NCJ Number
64003
Journal
ZEITSCHRIFT FUER DIE GESAMTE STRAFRECHTSWISSENSCHAFT Volume: 27 Issue: 3 Dated: (1977) Pages: 796-848
Date Published
1977
Length
53 pages
Annotation
THE BASIS FOR THE DIFFERENTIATION OF HOMICIDE IN THE HEAT OF PASSION FROM MURDER ACCORDING TO THE 1974 REVISED AUSTRIAN CRIMINAL CODE IS DETAILED.
Abstract
AS DEFINED BY THE CODE, HOMICIDE IN PASSION IS PUNISHABLE BY A MORE LENIENT SENTENCE THAN HOMICIDE, ALTHOUGH WHETHER HOMICIDE IN PASSION IS TO BE REGARDED AS A SEPARATE CRIME REMAINS UNCLEAR. FOLLOWING AN OLD AUSTRIAN TRADITION, THE DEFINITION OF THE OFFENSE LIES BETWEEN THE DEFINITIONS OF WEST GERMANY AND SWITZERLAND. THE LAW PRESUMES THAT MENTAL COMPETENCE IS AFFECTED BY THE VIOLENCE OF THE EMOTION, ALTHOUGH DIFFERENTIATING DEGREES OF EMOTION PROVE PROBLEMATIC, AND THAT THE CAPACITY OF THE OFFENDER ACCORDING TO HIS PERSONALITY STRUCTURE TO COMMIT SUCH A CRIME MUST BE ESTABLISHED. CAPACITY TO COMMIT A CRIME IS DETERMINED BY THE OFFENDER'S ATTITUDES AND CHARACTER, AS WELL AS BY THE EXTENUATING CIRCUMSTANCES SURROUNDING THE CRIME. THE ETHICAL EVALUATION OF THE RELATIONSHIP BETWEEN CAUSE AND REACTION IN HOMICIDES IS BASED ON AN AUSTRIAN VERSION OF THE 'REASONABLE MAN' RULE, ALTHOUGH THERE IS SOME QUESTION OF THE DOCTRINE'S APPLICABILITY IN EXTREME SEXUAL OR VIOLENT CRIMES. PARTICULARLY PROBLEMATIC ARE THE NOTION OF 'EXCUSABLE EMOTIONS' (NOT TO BE CONFUSED WITH 'COMPREHENSIBLE EMOTIONS'), THE DEGREE OF RESPONSIBILITY OF OFFENDERS FOR PLACING THEMSELVES IN DANGEROUSLY EMOTIONAL, PROVOCATIVE SITUATIONS, AND THE AMBIGUOUS TERMINOLOGY USED, I.E., 'TO BE CARRIED AWAY BY AN EMOTION,' BECAUSE THE LAW SEPARATES RESPONSIBILITY FOR THE EMOTION FROM RESPONSIBILITY FOR THE CRIME AND BECAUSE A PREMEDITATED CRIME OF PASSION IS A CONTRADICTION IN TERMS. SUCH ELEMENTS AS TIME SPAN AND DEGREE OF DESPAIR PLAY A VITAL ROLE. REJECTED ARE THE SWISS PRACTICES OF IGNORING EXCUSABILITY OF EMOTION BECAUSE REDUCED COMPETENCE IS ALREADY A LENIENCY FACTOR AND OF FOCUSING ON EXCUSABILITY OF MOTIVES FOR WHICH REDUCED SENTENCES ARE NOT DEPENDENT ON REDUCED COMPETENCE, BECAUSE THE LAW ITSELF LINKS THE EXCUSABILITY AND COMPETENCE CONCEPTS. EXTENSIVE NOTES ARE SUPPLIED. --IN GERMAN. (KMD)