in Ancel, 1958). This is not always the case however, as sometimes the crime of passion is committed by a normal person free of any psychological problems, apart from a violent emotion, which paralyses all their inhibitions, and allows them to commit the crime. In some individuals, a heightened degree of emotion is all that is needed to create a mental problem in a previously stable person. Altavilla, (in Psicologia giudiziaria, 1938, as stated in Ancel, 1958) amongst others, believed this to be the sole cause of the crime. But in other cases the impassioned criminal knows exactly what it is that they are doing. They prepare their crime with care, and then seek to escape from their actions. Because of this, criminal psychology rejected the traditional romantic conception of the crime of passion (Ancel, 1958).

On this point, V. de Greeff (Introd. � la Criminologie,1948, p. 358, as quoted in Ancel, 1958) stated that the honest man, "amen� par des circonstances p�nibles � commettre un crime passionnel est un mythe" - that is, brought by painful circumstances to commit a crime of passion is a myth. It was also realised at this time that the crime of passion is not uniquely caused by amorous jealousy, but also by envy, resentment, hatred and fear, which could cause an outburst of such criminal passions (Ancel,1958).

From this discussion, one can see that thoughts on the crime of passion have progressed since the time of Lombroso and Ferri. However, the social commentary regarding the crime of passion is not the only thing to have changed in France: penal law has also changed its opinion on the matter.

The French penal law of the nineteenth century was based on moral responsibility, free will, the objective consideration of crimes, and a retributive sentence, and so tended to ignore the crime of passion. However, it did take into account, in some cases, a crime committed under the influence of a violent emotion (Ancel, 1958). The Code p�nal fran�ais, 1810, article 324, allowed absolution for the husband who killed his wife in flagrant d�lit, that is, caught in the act of adultery. He was also absolved if he killed his wife's lover if they were caught red-handed.

In the early twentieth century, French penal law tried to rebel against the ancient conception of the crime of passion (Ancel, 1958). The attitude was held that if the crime was socially dangerous, and was not a noble act, it was necessary to react violently against it. The Italian penal code of 1930 in article 90 was in the same vein as this. It stated that an emotional or passionate crime should not create an automatic absence or decrease in punity. This was to dispel any doubts that had sometimes arisen due to the previous legislation of 1889, which had been in favour of the crime of passion. It was also the reasoning behind article 123 of the French penal code of 1938. This concept of the crime of passion as a serious offence was not accepted by everyone and there was still a tendency in legislation to reduce its seriousness (Ancel, 1958).

At the beginning of the twentieth century, the criminal courts in France attempted to apply article 64 of the penal code to offences committed under the influence of a violent passion. This article stated that:

"il n'y a ni crime ni d�lit lorsque le pr�venu �tait en �tat de d�mence au temps de l'action ou lorsqu'il a �t� contraint par une force � laquelle il n'a pu r�sister";

that is, it is not a crime or a tort if the defendant was in a state of insanity at the time of the action, or if they were compelled by a force which they could not resist. This is especially the case where a death threat is given by a wife to her husband having been provoked by a battering from him (Ancel, 1958).

Criminologists however rejected this idea, and the Cour de Cassation was made to reject it as well, saying that the crime of passion was not a result of insanity, and that it should not be considered as a state of enforced behaviour, since it is not a separate state detached from the offender (Ancel, 1958). In Austria and Italy, the same solution was found, whilst in Germany, Portugal and to some extent England, the courts showed themselves to be more disposed to recognising the extenuating circumstances involved in the crime of passion (Ancel, 1958).

The Cour d'assises, which normally judges the most serious crimes, employs the use of a jury which does not have to justify its sentence. In 1908, the acquittals of the crime of passion had become so frequent that it almost appeared to be the rule. Many people outside France believed this to be the case and it was said that in France the crime of passion was not punished by any sentence. This may have seemed to be the case, but in 1908, it was only practise that created this idea (Ancel, 1958).

