When can killing a sexual partner or a former sexual partner qualify as mere "voluntary manslaughter" rather than murder under American law? Some of the comments to my honor killing post led me to want to elaborate further on this.
1. Most states — though not the several states that have adopted the Model Penal Code "extreme mental or emotional disturbance" formulation — specify that this sort of killing is voluntary manslaughter only if it's in the "heat of passion." But while some states limit this to situations where the killer has just immediately caught the victim (either the killer's sexual partner or the person with whom the partner is cheating) in the act, other states take (or recently have taken) a different view.
No need to witness adulterous act: Thus, for instance, Commonwealth v. Schnopps, 417 N.E.2d 1213 (Mass. 1981), holds that a spouse's killing of a spouse can be voluntary manslaughter when it immediately follows the victim's oral admission of adultery. Anderson v. State, 507 So. 2d 580 (Ala. Ct. Crim. App. 1987), overruled by Knight v. State, 907 So. 2d 470 (Ala. Ct. Crim. App. 2005), held that a spouse's killing of a spouse can be voluntary manslaughter when the killer "visualized [the wife] standing nude at the foot of [another man]'s bed" — based on the wife's refusing to accompany him home after a family visit to the other man's mobile home — and then went home, got his shotgun, drove to a store to buy shotgun shells, and later went back to the other man's home and shot the wife and the other man.
Time delay between confession of adultery and killing: Likewise, People v. Berry, 556 P. 2d 777 (Cal. 1975), concluded that a delay of 20 hours between the confession of adultery (and a desire to leave the marriage) and the killing didn't preclude a finding of manslaughter, at least when the victim had engaged in "a long course of provocatory conduct."
2. As best I can tell, most states don't limit the defense to adultery, but also allow it when the killer and the victim aren't married. Goforth v. State, 523 S.E.2d (Ga. 1999). This may be sensible, but I mention it to rebut the suggestion that the breaking of a marriage vow is somehow uniquely serious and thus specially justifies the doctrine.
3. Most troubling of all, there are quite a few cases in which a voluntary manslaughter theory was found legally warranted simply because a sexual partner had left the relationship, without any evidence of cheating. See, e.g., State v. Little, 462 A.2d 117 (N.H. 1983); People v. Guevara, 521 N.Y.S.2d 292 (App. Div. 1987). Fortunately, many states would not allow the theory in such cases, but some do.
4. Some commenters suggested that honor killings are especially culpable because they are "celebrated" by the community, in a way that manslaughters aren't. That would be reason to condemn the community that celebrates such killings; but I saw no evidence of such celebration in the Georgia story I cited to. And while I don't know of a tradition of celebrating a man's killing his unfaithful wife or girlfriend, my sense is that there are unfortunately some subcultures in the U.S. where such a killing would be at least to some extent condoned, even though not celebrated.
5. To my knowledge, the voluntary manslaughter theory has not been applied in the U.S. to parents killing their children because of their children's misconduct, though as I mentioned the "extreme mental or emotional distress" formulation of voluntary manslaughter might apply even to such situations. But the premise of the doctrine as to spouses killing their cheating spouses (usually the husband cheating the wife) is that the spouse has fallen victim to the heat of passion. It's factually quite possible that some fathers can fall into such a passion when they hear of a daughter's misconduct that they see as staining their family honor.
This having been said, I'm very happy that in our culture this sort of pathology (killing someone, spouse or otherwise, because of the person's infidelity, including, I suspect, because the infidelity is seen as a stain on one's honor) is limited to sexual partners, chiefly husbands and boyfriends. I'm glad that it doesn't extend to the unfaithful person's father, and I'd like to keep it that way.
Nonetheless, I'm not sure that there's some vast gulf between a jealous passion — again, a jealous passion that might be based in part on a man's sense that the wife has dishonored him (by "cheating") — and a father's passion stemming from his sense of family honor. It would make sense for our law to limit the scope of the manslaughter theory to cover the traditionally recognized jealousy (and perhaps to cover only a narrow subset of such cases), and to exclude the father's reaction. But I don't think we can see the outraged father's actions as uniquely barbaric, while the outraged husband's actions are unfortunate and criminal but radically different. Both, unfortunately, reflect a longstanding tradition of vast and heinous overreaction to perceived sexual impropriety, especially by women, a tradition that is present in some ways in our country as well as in Muslim countries.
