Chapter Three
 

Go to 3.1 Introduction.

Go to 3.2 Legal effects.

Go to 3.2.1 Individualisation and the mandatory life sentence.

Go to 3.2.2 Battered women.

Go to 3.3 Social issues.

Go to 3.3.1 Acceptance of murder.

Go to 3.3.2 Punishment.

 

3.1 Introduction

To examine whether or not it would be a good idea to incorporate a separate piece of legislation regarding the crime of passion in its own right into the criminal justice system of England and Wales, the present criminal law regarding homicide and its various defences has so far been discussed. Also the experiences of other jurisdictions in this field have been analysed. Through doing this it is now possible to see some perceived advantages, disadvantages and problems posed by the incorporation of the crime of passion. The legal effect of such a change will first be discussed.

 

3.2 Legal effects

3.2.1 Individualisation and the mandatory life sentence

The most major effect that such a change could have on the criminal justice system of England and Wales would be to the mandatory life sentence rule. As was explained in Chapter One, murder is punishable by a mandatory life sentence, whilst manslaughter is punishable by a discretionary life sentence (Lacey and Wells, 1998). With the introduction of the crime of passion as a separate issue, this mandatory life sentence may be called into question, as individualisation of the crime is encouraged. However, to avoid this issue of debate, the crime of passion could be introduced not as a separate issue or offence, but as a defence. In claiming a defence of crime of passion, the murder would then be reduced to manslaughter, and thus a discretionary life sentence as punishment, with the policy of the individualisation of murder remaining the same as it currently is.

The individualisation of murder is an important issue that needs to be considered however. For example, in a crime of passion that has arisen due to previous domestic violence and the response of a battered woman, a charge of murder may not necessarily be the right charge to make in view of the circumstances - however, it could not altogether be manslaughter either, as the offender intended to kill their spouse. A defence of provocation might be forwarded, as continuous provocation has caused the situation, but this does not fit the bill securely either. The circumstances of every murder are different in some way, and it is seen as unjust by some including Lord Bingham (Lord Bingham, 1998) that they should all be seen as the same crime and get treated equally.

Lord Bingham states in his lecture at the Police Staff College, Bramshill (Lord Bingham, 1998) that it is morally wrong to sentence an offender without the circumstances of the crime being considered. There are several such circumstances that should be taken account of before sentencing and there needs to be a correct balance between the crime and the punishment. Having said all this, however, he reminds his audience that this is exactly what takes place when the crime in question is murder. The crime is generalised to the lowest common denominator, and the compulsory sentence of life imprisonment is given. The actual time of imprisonment is not stated at trial but decided later by the Home Secretary of the time (Lord Bingham, 1998).

Lord Bingham is among many people who do not approve of this practise. Judges deal with every other crime and are experienced at sentencing fairly, whilst the Home Secretary however has no experience. It is true that they often ask the trial judge and the Lord Chief Justice for advice on the matter, but they can reject this if they do not agree (Lord Bingham, 1998). Whilst for every other criminal offence in the criminal justice system of England and Wales the offender or Attorney-General can appeal against the sentence given, no-one can appeal against the decision of the Home Secretary. The tariff for the offender is set, and only the Home Secretary can change this when, or rather - if, he considers the case again (Lord Bingham, 1998).

A life sentence doesn't have to be done like this however. Where a lesser sentence such as manslaughter is considered, it is treated in the same way as every other crime - when sentencing, the judge explains all the relevant mitigating circumstances, and apportions punishment accordingly, giving the recommended tariff at the same time, which could be life imprisonment, as there is a discretionary life sentence.

Another argument regarding this system (Lord Bingham, 1998) is that while an offender can be given a mandatory life sentence if he kills a person accidentally, the person who attempts to murder but does not succeed is only given a discretionary life sentence. Surely this person who attempts to murder another is more deserving of a mandatory life sentence than the person who killed someone by accident?

This whole issue would have to be redefined if a "crime of passion" were introduced. Whilst at the moment, every murder is punishable by a mandatory life sentence, regardless of mitigating circumstances, with the introduction of the crime of passion, such circumstances would have to be taken into account to prove that the offence was a crime of passion, and an automatic sentence covering all murders abolished.

