Go to 4.1 Offence or defence?.
Go to 4.2 Incorporating the crime of passion.
Go to 4.3 Conclusion.
When establishing whether the concept of the crime of passion should be incorporated into the criminal justice system of England and Wales, it is important to decide whether it would serve the system better as an offence or a defence, an issue that was discussed briefly in Chapters 1 and 3.
4.1 Offence or defence?
As an offence, the crime of passion would have to be separated from the offence of murder, in the same way that manslaughter is. It would be a lesser offence than murder, but be on a par with manslaughter, and thus require a discretionary life sentence as punishment. This would mean that the sentence would be dependant on the mitigating circumstances, and vary accordingly. In the same way as manslaughter, the offence of "crime of passion" would need evidence of intent, to prove to the judge and the jury that it was not murder. However, this would cause a problem, as in many crimes of passion the intent is actually to kill the victim. This might be a spur of the moment intent with little premeditation, but nevertheless it is the intent at the time of the attack. When going to court, it would first have to be proved that the defendant had not committed murder, and then, having seen all the evidence, it could be reduced to crime of passion, in the same way as manslaughter is. The existence of a crime of passion could not be proved without this evidence, as otherwise the defendant would have to be charged with murder.
The situation would be different if the crime of passion were a defence. If this were the case, crime of passion could be claimed as a defence to murder in the same way that provocation is now. For this to take place, it would have to be proved that the reasonable man would react in the same way to the extenuating circumstances which led up to the homicide as the defendant did. Through claiming that it was a crime of passion, the defendant might have their charge reduced to manslaughter. This would mean that, due to the mitigating circumstances of the homicide, the sentence would not be a mandatory life sentence, but a discretionary life sentence, and so in fact, not necessarily as much as a life sentence.
Making the crime of passion a defence however might seem to dumb down murder, and make it more acceptable in certain situations, encouraging people to kill their spouses in times of trouble, instead of finding alternative solutions. The crime of passion as an offence would not do this, but it would still indicate that the crime of passion is something different to plain murder, and as it only constitutes a discretionary life sentence, is still a lesser crime than murder.
By looking at the two choices of offence or defence of crime of passion, I believe it would be most desirable for it to be introduced as a defence for murder. In this way, it would be more accessible to a larger group of people, including the battered spouse. If it were an offence in its own right, it might still segregate this group of people in the same way they are segregated at present.
4.2 Incorporating the crime of passion
At the moment, the situation of the crime of passion is covered by the defence of provocation (Dressler, 1982), where it is an integral part of the defence. If it were to be introduced in the manner stated above, the crime of passion would have a very similar constitution to the defence of provocation. The situation whereby the husband finds his wife in flagrante delicto with another man is the typical example of a crime of passion. However, at present it is covered by the defence of provocation. This defence does not cover every situation though, and as was shown in Chapter 3, provocation has several shortcomings where battered spouses are concerned (Hinchliffe, S. and Lloyd, D., no date).
As was explained in Chapter 1, provocation relies on a lack of premeditation (Allen, 1996), something which a defence of the crime of passion does not do. Many crimes of passion are premeditated, but as has been mentioned before, many are not. Those that are premeditated cannot rely on provocation.
Premeditated self-defence, according to the definition of self-defence, cannot exist (Allen, 1996). However, as was explained when talking about the battered spouse in Chapter 3, the battered spouse may have armed themselves prior to the event, in the certain knowledge that an attack is going to take place. They are defending themselves, but, as they have armed themselves beforehand, premeditation obviously exists. In such a situation, the defendant would not be able to claim self-defence. However, if the defence existed, they would be able to claim crime of passion. This defence does not necessarily rely on lack on premeditation. Crimes of passion (Chapter 1) are described as "typically impulsive killings which are inspired by overwhelming emotion such as jealousy" (Weir, 1992) especially in a familial situation, but this definition is not exclusive and can cover many situations.
Diminished responsibility is also blurred into the definition of crime of passion. The crime of passion implies that the defendant is so overwhelmed by their emotion that they cannot control their actions. If this is the case, it would have to be proved that the defendant was not not mentally ill at the time of the attack if they wanted to claim crime of passion.
Having closely studied the experiences of France regarding the crime of passion, the advantages and disadvantages of its inclusion have been seen. The social journey through which it has travelled to reach the situation that France now has, where the crime of passion is treated with leniency, has been shown. Following this in-depth study, other jurisdictions such as North and South America have been examined to see how the crime of passion is incorporated into their legislation and societal experience. Through doing this, any problems that they encountered with its inclusion have been highlighted, as well as advantages within the system. Various ways of looking at the phenomenon have also been analysed, so that it could be determined what different members of the community might believe from its inclusion.
Following this, the various problems and advantages of including the crime of passion into the criminal justice system of England and Wales have been explored. There are several avenues that needed to be discussed, but the three most crucial aspects are the effect that its inclusion would have on the lot of the battered spouse, the effect it would have on the concept of the mandatory life sentence, and the theory of whether prison is effective.
Where the battered spouse is concerned, it has been shown (Chapter Three) that at present, although the battered spouse enjoys some leniency and understanding in the criminal justice system, this could be increased (Stubbs, J., Graycar and Morgan). Although the battered spouse can, by relying on expert evidence of Battered Women's Syndrome, be given leniency in their sentence using both provocation and self-defence as a defence, there are some situations which would not fall under either defence. These situations, with the help of expert evidence on Battered Women's Syndrome, could however be included under a new defence of crime of passion. This would aid the battered spouse immensely, as it would give them a reduced sentence, and the public might understand the phenomenon better.