Related Posts (on one page):
- Killing of Sexual Partners as Mere Manslaughter:
- "Honor" Killings, Muslim and Otherwise:
There's something strange to me about this, when its justification is simply that our cultural "tradition" views, rationally or not, jealousy as a more justifiable motivation than dishonor. If cultural tradition can justify treating the two cases quite differently (sentencing for murder v. manslaughter is very different) then how can we be so mad about honor killings?
As a random question: do any states explicitly allow for mitigation to manslaughter when a cuckolded spouse (is there a better term?) finds him- or herself infected with an STD?
Back to the Muslim/Western tradition. A few comments about the Bible and adultery:
Leviticus 20:10 states, "If there is a man who commits adultery with another man's wife, one who commits adultery with his friend's wife, the adulterer and the adulteress shall surely be put to death."
Ek. 16:35-52 follows the same pattern, although it specifies stoning for a harlot.
(There may be a few other passages as well; the NT ones seem to indicate that adulterers will be judged harshly by God, but do not dictate a legal punishment.)
Certainly, then, there is a non-Muslim tradition of murdering those who commit adultery
But the grand jury declines to indict the husband and instead indicts the wife. Here's the thing: as she was jumping out of the lover's car, fearing that her husband was going to kill her, the wife cried "rape." Although there was every indication that the husband believed the situation to be adultery, wife is found guilty of second-degree manslaughter and sentenced to 5 years.
http://www.nbc5i.com/news/16140718/detail.html
Oh, and the wife is now out on bond and still together with her husband.
Because the American tradition is such that premeditated murder is worse than honor killing, which is worse than killing in a fit of rage, which is worse than killing someone who broke a sacred vow to you in a fit of rage.
I don't make the rules, but everyone has an ingrained sense of hierarchy of the comparative severity of crimes, sometimes highly varied between individuals, and sometimes almost universal. For example, most everyone finds murdering an innocent child more vile than murdering an innocent bum.
"The father of a Mississauga teen killed last year has been charged today with first-degree murder in connection with her death."
...
"The death drew international attention after her friends said she had argued with her father over her desire to shun the hijab, a traditional Muslim scarf that covers the head and shoulders." Bob Mitchell in the Toronto Star, June 17
I've never heard of an "honor" killing of a male, much less the "honor" killing of a male by a female (or female family members), much less justification of such a killing or efforts to protect or hide the killer.
There is, of course, another distinction. Heat of passion voluntary manslaughter is still voluntary manslaughter. An "honor" killing is not only viewed as justified, it is required.
One has the chorus
"I'm gonna burn down the house and leave by the light of the fire"
Though, I guess it's not the same cause the killing/revenge has not happened yet, and the singer is not in jail.
This is not true. Not for me. And not for a lot of other people.
I think I would find murdering an innocent child worse than murdering an innocent adult. (Because a child has been robbed of practically all life experience.) But the fact that the person is homeless is simply not relevant in anyway to me.
I take that to mean you reject all "heat of passion" and "provocation" laws that indicate voluntary manslaughter.
I think it's reasonable to find people less culpable for committing a crime while enraged (though perhaps not so much as to reduce a 20 year sentence to 5), and to me that's the major difference between honor killing and partner killing for adultery. If a parent caught their child in an act of dishonor and flew in to a rage killing them, I would consider a voluntary manslaughter charge just as I would for a spouse, but that's seldom the case for the honor killings that make the news.
It's no surprise that Eugene can find a number of really bad precedents, but I don't really see why they should make us condemn honor killings any less or heat of passion killings any more, although perhaps that wasn't the point.
Women may be less effective, but its not fo lack of trying....and this makes me suspect that suggestions that men act so as echos of distant property sensibilites are just confused.