Since that time, there have continued to be sensational acquittals which seem to back up this theory of laissez-faire. Ancel (1958) suggests that the reason for this is that the jury is composed of simple, ignorant, narrow-minded men who are too easily impressionable by clever lawyers. These lawyers prey on their sense of pity for the man who acts without realising what he is doing, sacrifices the person he holds most dear, tries to commit suicide after the event or is carried away by the need for vengeance - the jury subsequently feels this pity, understands it and then excuses it. The romantic conception of the crime of passion joins human pity with an instinctive need to pardon.

Whilst Ancel in 1958 blamed acquittals on the easiness of the lawyer to sway the jury, in 1973 Sparrow reported the results of an opinion poll done in France in 1971. It showed that a majority of people surveyed (70%) were in favour of the death penalty for murder where the motive was one of acquisition, feelings of power or convenience. However, only a small minority thought the death penalty for murder was appropriate when it was described as "murder over a love affair" (Sparrow, 1973). This suggests that it is not just the courts that are flexible but the general public as well. It is not, as Ancel (1958) suggests, the fault of a persuadable jury, but the feelings of the country's general public as a whole which creates this mood of acquittal.

Between the end of the First World War and 1958, acquittals of crimes of passion became less frequent, and the sentences became more severe. From 1946 to 1953, thirty-three crimes of passion were given sentences: two were given the death penalty, eleven were given forced labour for life, 12 were given forced labour for a set time, and eight were given imprisonment (Ancel, 1958).

There are several reasons why this change in heart may have taken place. The first is that, in 1941, France went through a reform of its legal system, in particular the reduction of the number in the jury, which was reduced from twelve to seven. These seven sat with three magistrates and deliberated on the blameworthiness of the offender and the sentence (Ancel, 1958). This means that the professional influence on the outcome was increased and therefore a result was more likely to be closer to that recommended by the law.

Another reason may be due to the admittance of women into the jury since 1945. Contrary to what one might think they were, in general, more severe than men, and less disposed to be moved by the criminal or think on him as a hero. In France at this time, as is the case in Great Britain now (Browne A., Williams, K.R., and Dutton, D.G., 1999), crimes of passion were more often committed by men against women - in the 33 previously mentioned cases, 32 were committed by men and only one was committed by a woman. A female juror perhaps feels a certain sentiment of defence towards herself against the risk of passionate aggression.

The third reason might be that the French jury was less sensitive to the purely sentimental feelings of the deceived husband or the abandoned mistress following the war and the harshness of the occupation. They had witnessed larger suffering than this during the Second World War and had a greater conscience of the irreplaceable value of human life, as during this period life had been regarded as a cheap commodity (Ancel, 1958).

However, as has already been mentioned, this harshness towards the crime of passion has once again been reversed. This can be shown in the survey reported by Sparrow (1973). The present feeling in France is that the crime of passion is not seen as a crime deserving of the death penalty, whilst other types of murder are (Weir, 1992). There exists a leniency towards the crime passionnel, although there still does not exist an official legal definition. In the highest courts in France, three judges and a jury of nine establish guilt, two more laymen having been added to the jury since the 1941 reforms. Where a crime of passion is being tried, the judges confer with the jury to establish whether passion is a contributing factor to the offence. (Weir, 1992). This leniency suggests that France has a more understanding outlook on the crime passionnel than Ancel (1958) would have us think. Monsieur Georges Catala, speaking to Le Monde (Inciyan, E., no date) confirmed that an assises jury often shows itself to be lenient when faced with non-premeditated crimes of passion.

The legal reason for this leniency can be found in Article 122-1 of the Code p�nal, which has been in place since 1994, when it replaced article 64 of the 1810 penal code (Thomas, S., no date). This article states that:

N'est pas p�nalement responsable la personne qui �tait atteinte, au moment des faits, d'un trouble psychique ou neuropsychique ayant aboli son discernement ou le contr�le de ses actes.

La personne qui �tait atteinte, au moment des faits, d'un trouble psychique ou neuropsychique ayant alt�r� son discernement ou entrav� le contr�le de ses actes demeure punissable; toutefois, la juridiction tient compte de cette circonstance lorsqu'elle d�termine la peine et en fixe le r�gime.