The situation as it stands at the moment is relatively clear cut - all murders are punishable with a mandatory life sentence, unless there is a suitable defence, such as provocation, in which case it is reduced to a charge of manslaughter and the life sentence is discretionary (Smith and Hogan, 1992). The introduction of the crime of passion would muddy the waters somewhat. The whole policy would be forced to change. No longer could they take no notice of the extenuating circumstances of the case - they would have to look at the individual details of each case taking them all into account before sentencing. And if this were the case there would be no room for the Home Secretary to play his part. It would have to be completely down to the judge to decide the sentence, as it is he who has listened to all the evidence and only he would be qualified in this situation to take into consideration the extenuating circumstances of the case.

This very question has recently been addressed by a case which is reported in The Guardian newspaper (Dyer, 2001), where two men, Anderson and Taylor, serving life sentences for murder, contest the fact that the Home Secretary can fix their tariff. The lawyer representing the two men argued that this practice of a politician and not a judge fixing their tariff is in contravention of article six of the European Convention on Human Rights. Lord Woolf stated in an interview at the time that this case could mean that the Home Secretary's power to set the tariff might be removed (Dyer, 2001). However, the case was not successful, as it was concluded that "Parliament by primary legislation has conferred on the Home Secretary the power to fix the tariff for mandatory lifers" (Killers lose tariff challenge, 1184210.stm, no date).

With the mandatory life sentence being questioned in this manner, and with reference to such bodies as the European Court of Human Rights, although the men lost their case, there is the possibility that the practice could be changed in the future. If this were the case, there would not be many obstacles for the crime of passion to overcome if it were introduced as a separate issue. In this way, the criminal would be punished for what they themselves did specifically, as opposed to the general crime being punished. Each individual crime would be punished appropriately according to its own mitigating circumstances. This is what was taking place, in effect, in France in 1820, without the juries realising it - they were acquitting the offenders due to the situation the crime was committed in (Ancel, 1958), as was discussed in Chapter 2.

The idea of individualisation of a crime is only one problem that could be encountered when introducing the crime of passion into the criminal justice system of England and Wales. There are other issues that need to be taken into account. For example, at present, if the crime of passion does exist in our criminal justice system, it exists as a part of provocation, as it does in jurisdictions such as the United States (Dressler, 1982). In Chapter One it was stated that if the crime of passion were to be incorporated, it could be incorporated into the provocation defence. However, it is sometimes the case that an offender claims self-defence when his passions are aroused (R v Porritt [1961] 1 W.L.R. 1372). If the crime of passion were part of the provocation defence, this could not really take place, as you cannot claim self-defence (and therefore be wholly justified in your actions) and also claim your actions were due to a heat of passion (where you are only partially excused). Only one of the two defences can be claimed, otherwise the offender is contradicting themselves (Dressler, 1982).

 

3.2.2 Battered women

There is a situation that could quite easily confuse the issue - that of domestic violence and the battered woman syndrome. If the definition of a crime of passion that was discussed in Chapter One is used, (typically impulsive killings which are inspired by overwhelming emotion such as jealousy (Weir, 1992), within a familial unit, or between lovers), a killing due to battered woman syndrome could be classed as a crime of passion. This means that the crime of passion could be a defence that a battered woman might be able to rely on. It is therefore important to discuss the present situation regarding battered women, and how they fit in to the criminal justice system, as the crime of passion defence could affect the fate of such offenders.

Since the growth of awareness of the magnitude of the domestic violence problem that exists in England and Wales, the acceptance of battered woman syndrome has grown. However, problems are still encountered when women try to rely on it in court. As it is not an issue that the jury automatically knows about in their experience it has to be explained using expert evidence (Stubbs, J., Graycar and Morgan, no date).

The woman who kills her husband as a response to the years of abuse that he has given her cannot always rely on the criminal justice system to acquit her (Stubbs, J., Graycar and Morgan, no date). The biggest problem that she faces is that it has to be proved that there was no malice aforethought - no premeditation. This is often a problem due to the physical size of women. Generally speaking, a woman is much smaller in stature than a man and is also less strong. It is likely that a woman has had less physical training than a man, especially with regards to self-defence. All this means that if a woman tries to defend herself when her husband approaches her, she is unlikely to succeed without a weapon (Del Tosto, 1981).