The most important effect the crime of passion would have on this society however, in my opinion, would be to the mandatory life sentence. As was discussed in Chapter Three, murder is the only crime in England and Wales that is not dealt with on an individual basis, but is given a mandatory life sentence, despite the individual circumstances (Lord Bingham, 1998). Because of this, all murders are treated equally, with the sadistic child killer being charged with the same crime as the defendant who kills their partner after years of abuse (Young, H, no date) This is also the reason why the defences which are allowed for murder reduce the crime to one of manslaughter. However, if the defence is to reduce the murder to manslaughter, it must be proven that there was no intent to kill, and therefore no premeditation (Allen, 1996). As in some crimes of passion this intention is present, a crime of passion is still classed as a murder.
This would suggest that not every murder is the same, and therefore should not be treated as such. This fact undermines the concept of the mandatory life sentence, and so if the crime of passion were accepted into legislation, the mandatory life sentence would have to be abolished, and a discretionary life sentence put in its place.
The crime of passion deserves an important position in the legal system of England and Wales as it is a unique crime. Although at present it is dealt with under the broad term of murder, it is different from many other murders due to the motive behind it. As has just been implied, it does not seem fair that the crime of passion should be included under the same banner as sex crimes, with the same mandatory life sentence as them. In Chapter 2, it was mentioned that the crime of passion had been seen in France (Ancel, 1958) and Brazil (Besse, 1989) as a noble crime, and the impassioned criminal worthy of pity. This is no longer the case, but perhaps it could be said that the crime of passion might still be seen as a higher class of murder than other types. It is a spur of the moment offence, or one with great emotion behind it, which many people can relate to. The fact that people can relate to the motive is perhaps what makes it a murder in a class of its own - if the ordinary man could commit such an offence, it should not be classed with the crimes of monsters. This uniqueness is what makes the crime of passion important and worthy of a separate defence.
This situation can be compared with that of "date rape" - acquaintance rape, in relation to the offence of rape. The Home Office Consultation Paper "Setting the Boundaries: Reforming the Law on Sex Offences" (2000) studies this issue. One issue this paper discusses is whether "date rape" should be classed as a separate entity within the law, independent of the offence of rape. This is similar to the discussion here, which regards crimes of passion as a separate entity, independent of murder. Some people that the review (Home Office, 2000) spoke to suggested that if the law was changed regarding the status of acquaintance rape to create a lesser sentence, the jury might be encouraged to convict offenders more willingly - an issue which has also been raised regarding crimes of passion (Chapter 3).
The review (Home Office, 2000) came to the conclusion that acquaintance rape should not be created as a separate offence to the existing offence of rape. Acquaintance rape can be just as serious as stranger rape, as there is also a betrayal of trust involved, which can be hard to recover from. After the offence has been committed, there is still an impact on the victim, whatever their relationship. In the same way, with the crime of passion, at the end of the offence the victim has still been killed. Despite this, the review states that the sentence should reflect the seriousness of the offence - a policy that can also be carried over to the crime of passion. If circumstances dictate that the crime should be treated more leniently, then the mechanisms should be available that allow this. The review concludes this section by saying that:
"Gradation of the seriousness of a particular offence is best reflected in the sentence finally imposed rather than creating separate offences."
I would concur with this conclusion, by suggesting that this should also be the case with regards to the crime of passion.
Having studied the crime of passion, it has become apparent that the advantages of its incorporation are not great. There is of course the advantage that more people would be able to claim the crime of passion, whereas otherwise they would have no defence. This is especially true with regards to the battered spouse, who otherwise would have to claim prosecution or self-defence, and not be sure that they would succeed in their case. They would be able to claim crime of passion with ease, and justice would be meted out to them more frequently than at present. However, this could also be seen as a disadvantage - if they have no defence, crime of passion could be seen as a final option whereby they will be given a lesser sentence. This could lead to many miscarriages of justice, as people claim crime of passion where actually no such motivation exists.
The other advantage to the inclusion of the crime of passion is the fact that it would be necessary for the mandatory life sentence to be abolished. As has already been discussed in Chapter 3 and earlier in this chapter, there are many benefits to this. However, this abolition does not need the introduction of the crime of passion into the system - it could be abolished independently.
It seems that, having examined the arguments for and against including the crime of passion as a defence, the disadvantages outweigh the advantages. For this reason, I believe that the best option for society would be not to incorporate it into current legislation, especially as it might condone murder in the eyes of the public.
Instead of this, I would suggest that abolishing the mandatory life sentence would have the same effect as including the crime of passion. Instead of being an integral part of incorporating the crime of passion, it should be considered as a reform in its own right. The mandatory life sentence is an issue that has already had much debate (Lord Bingham, 1998), with many people feeling strongly about its reform. It is therefore more likely that this reform will take place as opposed to the crime of passion. Whilst incorporating the crime of passion would only solve the issue of what to do with crimes of passion, reforming the mandatory life sentence would solve several problems - the individualisation of crime, and the sentencer of the murder being a judge and not the Home Secretary (Lord Bingham, 1998). The crime of passion would therefore be treated leniently as a side effect of the individualisation of murder.
To replace the mandatory life sentence, a discretionary life sentence could be introduced. This reform would not necessarily change the way manslaughter is viewed - in Australia, for example, there is no mandatory life sentence, but still a separate murder offence with excusable and justifiable defences such as self-defence and provocation (Bartal, B.F., no date). By making this reform, a murder would be treated according to the individual circumstances involved, and not as a general offence. This would make sure that the crime of passion is still seen as a murder, but at the same time, if the circumstances permit, it could be treated in the lenient manner that it deserves.
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