I meant an adult bum, but I see now that you could interpret them both to be children if you really wanted to be silly. It doesn't matter if you think it's worse because it's an adult, a poor person, or both, the point still holds.
Now that I can agree with: none of the Muslim deprivations are unique, but neither does that make them any less depraved.
Or, perhaps, this 2008 case from India, involving Hindus. Here, the male was not killed only because villagers got there in time to save him.
I recall a case, front-paged in all the Indian newspaper in either late September or early October, 2001, in which two sets of parents together killed their son and daughter (by hanging) because they 'dishonored' both families by getting married against the parents' wishes.
so MD has it right!
Conversely, neither husband nor wife is generally obliged to support a bastard conceived through the husband's sexual infidelity. The reason presumably being the difficulty, vide supra, of establishing paternity beyond cavil.
We may find these reasons hardly substantial today, but that's because children and blood lineages are not nearly as important as they once were. Consider that bitter wars have been fought over which child has the legitimate right to sit on his father's throne, and lesser but equally bloody conflicts have revolved around which child has the legitimate right to inherit the father's estate, castle, or plot of 40 acres and a mule. (Equal division of property among all children has, historically speaking, not been especially successful, since it rapidly subdivides land below its utility as a farm.)
Behaviour -- chiefly by the wife -- which threatens to wholly upend the social contracts that enforce a peaceable and orderly inheritance of property that may have taken generations to accumulate was, not unreasonably, strongly resented.
The fact that similar behaviour from the husband is not resented has zip to do with bogus modern feminist-theory arguments about women having lesser social status, and everything to do with the simple and obvious fact that paternity is, even today, an act of educated guesswork, while maternity is without shade of doubt under almost any ordinary circumstance.
I heard he received a 20 day suspension for this.
Which sounds about right.
Is murdering a 20 year old worse than murdering a 40 year old?
1. The defense against murder is regarded as an acquiesence to a weakness rather than a vindication of an ideal. The defense is basically that people shouldn't be punished as severely because some situations cause people not to think straight, not because people are perceived as doing the right thing.
2. Anger,, social acceptance of expressions of anger, and the legal remedies designed to substitute for personal vengeance, are for the most part directed at the other party rather than the family member.
3. Both the defenses for violence and the "heart balm torts" are not only formally gender neutral, but they are regularly used by both sexes. The notable recent "heart balm" cases have almost overwhelmingly involved women suing their husband's lovers. Thus, condemnation of adultery etc. isn't a male-owns-the-woman thing either in theory or practice.
4. The law in some jurisdictions still excuses some acts of violence, but there is a complete defense only to acts substantially less than murder (simple assault, not assault with a deadly weapon and not assault causing serious injury).
Learning about this "voluntary manslaughter" stands out as one of the most surprising revelations during my first year law school experience. Reading about several cases that just went a bit farther beyond the stories I had just heard in my work was striking.
Whether we call it "honor killing" or "voluntary manslaughter" both are essentially a man killing a woman he believes he has control over (and its only been quite recently that women in Anglo-American law weren't seen as passing from the control of their father to the control of their husband). If you are an American woman and you are murdered, chances are you'll be murdered by an intimate partner.
Throwing the whole religion factor needlessly distracts from recognizing murder as murder. (And being thankful that there has been tremendous legal recognition in the past few decades of the fact that domestic violence is, in fact, a crime). Whether isolationist, feminist, internationalist, conservative, liberal, libertarian, etc., increasing the social stigma on citizens killing other citizens is one of the few things we should all be able to agree on.
After the 1948 Arab-Israeli War, one Arab leader commented bitterly on the quality of weapons supplied to some of the Arab troops. He noted that one such shipment consisted of "pistols used by women to kill their lovers". (Presumably some well-known Middle Eastern "Saturday Night Special".)
A "humorous" reference appears in Arthur C. Clarke's 1954 SF short story "Patent Pending" (one of his SF tall "Tales from the White Hart"). A Frenchman invents a multi-sensory recorder/player. He records the experiences of a virile young man with a talented fille de joie, takes to replaying that recording a lot, and is shot by his neglected petite amie "with one of those ridiculous ornamental pistols which are de rigeur for such occasions."