What often happens instead is that the woman arms herself before the attack or places a weapon in a strategic position so that she has easy access to it during the attack. (Goma - unreported judgement of the Supreme Court of New South Wales, 27.4.94). This makes it difficult for her to claim self-defence, because she has prearmed herself, thus suggesting the presence of premeditation. If it was a self-defence situation, there would be no premeditation, as self-defence is an action which responds to the threat of the moment in question. However, if the woman had not armed herself in this way but defended herself using her bare hands, she would have been able to claim self-defence - but this bare-hands self-defence would have been far less likely to thwart her attacker (Stubbs, J., Graycar and Morgan, no date). The defence of crime of passion however would respond to the moment in question, whether it was predicted or unknown. The passion of the offender would be raised, and a crime of passion defence might be valid.

Another method that the battered spouse employs is to wait until she is out of the immediate situation of being battered, and then strike against her partner. An example of this would be where the battered woman waited until her partner was asleep in bed and then killed him (Bradley - unreported judgement of the Victoria Supreme Court of 7.12.94 and 14.12.94). The problem with this is that she would then find it very hard to use the defence of provocation (Hinchliffe, S. and Lloyd, D., no date). The provoking event has already passed, and there has been sufficient time for the woman to recover from it. When a person relies on the defence of provocation, the lethal reaction to it must be immediate (Allen, 1996). The person cannot claim that they have been provoked if they do not act straight away. This same problem occurs if the woman who hesitates tries to claim self-defence. It is unlikely that she is in danger of her life if her partner, the person abusing her, is asleep in bed (Del Tosto, 1981). It is therefore especially difficult for a woman in this situation to claim a defence of provocation or self-defence. It might be easier for her to claim a crime of passion, as although it is not an impulsive killing, her action is due to an intense emotion, which is a response to her partner's action. This emotion was present at the premeditation stage and is still maintained at the murder.

In order for such women to be acquitted or have their charge reduced from murder to manslaughter, they would have to rely on expert evidence regarding the Battered Woman's Syndrome (Stubbs, J., Graycar and Morgan., no date). One question which is often asked by those who have never been in an abusive relationship is why the abused person stays in that relationship and does not leave it. The Battered Woman's Syndrome helps to explain this. There are several reasons why she might not run away, including that there is nowhere else to go, that she is financially dependent on her partner and that there are children involved who are also at risk of being beaten (Stubbs, J., Graycar and Morgan, no date).

It may have been the case that the woman has tried to escape in the past but the abuser has found her again, and the beatings have increased both in quantity and aggressiveness. She therefore believes that it is completely useless to try to escape the situation, and indeed is safer not leaving. In this way, she becomes emotionally dependent on him, despite the fact that it is he who is beating her. She does everything that he tells her to do, because she knows that it is better than the alternative. While the abuser is threatening to kill his partner, he is not beating her, or indeed killing her (Stubbs, J., Graycar and Morgan, no date). It is explained by one such woman that "You put up with six days of beating because there is one good day to have someone to share things with..." (Del Tosto, 1981). This situation is called "learned helplessness", and is useful in court to explain why the woman found it necessary to kill her partner, and why there was no other alternative. It explains why the woman viewed her actions as justified, whether they were premeditated or not.

There are problems with this as well however. If there is learned helplessness on the part of the abused woman, how does she bring herself to fatally attack her abuser? This is hardly a sign of helplessness (Banks, S., no date). The inconsistency between the concept of learned helplessness (which is often seen as the central notion of the Battered Woman's Syndrome (Stubbs, J., Graycar and Morgan, no date)) and lethal self help could have a detrimental effect on her claim of self-defence.

