D. Barret Broussard, Principles for Passion Killing: an Evolutionary Solution to Manslaughter Mitigation

• Publication year: 2012

PRINCIPLES FOR PASSION KILLING: AN EVOLUTIONARY SOLUTION TO MANSLAUGHTER MITIGATION†

ABSTRACT

The law recognizes the frailty of human nature by mitigating murder to manslaughter when committed in the heat of passion or under extreme emotional disturbance. Evolutionary analysis entails the scientific study of the principles of human nature. Yet, the law’s understanding of human nature is not congruent with evolutionary analysis. To be legally provoked under common law for manslaughter mitigation, a homicide must be in response to one of four kinds of provocation: adultery, mutual combat, false arrest, and violent assault. And under adultery, only sexual infidelity counts. Sexual infidelity is not the only type of infidelity that can push a person into a homicidal rage, and while American jurisdictions have started moving away from the rigid categories, sexual infidelity remains a paradigmatic approach for mitigation. The Model Penal Code attempted to make the law more contextual, but it created a new series of adjudications that are expansive and also incongruent with evolutionary analysis.

This Comment addresses the incongruence of both the common law and the Model Penal Code—which produce gender disparity in manslaughter doctrine—with evolutionary analysis. By exploring why sexual infidelity would provoke passion sufficient for homicidal rage, the Comment develops a mitigating standard for adultery that is consistent with evolutionary analysis and notions of gender equality. It uses evolutionary analysis to determine which universally recognizable forms of jealousy and related passion-laden mental states should also be sufficient provocation to deserve that same mitigation.

The passionate response to sexual infidelity is just one adaptive solution to a threat against a male’s reproductive fitness. However, in flagrante delicto does not take the passion-invoking circumstances of the female end of the same evolutionary spectrum into account. Our ancestral mothers faced a different set of evolutionary challenges against their reproductive fitness for which they

† This Comment received the 2012 Myron Penn Laughlin Award for Excellence in Legal Research and Writing.

have evolved different impassioned—and potentially deadly—responses. These passions should be incorporated into manslaughter doctrine.

For the law to apply fairly and mitigate for the frailty of human nature, it must take the actual design of the mind seriously. This Comment argues for a better understanding of human nature in manslaughter mitigation that will result in more just adjudications for both men and women.

INTRODUCTION 181

1. UNFAIR AND UNWIELDY MANSLAUGHTER 184

   1. The Common Law: In Flagrante Delicto and Its Limited Applicability 185

   2. The Model Penal Code: Extreme Emotional Disturbance and

      Its Wide Application 188

   3. Alternative Approaches: Unwritten Laws and Scholarly

      Ideas 191

2. PASSION KILLING—AN EVOLUTIONARY PERSPECTIVE 195

   1. General Evolutionary Principles 196

   2. Male Mating Interests and Jealousy 200

   3. Female Mating Interests and Jealousy 202

3. THE EVOLUTIONARY SOLUTION 205

   1. The Evolutionary Union of Partial Excuse and Partial Justification 205

   2. The Evolutionary Solution Explained 209

CONCLUSION 214

INTRODUCTION

[T]he law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted . . . regards [manslaughter] as of a less heinous

character 1

To deprive others of their life is one of the most effective means of increasing one’s own fitness.2

Humans kill because we love.3 It is an age-old story familiar to the human race, colloquially deemed a “crime of passion.” Manslaughter mitigation recognizes this frailty of human nature that results in passion killing.4 The law takes what would otherwise be murder and reduces the crime itself to a lesser

one, indicating the society’s belief that this dynamic part of humanity cannot be as morally culpable.5 While there were a limited number of ways to be legally provoked under the traditional common law,6 the quintessential provocation has often been thought to be in flagrante delicto—the sudden, in- person discovery of one’s romantic partner engaging in sexual activity with someone else.7 While many American jurisdictions have moved away from the

1 Maher v. People, 10 Mich. 212, 219 (1862).

1. JOSEPH LOPREATO, HUMAN NATURE AND BIOCULTURAL ETHICS 137–38 (1984).

2. Cf. Margo I. Wilson & Martin Daly, Who Kills Whom in Spouse Killings? On the Exceptional Sex Ratio of Spousal Homicides in the United States, 30 CRIMINOLOGY 189, 189 (1992) (“During the 10 years

   from 1976 to 1985, a total of 18,417 people are estimated to have been killed by their spouses in the United States.”).