Note in the last two cases, the presumption that such killings represent a large and well-known class.
Source
Had there not been multiple confessions, fleeing the country, multiple stabwounds with a serated fighting knife, indicating intent to kill not maim, and the victim actually dying, then a lesser charge may have been brought. Had the victim assented to any sexual activity, and not rejected the advances, then it's unlikely that any charges would have been filed.
On the other hand in several comments to the post there seems to be a lack of differentiation between "Muslim" culture and "Islamic law"; they certainly do not equate. Muslim cultures are diverse and are certainly not informed only by Islamic theology and law, but by their ethnic and regional cultures as well and the proximity of those to the rule of law and its application. I've found that in many cases of Honor Killings, there is an element of lawlessness in the society due to tribal influences, etc. that is not found in many other Muslim societies. With Muslim societies spanning from Morrocco to China, it seems a bit premature to condemn them all while (from what I have seen) most cases that have arisen in the American context are limited to people of Palestinian and Pakistani origin; hardly indicative of the entire "Muslim" world.
To compare Islamic to American law here would seem to be the more logical parallel.
Here we're dealing with two issues:
1- Parents killing a child.
2- Spouses killing one another.
Classical Muslim jurists held two opinions on a parent’s murder of his/her child. Many held that while the parent would not receive the default punishment of execution, they still would be liable for other forms of punishment such as jail time, etc.
Another group of jurists held that a distinction should be made based on mens rea. Those parents that murdered with malice aforethought would be executed like any other murder. If there is evidence that the parent did not possess mens rea, then the parent may not be charged with murder, but may still be liable for a lesser charge that do not necessitate execution. They hypothesized on a parent that was reprimanding their child physically but then was carried away through anger or some other factor to mistakenly kill the child. No difference was made in classical books as to the genders involved.
As for spouses killing each other for infidelity, then no difference was made as to mens rea. Murder in this case was murder, even if (as stated in the books) a man were to find his wife in bed with another man. Any murder committed would be charged as such.
The whole point here is that the act in and of itself was never tolerated by Muslim jurists as a question of law, even though (and sadly enough) tolerance of such has crept into some (certainly not all nor most) Muslim cultures.
Why is it tolerated in Muslim cultures? Ask a social scientist. As a question of law however it has always remained constant.
We can, because the relationship between the outragous acts and the killer are quite different. The outraged father is at best a third party beneficiary to the contract breached by the daughter's misconduct in the case of infidelity. The wronged husband/partner is party to the breached agreement of fidelity.
Lee Harvey Oswald doesn't get manslaughter just because his passions are inflamed by Kennedy's conduct as president - it's only if JFK was seeing Oswald's girl.
They point out nothing of the sort. A vast array of substansial differences between the two different types of killings has been produced by several commenters, and for
the most part they have been ignored.
The two just aren't comprable except in the most superficial fashion.
DNA and other medical tests or even a knowledge of certain visible dominant and recessive characteristics can remove all ambiguity but that is not the environment that people evolved in.
My question to the VC: how do sentences for cheated wives who kill compare with sentences for cheated husbands who kill?
But look below the surface and they are totally different.
In the West Killing your wife caught in the act is understood because of the anger caused by her dishonoring you. Because you have lost your Honor it is understandable that you are angry and this may lead you to "in the heat of passion" to kill. BUT it doesn't regain your Honor. You have still lost it. There are a very limited number of conditions that might cause you to get angry enough to kill. There are almost NONE that REQUIRE you to kill. The Killing also DOES NOT REGAIN YOUR HONOR.
The Honor Killings (Muslim or tribal) are totally different. They are done to REGAIN THE FAMILY HONOR. There is no limit on what might cause a Honor Killing. The whole purpose of the Honor Killing is to ENFORCE community standards. And the Killings are REQUIRED to regain the family honor.