Battered Woman's Syndrome is most often used to explain why killing an abusive partner is reasonable in the given circumstances. However, in America it has frequently had a different effect. According to Elizabeth Schneider, the courts have seen it as an indication of mental incapacity or as a psychological defence (Stubbs, J., Graycar and Morgan, no date), as it implies that the woman cannot help her actions, as she has learned to be helpless. This is not the case however, as in a survey by Walker, which interviewed 400 battered women, it was shown that battered women did not view themselves as having a lack of control over themselves or their situation (Stubbs, J., Graycar and Morgan, no date). In fact, as many women have attempted to help themselves, but have failed, this suggests that they are not mentally incapable, as they know exactly what they are doing, and that it is society that is helpless to act.

In Britain, the battered woman's syndrome is slowly being accepted by the courts. This is particularly shown by the cases of Sara Thornton (R v Thornton [1992] 1 All ER 306) and Kiranjit Ahluwalia (R v Ahluwalia [1992] 4 All ER 889.), two women who killed their batterers (Hinchliffe, S. and Lloyd, D., no date). In the case of Ahluwalia, her husband had abused her for years. Finally, in 1989, after being threatened with an iron and with other physical violence, she chose to retaliate. Whilst her husband was sleeping she doused him with petrol and set fire to him. He died of his injuries a week later. Ahluwalia was convicted of murder, but after much campaigning for a reduction to manslaughter, was released in 1992. Thornton's case was similar - she killed her husband after they had had an argument in which he threatened to kill his wife and daughter. Later, after he had settled down, she sharpened a knife and stabbed him in the stomach. She was also convicted of murder, but the conviction was later quashed (Hinchliffe, S. and Lloyd, D., no date). Another high profile case of this kind, with circumstances similar to Thornton, is that of Emma Humphreys, who was convicted of murder, a conviction which was later reduced to manslaughter on appeal (unreported decision of the Court of Appeal 7.7.95 (The Times, 7.7.95, pp. 1-2)).

In all three cases, the reasoning behind the original convictions was that the time lapse between the violence or threats of violence and the murder removed the option of a defence of provocation. It was held that in this period, a malicious intent had been formed, and that the crime was therefore murder. After campaigning by various agencies, all three cases were taken to the court of appeal. The agencies, in their campaigns, pointed out the injustice of judging women with the same yardstick as men, although women cannot react in the same way as men when they are provoked (Hinchliffe, S. and Lloyd, D., no date)- an issue that has already been discussed here. If a crime of passion had been a defence, these cases would have been able to benefit from it, whilst provocation failed, because despite the time lapse, the women were still reacting to an intense emotion.

On appeal however, Battered Woman's Syndrome was incorporated in all three cases. In Ahluwalia, it was held that a "cooling time" between the provocation and the killing could not be seen as invalidating the defence of provocation. It was also held that the jury should not, in a situation like this, be considering how the reasonable man might react, but how the reasonable woman with battered woman's syndrome might react. In Thornton, a retrial was ordered, with specific instructions that the jury should consider whether or not she was suffering from battered woman's syndrome. In Humphreys, it was held that it does not have to be a final act that provokes the murder, but a whole history of abuse (Hinchliffe, S. and Lloyd, D., no date).

Britain is not the only jurisdiction that is embracing the Battered Woman's Syndrome. Holly Maguigan tells us that the standards of the "reasonable battered woman" have been recognised by courts in Kansas, Wisconsin and Missouri (Stubbs, J., Graycar and Morgan, no date). Australia does not see Battered Woman's Syndrome as a defence in its own right, but as evidence which explains the woman's actions (Bartal, B.F, no date).

Because of this, Battered Women's Syndrome is used fairly frequently in the Australian court - Kontinnen and Runjajic ((1991) 53 ACrimR 362) was the first case where such evidence was used to support a defence of duress. Kontinnen((1992) 16 Crim.L.J. 360) and Hickey ((1992) 16 Crim.L.J. 271) have both used Battered Women's Syndrome as evidence to support a defence of self defence. The Queen v Falconer ((1990) 171 CLR 30) used it as evidence to support the defence of non-insane automatism. It has also been used successfully as evidence of provocation, the most profiled cases being the appeal of Chhay ((1994) 72 A.Crim.R. 1), when a retrial was ordered because the original trial did not take into account the presence of abuse; the trial of Raby (Unreported judgement of the Supreme Court of Victoria of 22.11.94), where the charge of murder was reduced to manslaughter due to provocation through sustained abuse; and Bradley (Unreported judgement of the Supreme Court of Victoria of 7.12.94 and 14.12.94), which had the same outcome as Raby. Although they were charged with manslaughter, the sentences were suspended, and so no time in prison was served by either woman (Bartal, B.F, no date).