This declares that a person who, at the time of the offence, is suffering from a mental or neurological problem which causes them to lose their discernment or control of their acts, is not criminally responsible. It goes on to explain that if the problem only results in partial alteration of their discernment or only hinders the control of their actions, the person remains responsible. If this is the case, however, these circumstances are taken into account when deciding on the sentence of the offender (Penal Code, 1994).

Although this article seems to relate to persons with psychological problems, in practise it also applies to crimes of passion (Thomas, S., no date). In this way, if it is established by an expert in court that the perpetrator of a crime of passion had a lack of self control and discernment, he will be found not to be criminally responsible. However, if it is shown that the perpetrator of a crime of passion had an element of self control and understanding of what was taking place, which is often the case in crimes of passion, then the judges and the jury are likely to look on the case in a more favourable light than if their passion was not an issue, as recommended by article 122.

France is not the only jurisdiction to have embraced the crime of passion as a separate issue in its past. The penal codes of Belgium (1867, article 413), Romania (1937, article 155), Italy (1930, article 587) and Spain (1944, article 428) allowed absolution for the husband who killed his wife in flagrant d�lit, whilst article 428 of the Spanish penal code (1944) and article 587 of the Italian penal code (1930) allowed a father or a brother to benefit from the same absolution (Ancel, 1958).

Global legislation also demonstrates that France was not the only jurisdiction to have had a lenient stance on crimes of passion, with a tendency to reduce its seriousness. There are three variations on this. The most liberal legislation excludes all responsibility in cases of people who have a temporary lack of self control due to an emotion or passion, although they are usually normal and of sane mind. This is the case in the penal code of Spain, 1932, article 8, as well as the Cuban code of social defence 1936, article 34, and Mexican penal code, 1931, articles 15(2) and 15(3) (Ancel, 1958).

A less liberal stance than this was taken by some jurisdictions in the early twentieth century. With these jurisdictions, the offender is said to have diminished responsibility, but not a complete lack of it, if the violent passion is an extenuating circumstance. The law sees this as a separate issue and treats it as such. This is the case in the penal codes of Poland (1932, article 225(2)), Greece (1950, article 299), Bulgaria (1951, article 128), Denmark (1930, article 85), Greenland (1954, article 88(3)), Uruguay (1934, article 46), and Colombia (1936, article 38(3)) (Ancel, 1958).

The most restrictive of these three views of crimes of passion being less serious reduces the punishment by saying that the crime is committed under the influence of a violent passion, which is irresistible, and that the circumstances under which the crime is committed render this emotion excusable. This adds an objective element to the situation which is easily controllable - that of the psychological state of the individual. This solution was reached after a careful study of the problem by the Swiss penal code of 1937, whose example was also followed by the penal code of Yugoslavia, 1951 (Ancel, 1958).

Brazil has also had a law governing the crime of passion, and in 1910 - 1940 the rate of crimes of passion became increasingly problematic. The crime of passion was allowed in Brazil due to the Portuguese law which stated that: "a married man who discovered his wife in the act of committing adultery had the legal right to kill both her and her suitor" (Besse, 1989). This social custom did not die out. According to Revista Feminina, a women's magazine of the time, by 1924, there was a woman being killed by a man every half hour, although there is no further statistical evidence to back this up. There was also a growing number of women killing their husbands as a means of release from the violence they were being subjected to. There are many theories as to why this may have taken place. It is suggested (Besse, 1989) that there was not such a huge rise in the rate of the crime of passion as is purported, but that the perception of this rise was due to sociological change.

