The Sunday Mail
He had no intention to kill.
His history showed that this was a special case since he dearly loved her. lt was entirely different from the ordinary cases of crimes of passion.
He called upon God in the most dramatic fashion, and called upon the witnesses present to testify how much he adored her.
His narration lasted for over an hour. During that hour, the whole court room was spellbound by this case of complex psychology.
He claimed that he had loved and loved so much that he killed her.
The law recognises the frailty of human nature by mitigating murder to a lesser conviction when committed in the heat of passion or under extreme emotional disturbance.
Humans kill in such circumstances because they love. It is an age-old story familiar to the human race, colourfully deemed a “crime of passion”.
This emotional response to seduction and abandonment is a predictable part of human nature which leaves the courts, society and even the accused at a loss.
Does the man, woman or lover who has been deceived have the right to kill the partner who has proved unfaithful?
A crime of passion can be defined as an accused’s excuse for committing a crime due to sudden anger or heartbreak in order to eliminate the element of premeditation.
This usually arises in murder or attempted murder cases, where a spouse finds his or her beloved in a compromising position with another and reacts violently.
To make this claim, the accused must have acted immediately upon the rise of passion, without the time for contemplation or allowing for “a cooling of the blood”.
The benefit of eliminating premeditation is to lessen the provable murder with actual intent to a lesser charge at least with no death penalty and limited prison terms.
In some countries where the jury system is still used, an emotionally charged jury may even acquit the accused person.
The law takes what would otherwise be murder and reduces the crime to a lesser one.
However, this is not done always, thereby indicating society’s belief that this dynamic part of humanity cannot be as morally to blame.
While there were and there still are a limited number of ways to be legally provoked under the traditional common law, the classic provocation has often been thought to be the sudden, in-person discovery of one’s romantic partner engaging in sexual activity with someone else.
While many legal systems such as that of America have moved away from the rigidity of such a clear-cut approach, sexual infidelity remains a model approach to such killings’ vindication.
In reality, though, sexual misconduct is not the only kind of immorality that can cause intense passions.
It all depends with one’s upbringing, their religious and cultural beliefs considering the fact that some perceive handshaking between people of the opposite sex as indecent whilst a kiss to some does not even cause any commotion.
What might encompass circumstances of crimes of passion is that the accused person must have been in the heat of passion when he or she committed the crime. lt can also happen when a reasonable person is in the heat of passion and has not cooled down.
The reader should note that the test in this instance is not that the passion caused the individual to commit the crime, no. The ordinary person does not just kill. Rather, the ordinary person’s sensibilities are so affected by “passion” or lust so much that culpable homicide which is lesser than murder becomes a potential solution.
Those who have been wronged at some point in time believe that killing the seducer is no crime. In fact, the accused would have delivered “divine retribution” against an evil man or woman who would have seduced their loved ones. Thus, since the accused was morally justified, there is no murder case against them.
One major criticism on this line of thinking is that it perpetuates harmful gender stereotypes. The notion here is that crimes of passion privileges a type of killing committed most frequently by men, a husband killing his spouse over sexual misconduct.
This is not to say that women do not kill under similar circumstances. However, it reinforces gender stereotypes of male aggression and subordinates women by allowing this kind of crime to be recognised in the law as less heinous.
Interestingly, some people believe that passionate killing that results from infidelity should no longer be afforded mitigation as society no longer punishes adultery.
This exposes a fundamental problem in countries like South Africa where adultery laws are no longer stringent. But still, it moves the doctrine too far from its original purpose of objectively which is recognising the weakness of human nature and, instead, allows mitigation to be determined by a common compromise of society.
To take the fragility of human nature seriously, I personally believe that the law must look at the principles of human nature rather than current societal beliefs.
The question that arises is whether laws should limit judicial decisions to reduce sentences where necessary, reduce the charge or acquit the accused in such killings.
Obviously, the courts cannot turn a blind eye on factors such as the level of perceived provocation to the accused, the deceased victim’s past behaviour, including the sexual behaviour that supposedly sparked the “fit of fury”, the victim’s morality that motivated the accused to commit the killing and whether the accused saw the act happening right there in front of his or her own eyes.
I once heard a presiding officer during trial saying that he could not understand how people could kill their loved ones.
But here was an individual who did not kill because he wanted to, he did not wish to kill. While this cannot in any way justify the accused’s fatal assault on the deceased, it certainly provides a motive for the assault.
This was a crime of passion and not a motiveless assault. The death was simply by accident.
The atmosphere associated with such scenarios is bewildering since such would be an excellent case for the court to operate upon.
The presiding officer would be tender in his or her questioning and the prosecutor would be half-hearted in his prosecution though ideally not always. Then comes the summing-up by the accused’s lawyer which would be a masterpiece of narration and description.
It would be constantly punctuated by the applause of the audience. Sometimes the presiding officer of the court tells the audience to keep quiet, sometimes he allows the applause to pass without comment.
It would be a clear case for mercy.
When the lawyer concludes the crowd would be applauding and shouting. This can only explain the fact that crimes of passion attract their fair share of sympathy where the offender is viewed as the one who was offended.
But at the end of the day, the law should be allowed to take its course.
There is a general belief that men get more jealousy and protective of their lovers than women. Since a man cannot tell if his wife has cheated on him and has been impregnated by another man, he adapts ways of monitoring his mate and ensuring sexual fidelity.
Yet no woman ever gave birth and wondered if the child was really hers as the child emerged from her womb.
Thus, most women are not extremely jealousy like their male counterparts when it comes to sexual infidelity.
Nonetheless, this is no justification for taking someone’s life ruthlessly. One cannot take the law into their own hands, there are authorities that are responsible for that.
In the same vein, no matter how offended one can be, one should not kill and hope that the courts will understand how you felt.
This demands true reflection on how one should manage their anger because drastic action taken in response to such love issues could be your worst undoing.
Some might even take advantage of the situation and kill their loved ones all in the name of love, when in actual fact they no longer loved them. This can be done in cases where they already knew of the affair with the intention of avoiding the struggles that come with divorce and property sharing, just to mention but a few.
As always, humans are complex beings.
All the same, our courts treat the gift of life seriously and the Supreme Court underlined that in the case of State v Mutshimikwa 1985 (2) ZLR 238 (S) where the court pointed out that murder is always a wicked deed. The courts have also noted with a lot of disquiet that murders being perpetrated in domestic set-ups are on the increase with spouses killing each other without much ado.
It is in that respect that courts have always accorded what they deem stiff and deterrent sentences. But it appears that the desired effect is not being achieved.
However, the courts should not shrink from their sworn obligation of imposing what they deem just and deterrent sentences since the deceased deserves justice also whether he or she had crossed the path of the other’s territory or not. But with the cases of infidelity on the rise, it seems crimes of passion will continue to be a constant feature.
Coddy Fungai Nyamundanda is a legal practitioner who writes in his personal capacity. For feedback: [email protected]