There is an important case regarding the Battered Women's Syndrome in Canada, which has been cited in both Canada and Australia - the case of Lavall´┐Że (R v Lavall´┐Że, [1990] 1 SCR 852). The reason that it is so important is that it contains many different factors regarding the abused woman - it points out how gender-biased the law of self-defence is, puts into context the woman's use of lethal self help by admitting to a history of abuse, and outlines why a woman only has limited options in these circumstances. It also discusses the use of expert evidence and educating judges and jurors on the experiences of battered women. Despite all this, it has not been relied on per se, but factors within it have been pursued and used successfully. It has not had such a great impact as would be expected from such a landmark case (Stubbs, J., Graycar and Morgan, no date).

In these jurisdictions, cases regarding battered women are treated quite leniently in the courts - in Australia, some of the offenders did not even receive a prison sentence following the trial (Bartal, B.F., no date). This does not often happen in England and Wales. However, if the crime of passion were introduced, battered women would have more of an opportunity to be treated leniently, as they would be able to rely on the crime of passion to reduce their sentence - something which already occurs successfully in France (Ancel, 1958).

As has been seen, the problem of the battered woman is great. There are ways in which the abused woman can reduce her conviction or be acquitted, particularly by using evidence of the Battered Women's Syndrome. However, this cannot be used as a defence in itself, but only as evidence to support a defence. With the introduction of the crime of passion, the situation might change. As has already been mentioned earlier in this chapter, to integrate the crime of passion would probably necessitate the removal of the mandatory life sentence. This removal on its own would not change the situation for the battered woman, as has been shown by Australia, which does not have a mandatory life sentence, only a discretionary one (Bartal, B.F., no date). Due to the lack of mandatory life sentence, every homicide would have a discretionary life sentence applied. The crime of passion would therefore need to be used by the offender as a defence to reduce the sentence to something less than a life sentence. The situation which the battered woman faces could easily be said to fall under the auspices of a crime of passion. Instead of relying on the Battered Woman's Syndrome as an aid to a defence - which does not necessarily guarantee the desired result - the woman could claim her actions to be a crime of passion, and to help support her claim evidence of Battered Woman's Syndrome could be use, but it would not need to be the primary evidence. This would reduce her sentence accordingly and there would be no ambiguity involved.

There are other advantages in this situation. The first is that the woman would not be solely relying on the Battered Woman's Syndrome to reduce her sentence. It would still be useful as evidence - evidence of a mitigating circumstance could not be redundant - but it would not be the sole evidence. This means that it would be less likely that the mental capacity of the woman would be called into question in the courtroom, an issue which is often raised by feminists, as it can be seen to suggest that women in general are more mentally unstable than men (Bartal, B.F., no date).

Another advantage would be that the crime of passion defence could be used by the battered man. This is a less common phenomenon but it does exist (Brennan, P., no date). The battered man, however, does not have the Battered Woman's Syndrome to help him in a court situation. In fact, the battered man has very little support at all, even before the situation escalates to one involving a lethal assault. The battered man is ridiculed for being "less than a man" or not master of his house if he admits to being abused by his partner (Brennan, P., no date). This situation is therefore more likely to end with the use of lethal self help, because the man is not believed by any outside agency and cannot receive help from them. The crime of passion would give men in this situation a defence to rely on in court where their female counterparts already use Battered Women's Syndrome.

 

3.3 Social issues

So far in this chapter, the introduction of the crime of passion has only been seen through the legal perspective. It is also important to view it through a social perspective, looking at the advantages and disadvantages that such an introduction might have on society and the beliefs of our community.