This perceived rise in the rate of crimes of passion gave rise to a movement campaigning against the tolerance of crimes of passion called the Conselho Brasileiro de Hygiene Social (CBHS, Brazilian Council on Social Hygiene). This council strove to end the mercy shown to those accused of crimes of passion by Brazilian society. This, it seems, they managed to do to some extent, through exposing the motivations of the crime of passion, re-educating society, destroying social conventions, rejecting legal doctrines relating to the subject and imposing severe sentences on those accused. Because of this work, in 1940, there was a revision of the penal code which stated that passion or emotion no longer excluded criminal responsibility (Besse, 1989). After this, concern over crimes of passion subsided. It had been a serious concern however, as it had been beginning to break down society, through lack of respect of life, the spouse and the family unit. This is an important aspect to consider when thinking about the social response to incorporating crimes of passion into the English legal system, and will be returned to in Chapter 3.

There are a few states of America which incorporate the crime of passion separately into their legal system. In some states of America, in the last half of the nineteenth century, the "unwritten law defence" was developed (Mullen, 1989). This "unwritten law" alluded to the idea that someone who kills their spouse's or daughter's lover is not guilty of a crime. Despite it not actually being law, some attempted to use it as a defence (Mullen, 1989). In states such as Texas however, this notion found official recognition. The Texas 1989 - 1990 Penal Code, Section 19.04 regarding Voluntary Manslaughter states that:

(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.

(b) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.

(c) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.

This section reduces the offence from one of first degree murder to one of second degree murder, voluntary manslaughter instead of murder, thus ensuring that the offender has a lighter penalty if it is a crime of passion that has taken place. Other US jurisdictions, including New Mexico and Utah are even more lenient. In these places, a husband who finds his wife in flagrante delicto with another (that is committing adultery with another) and then kills his wife or her lover gets completely acquitted, as the opinion is that no crime has taken place (Weir, 1992).


2.3 Jurisdictions where crimes of passion are incorporated indirectly

In most US jurisdictions, the term "heat of passion" arises somewhere in their penal code. The heat of passion is most often seen as part of the defence of provocation, and thus reduces it to manslaughter. This is where the concept of the heat of passion appears, using words like "upon a sudden quarrel or heat of passion" (Idaho, 1979, Nebraska, 1979, South Dakota, 1979) or "committed in the heat of passion resulting from a reasonable provocation" (New Mexico, 1978) in the definition of manslaughter (Dressler, 1982). Some states, in defining manslaughter, have worded it in a similar way to the Model Penal Code which was proposed by the American Law Institute in 1980 (Dressler, 1982). This code stated that manslaughter was any intentional killing:

committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or cause. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.

Wording it in such a way reduces the need for a definition of what provocation constitutes, and gives the jury more freedom to do justice to the individual case. This has only been followed up by eleven states however, and so a minority are in this situation (Dressler, 1982).

The situation in Canada, both English and French speaking regions, is similar to that of the United States of America, in that crimes of passion are seen as voluntary homicides and as such are not first degree murders, but only second degree murders, and therefore are punishable by a lesser penalty (Nunziata, J., no date). Whilst in Canada first degree murders are punishable by life imprisonment with no chance of parole for twenty five years, the punishment for second degree murder is one of life imprisonment without parole for ten years (Victimsofviolence, cp.htm, no date).

The defence of provocation could also be used by the impassioned criminal in Canada. The Criminal Code, Section 232 describes provocation as being "a wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control". If an offender uses this defence, the charge of murder will be reduced to manslaughter, and the sentence will be dramatically reduced, with maybe only three to seven years' imprisonment (Huang, A., no date).

In this chapter, I have studied how the crime of passion is incorporated directly and indirectly in legislation of different jurisdictions. This has been achieved by examining the process through which the crime of passion has emerged with the status that it has in modern-day France, and discussing the social and legal reasons why there is a policy of leniency towards the passionate criminal. Following this, the situation in other countries was also examined, concentrating on Brazil and the US, but also mentioning Canada and various other countries. From the literature studied, it seems that those countries which incorporate the crime of passion directly have a much more lenient approach to their treatment of the offence, sometimes not even classing it as an offence, than those countries which incorporate it indirectly as part of the provocation defence. Really, England and Wales can be included in the second category, as crimes of passion are at present a part of the defence of provocation.

I will next examine the advantages and disadvantages of incorporating the crime of passion more directly, thus assessing how it would affect the legal system, the social effect it would have and also the political effect.


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