These two concepts of Honor are totally different. The Western idea used to alow anger caused by loss of Honor to mitagate the punishment. It was also mainly individual. Family Honor was also important but the Brother of the Husband had no mitagation if he killed his Brothers wife because she had commited adultry. The Muslim / Tribal idea requires killing to restore Family Honor. Anyone in the Family can kill the offender and the killing is excused.
Please moral equalivalence between the two concepts of Honor doesn't exist.
Western Honor doesn't REQUIRE Killing family members.
Muslim / Tribal Honor REQUIRES KILLING family members.
If you think that these are equalivalent your moral compass is broken.
You should point out the limited scope of what constitutes adultery under strict jewish law. Having relations with a married woman. A married man and unmmarried woman is not adultery. It is having another man's wife.
As have a vast array of other instances not committed by Muslims (Christians, Sikhs, Hindus, etc.)been presented in the comments. Are those being ignored as well?
@XXX:
That is a big claim, can you provide statutes from Muslim countries to this effect? As far as I know many "Muslim" countries use imported codified systems taken from french and swiss sources, and hardly claim to rule by Islamic law. Strangely enough those systems have the highest instances of honor killings in the Middle East, much higher than those that claim to be purely Islamic.
Who can forget the Princes beheaded on Saudi Television. A very public Honor Killing.
Many other instances. It is POSSIBLE that it is against the law but they wouldn't think of enforcing it against Honor Killings.
But if you go through some of the past posts arguments for this position and you scratch out their examples of proctectable property and put this one in in crayon, everything works. Those property interests were considered important in every state through most of American history. So is this one. The interest involved was historically concerned special and sacred. Same here. Efforts to changed the balance were recent. Same here. They were orchestrated by them dam' liberals who thought the use of violence to protect property is unjustified and that property isn't as sacred as some fuddy-duddies think it is. Same here. There are reems of precedents that the use of force was universally accepted. Same here. It was deeply rooted in this nation's history and tradition. Same here.\
In short, if the Second Amendment permits judges to strike down laws that permit the use of force to protect property, why should the fact that Professor Volokh and other members of the Conspiracy happen to be partial to these particular of laws and think them a good idea prevent them from being struck down as well? Here we have the use of violence to protect against intruders seeking to take away ones own. What could possibly be better deserving of Second Amendment protection than that?
Conspiracy members might argue that while they're fine with protection of property rights, they don't think this ought to be a property right, so legislation making it less of one could only have been a good thing. Fine, but any attempt to constitutionalize that sentiment takes away from any concept of originalism. We'd be admitting that the second amendment doesn't protect the use of force in those situations when it was considered justified in 1790 or even 1950, it only protects the use of force in those situations where we think it should. And it just plain doesn't matter how many old court decisions can be brought to bear to support that use was force was frequently resorted to and widely accepted; those things would just be fluff, traditional flourishes to provide a little atmesphere and gravitas when announcing the decisions we were going to make anyway.
In short, all that introducing a second amendment right of defense of property has done has been to shift the fundamentally political decision of determining when society's laws should be updated to reflect society's contemporary ethics, mores, and needs from the discretion of legislatures to the raw discretion of judges. This is as deeply traditional a right as any can be. If the second amendment, protects traditional rights to use force and the definition of what is a traditional right is interpreted in a genuinely fair and neutral way, it ought to protect this one. I don't think it does or should, and this is one of the reasons why.
That pretty clearly limits death to adulterous couples where the man is friends with the woman's husband, unless Clayton Cramer can find "originalist proof" that the second clause means something other than it's plain language.
The King James Version has "neighbour" instead of "friend."
The New International Version states:
I seem to recall (but don't feel like finding it now) that it was a capital offence to not be a virgin upon one's wedding night. (Rape of a virgin was a crime punishable by marriage, IIRC; the rationale is that a woman, during that time, would not ever be able to find a husband afterwards, so this ensured that she would be supported throughout her life.) So you couldn't do it with married women, you couldn't do it with women who had never been married, and there may have been prohibitions involving doing it with widows (unless, of course, they were the widows of your brother, and then that's a totally different story).