As was mentioned earlier, there are many differences between men and women that are pertinent in the argument of the crime of passion. Men are physically more dominant than women, and this can manifest itself when a homicide is committed - the woman, not being as strong, has to revert to the use of a weapon, whilst the man could successfully subdue a woman without a weapon (Del Tosto, 1981). Whilst the equality of the sexes is promoted by today's society, the crime of passion might have the reverse effect. Due to the comparative physical weakness of women, it might be construed as being easier for men to commit a crime of passion. For example, if a man discovers that his partner is committing adultery against him, he would be physically capable of committing a crime of passion immediately. However, a woman in the same situation might not be able to do this, and thus have time to think rationally about the situation she is in. This might lead people to believe that the crime of passion is a defence for men and not women. They might also be led to believe that by using the crime of passion defence, a man could be acquitted of murdering their spouse, whatever the circumstances. It is possible that it could be used as an excuse for murdering a spouse with little provocation. At the moment men in this situation might use the defence of provocation, not always successfully, but claiming crime of passion might be more popular, and the jury might be more willing to convict them of this.

 

3.3.1 Acceptance of murder

The greatest reason for provocation to murder, it seems, is that of jealousy. As was discussed in Chapter 2, in many jurisdictions, the sight of a partner in flagrante delicto is seen as an excuse for murder, and is the stereotypical crime of passion. In England this can, depending on circumstances, be seen as provocation enough for murder - indeed, just the belief of such a thing, even if it is ill-founded can be enough to claim provocation sometimes (Mullen, 1993). Cumulative provocation is also accepted sometimes, whereby continuous jealousy finally comes to an end with the murder of one of the parties. However, Glanville Williams points out quite succinctly in his Textbook of Criminal Law, 1978 (as quoted in Mullen, 1993):

Killing upon provocation is very unusual. This is particularly true of killing in jealousy which is one of the best established instances of provocation. In 1976 adultery was alleged in 39,231 petitions for divorce (in England and Wales) and doubtless there were many spouses who discovered this conduct without taking divorce proceedings. We lack the figures for voluntary killings for adultery, but in comparison with the instances of adultery they must be insignificant. To say that the ordinary man or woman kills for adultery is a grotesque untruth.

Incorporating the crime of passion into our criminal justice system might be seen as an acceptance that the discovery of adultery is an acceptable reason for murder. It suggests to the public the possibility that if you discover your spouse is committing adultery, not only could you divorce them, but another option would be to kill them. However, the very fact that this is known by the public might imply premeditation, and the heat of passion could be left as an untrue excuse.

Brazil's experience was similar to this. The situation, in 1910 -1930 was out of control (as discussed in chapter 2) - a husband was not respected if he did not react with a "brutal gesture of uncommon violence" if his wife committed adultery. If this violence extended to killing her, he did not have to show remorse or grieve, as he was deemed a hero for upholding his conjugal honour like this. It was seen as his right to kill her, and so remorse was not necessary (Besse, 1989). This attitude created a country which condoned the killing of women in this way. It was seen as an excuse, and may well have been abused by some.

This is a danger that might present itself if the crime of passion were incorporated into our criminal justice system. If a person is allowed to use the defence of crime of passion because he killed his wife on the discovery of her adulterous behaviour, it could be seen to be condoning the behaviour. As Williams (see above) has highlighted, there are many divorces each year, most of which are acrimonious. At present, these divorces have not resulted in 39,231 murders. If the crime of passion became a defence, it could be used as an excuse, and the rate of killing due to adulterous relationships could rise. This is a possibility; however the problem could never be as large as it became in Brazil, as England and Wales do not have the same background of honour and duty as Brazil.

To embrace the crime of passion into the criminal justice system does not create a carte blanche for murder however, in the same way that the defence of provocation does not. The crime of passion would not condone violence - its inclusion would not imply an entitlement or justification. If the crime of passion were included as a defence, murder would be no less of a crime. It would however be acknowledged that there are times when a person can be pushed too far, and that a reasonable person would react in the same way in a similar situation. In such a situation self-control has a limit, which can be broken. The introduction of the crime of passion would not give an excuse for murder, but would imply that sometimes you cannot be responsible for your actions. In this way, the defence of crime of passion is very similar to that of the defence of provocation (Stubbs, J., Graycar and Morgan, no date).