3. See Andersen v. United States, 170 U.S. 481, 510 (1898) (“The law, in recognition of the frailty of

   human nature, regards a homicide committed under the influence of sudden passion, or in hot blood produced by adequate cause, and before a reasonable time has elapsed for the blood to cool, as an offen[s]e of a less heinous character than murder.”); Maher, 10 Mich. at 219 (“[T]he law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted . . . regards the offense as of a less heinous character . . . .”); MODEL PENAL CODE § 210.3 cmt. 5(a), at 55 (Official Draft and Revised Comments 1980) (explaining that the mitigation is a “concession to human weakness” and that “one who kills in response to certain provoking events should be regarded as demonstrating a significantly different character deficiency than one who kills in their absence”).

4. MODEL PENAL CODE § 210.3 cmt. 5(a), at 54 (Official Draft and Revised Comments 1980).

5. Note, Manslaughter and the Adequacy of Provocation: The Reasonableness of the Reasonable Man, 106 U. PA. L. REV. 1021, 1023–24 (1958) (enumerating the “nineteenth century four”). When voluntary manslaughter was codified in American jurisdictions, almost all states referred to the common law scheme for guidance in adjudication. MODEL PENAL CODE § 210.3 cmt. 2, at 45 (Official Draft and Revised Comments 1980). Texas was the only state that did not have a manslaughter offense. Id. at 45 n.6.

6. See Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. CAL. REV. L. & WOMEN’S STUD. 71, 72 (1992); Susan D. Rozelle, Controlling Passion: Adultery and the Provocation Defense, 37 RUTGERS L.J. 197, 198–99 (2005).

   rigidity of categorical approach,8 sexual infidelity remains a paradigmatic approach to manslaughter mitigation.9 Note this carnal requirement: the common law sanctions manslaughter for the sudden discovery of sexual infidelity, leaving impassioned homicide that results from non-sexual infidelity subject to the laws of murder and sympathies of jurors.

   
   

   In reality, though, sexual misconduct is not the only kind of iniquitous love affair that causes intense passions.10 This in flagrante delicto category does not seem to describe the range of passions that we colloquially find to be understandable triggers for a crime of passion.11 Indeed, in some particularly sympathetic circumstances, courts have innovated to mete out a just verdict around the rigid law.12

   
   

   The common law’s inflexibility has been addressed by the American Law Institute and legal scholarship.13 The Model Penal Code disbands this rigidity

   
   

7. SANFORD H. KADISH ET AL., CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 395 (8th ed.

   2007) (“[A] minority view[] departs from the conventional common law position that only a few particular circumstances . . . can serve as legally adequate provocation.”); see, e.g., Maher, 10 Mich. at 222–23 (“The law can not with justice assume, by the light of past decisions, to catalogue all the various facts and combinations of facts which shall be held to constitute reasonable or adequate provocation. . . . Provocations will be given without reference to any previous model, and the passions they excite will not consult the precedents.”).

8. Rozelle, supra note 7, at 199.

9. Cf. MODEL PENAL CODE § 210.3 cmt. 5(a), at 61 (Official Draft and Revised Comments 1980) (“By eliminating any reference to provocation in the ordinary sense of improper conduct by the deceased, the Model

   Code avoids arbitrary exclusion of some circumstances that may justify reducing murder to manslaughter.”).

10. Cf. Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 106 YALE L.J. 1331, 1332 (1997) (suggesting that the colloquial understanding of a crime of passion is “the stuff of sordid affairs and bed side confrontations”).

11. See, e.g., ANN JONES, WOMEN WHO KILL 184–88 (The Feminist Press 2009) (1980).

12. See MODEL PENAL CODE § 210.3 cmt. 5(a), at 55 (Official Draft and Revised Comments 1980) (explaining that the extreme emotional disturbance mitigation is a “concession to human weakness” and that “one who kills in response to certain provoking events should be regarded as demonstrating a significantly different character deficiency than one who kills in their absence”); Wendy Keller, Disparate Treatment of Spouse Murder Defendants, 6 S. CAL. REV. L. & WOMEN’S STUD. 255, 282–83 (1996) (discussing the disparate treatment of male and female killers based on a male-oriented legal structure and arguing to address

    female characteristics in killing); Nourse, supra note 11, at 1392–94 (arguing for a restructuring of manslaughter doctrine based on “warranted excuse[s]”); Rozelle, supra note 7, at 232–33 (concluding that manslaughter is inherently a justification defense and, thus, the mitigation should not apply to cases of infidelity at all because there is no threat against the defendant that justifies the use of force); Antonia Elise Miller, Note, Inherent (Gender) Unreasonableness of the Concept of Reasonableness in the Context of Manslaughter Committed in the Heat of Passion, 17 WM. & MARY J. WOMEN & L. 249, 272–75 (2010) [hereinafter Miller, Inherent (Gender) Unreasonableness] (arguing to reformulate manslaughter mitigation to better understand...