 

3.3.2 Punishment

There is one other issue that needs to be discussed with regards to the introduction of the crime of passion - that of punishment. This introduction would affect the political stance of the prison system. There is a long-standing debate on the purpose of punishment, which must arise again at this point. There are several different possible purposes - rehabilitation, incapacitation, deterrence and retribution (Ashworth, 1997). The rehabilitation theory believes that sentencing should have an effect on the future criminal activities of an offender, that their character should be reformed. It focuses on the fact that punishment should be needs-based, and that committing crime is a type of illness that needs to be purged from the offender (Ashworth, 1997). As the crime of passion is a spur of the moment reaction however, it is unlikely that the crime will be committed again. The offender does not need to be reformed, as often they immediately regret their actions, and will not repeat it ever again. They do not need to change their ways.

Punishment as an incapacitating measure encounters the same problem. If an offender is punished with a prison sentence, according to this theory, it is to protect society from the offender's future criminal activity, to protect potential victims. However, if a crime of passion is an isolated incident and will not be repeated, society does not need protecting. They are in no danger - the offender was only a danger to his partner, who has already suffered (Huang, A., no date).

Deterrence justifies sentencing only in regards to its consequences (Ashworth, 1997): if a crime has been committed and an individual is punished with a prison sentence, the punishment acts as a deterrence for the individual. They will not offend again, because they know the consequences of their action. As well as this individual deterrence, there is also a general deterrence - the prison sentence the offender receives acts as an example to other potential offenders, who will then make the rational choice not to offend, to avoid the inevitable consequences. The penalty for the crime is set so as to outweigh the benefits of committing a crime.

If the crime of passion were introduced as a defence and were treated more leniently than other murders, this theory could be raised in argument against it. If the crime is being treated leniently, where is the incentive not to commit it? The offender could see it as relatively "getting away with murder". This situation can be compared to the abolition of the death penalty however. One of the arguments for reinstating capital punishment is that it deters the offender from committing murder in the first place, knowing that they will be punished with a death sentence (Lacey and Wells, 1998). In Canada, a study was done in 1985 by Stephen Layson, which found that every execution prevents up to 18 murders (Victimsofviolence, cp.htm, no date). In 1964 (the last year of the death penalty in Britain), 296 murders were committed. By 1980, this figure had risen to 620 (Lacey and Wells, 1998). These results suggest a deterrent effect on crime. The crime of passion is similar - the absence of a harsh sentence could encourage the offender to commit the crime. However, as the crime of passion is often a spur of the moment attack, a harsh sentence is not going to act as a deterrent, as they will not rationally consider the pros and cons of committing the offence before they do so. This issue is really only relevant if the offender engages in premeditation. In this situation they might consider the sentence before they commit the crime.

The final purpose of punishment is retribution. The retributive theory works on the biblical adage "an eye for an eye, a tooth for a tooth - that is, the offender has committed a crime and so should be punished proportionately for it. Ashworth describes the theory thus:

Punishment is justified as the morally appropriate response to crime: those who commit offences deserve punishment, and the amount of punishment should be proportionate to the degree of wrongdoing (Ashworth, 1997).

If the crime of passion were to be introduced, this retributive theory would be the main reason for punishing the offender. Just because the offence is a crime of passion does not mean that the offender should be exonerated. A crime has been committed, and a homicide has taken place (R v Marjorie Cole, Unreported judgement of the Supreme Court of Victoria, 9.6.78.), and so it should be punished. The mitigating circumstance of its status of crime of passion would be seen to reduce the degree of wrongdoing however, and so according to proportionality, the sentence would have to be reduced.

Government policy on sentencing changes frequently - in 1988, a Green Paper claimed that "imprisonment is not the most effective punishment for most crime" (Home Office, 1988), but in 1993, Michael Howard told the nation that prison works. As we have seen above, prison works depending on the reasons for punishment. With the introduction of the crime of passion, where most of these reasons are redundant, this political argument would again raise its head, with the predominant reasons for punishment having to be re-evaluated to incorporate the crime of passion.

 

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