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Omusati leads with the highest number of passion killing cases in the country with eight cases, followed by Kavango West and Kavango East with seven cases. Khomas Region follows suit with two cases, of which one murder was committed just last Saturday while Otjozondjupa Region recorded two cases as well.

Oshana, Oshikoto and Erongo each documented one case of crime of passion killing since January No cases of such a nature were reported from Zambezi and Kunene regions. In cases in which seven women were beheaded over the period, the commonly used weapon was a knife, panga, axe, pistol or strangulation, while a rifle, shoelace, stick and fire were also used in each incident.

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The year started off on a gruesome note with January alone breaking the record with seven cases and five cases in February so far. Almost all of last year, with the exception of October, four passion killings were committed each month from January through March. The killings slowed down to one killing each month from April to July, only to pick up again in August and September with two murders and three murders in November and December The Nampol statistics indicate that most suspects were in their twenties when they committed the violent acts, while the victims were also in their twenties.

This is followed by the second highest number of both victims and suspects of crimes of passion being in the thirties age group. The youngest suspect was a year-old male while the oldest suspect was a year-old at the time they were accused of committing the crime. The youngest victim was an year-old female while the oldest victim was a year-old female. This Part offers an evolutionary solution that replaces sexual infidelity as the basis for manslaughter mitigation with a standard of mitigation based on threats to reproductive fitness. The first section outlines the relevant philosophical theories explaining the use of manslaughter mitigation and their relation to the evolutionary solution.

Scholars have debated the continued purpose of manslaughter mitigation under a number of different rationales: partial excuse, Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale , 73 J. Stephen Garvey took an entirely different approach to heat of passion manslaughter that jettisoned the distinction between partial excuse and partial justification as important. Rather, he argued that the law separates those who kill in defiance of the law and those who kill under the momentary belief that the act would be legal or from the weakness of will.

Essentially, the defendant becomes unable to obey the law because of emotional pressures and weakness of will.


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However, this approach has been strongly criticized as a gateway for mitigating all crimes in which a defendant was simply unable to resist temptation. While this Comment does not seek to join that conversation, it does support a combination of partial excuse and partial justification in cases of infidelity. A threat to reproductive fitness must come from a particular person, and the threat engages the emotional response that provokes the homicidal response. It is worth discussion here because it will play a large role in the scope of mitigation advocated by this Comment in the subsequent section.

The emotion itself is either understandable or justified according to law, and thus the homicide is partially excusable. There are two branches of partial excuse theory: excused emotion and justified emotion. Under an excused emotion rationale, the defendant is thought to have been placed in a state of mind that was not voluntary, and thus the defendant cannot be blamed for his anger that diminished his reasoning capacity.


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If the doctrine is to be defensible, however, it must follow that the anger which undermines choice-capability is itself formed under circumstances in which the actor cannot be fairly blamed for his anger. Otherwise, we have a case of voluntary anger, no more morally deserving of mitigation than voluntary intoxication. From the evolutionary perspective, when the defendant is responding to a threat against reproductive fitness, the threat was likely not induced by the actions of the killer. She is reacting to decisions made by other free agents to commit adultery or to seduce and abandon, which means the threat comes from an outside source.

Additionally under the partial excuse theory, some theorists argue for mitigation under a justified emotion rationale. Despite the element of justified emotion, advocates of this approach characterize their accounts as excuse theories. The emotion that led to the impassioned homicide was itself justified in light of the surrounding circumstances. Because the emotion is justified i. And from the evolutionary perspective, this brings in the issue of predictability. When the emotion is expected given known psychological propensities, it can be said to be justified because it is a cognitively appropriate response.

Indeed, some scholars have argued that because the defendant still maintains an extent of self-control during the altercation, she does not deserve mitigation for the mental disturbance. The main point is that the defendant was not automatically pushed into committing homicide; rather, she was placed in a state of mind in which passion clouded her judgment and killing became an acceptable course of action.

And indeed, this is the case from the evolutionary perspective; homicide is rarely the best solution for a problem, but nonetheless it can be used to solve it. The other major school of thought—partial justification—holds that a defendant who kills in the heat of passion should receive mitigation for the homicide because she was provoked in a manner that partially warranted a response against the provoker. This school focuses on the circumstances surrounding how the defendant is provoked rather than the emotional state of mind the defendant experiences.

If a justified action is not a criminal action, then a partially justified action is less criminal than one not justified at all. It has been argued that the defense should only be implemented in circumstances where the defendant was partially justified in responding in a homicidal manner regardless of the diminished reasoning capacity, which would effectively reduce the number of times in which mitigation is applied.

Of course, this theory has been criticized because it suggests killing a person may be justified and does not adequately explain the heat of passion or extreme emotional disturbance requirement of manslaughter. Garvey, supra note , at Thus, the rationale cannot adequately explain each requirement for the defense to be satisfied.

Evolutionary theory also finds relevance under this philosophy. But, overall, the evolutionary solution operates as a union of both partial excuse and partial justification. Indeed, even outside of an evolutionary context, Andrew Ashworth argued that the entanglement of the two rationales is no accident and that it is a necessary combination for the functionality of the mitigation. His union of the two rationales has been expanded by two other proponents of the same combination. These theorists argue that partial excuse and partial justification are both necessary—but not sufficient—to explain the mitigation.

Neither rationale is able to serve as the foundation of the mitigation on its own because neither can account for the dual requirements of the doctrine—passion and legal provocation. Rather, the defendant must be partially excused because of her distressed state of mind and partially justified in reacting to the circumstances. They also argue that the two rationales are not mutually exclusive, despite this belief in mutual exclusivity being the main reason that many criminal law scholars are reluctant to consider the two approaches as compatible. This combination theory seems to be a natural fit to bring in evolutionary analysis as the best background method for fair adjudication.

In any case involving the nineteenth century four, See Note, supra note 6, at Heat of passion manslaughter mitigates for the frailty of human nature; this is a clear endeavor by the law to look into the natural world for guidance. The discipline of evolutionary psychology seeks to explain what human nature is by examining the psychological adaptations that the human species has evolved over the course of thousands of years. Who else could the universally reasonable person be but a person responding in predictable ways by engaging psychological programming that is shared by humanity?

If the law mitigates for homicidal rage that manifests from one evolutionary adaption that addresses a severe threat to reproductive fitness for one sex, then it should mitigate for all adaptations that are a member of that set of threats because the law professes to apply equally to all persons.

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To apply fairly to all individuals, the law should mitigate murder to manslaughter whenever a defendant is provoked by a severe threat to his or her reproductive fitness. It is very predictable which fact patterns would fit within the evolutionary standard; thus, the evolutionary solution remedies the problem of normativity in the MPC and alternative approaches See supra Part I. It has already done so in the case of sexual infidelity, and it should expand its mitigation to the entirety of the set of threats against reproductive fitness. When a woman is seduced by a lover and then abandoned e.

That deserves mitigation—but not exoneration—which this standard would provide. The Moriarty scenario is certainly not limited to the s. In a recent incident, a woman killed a romantic rival while confronting her ex-boyfriend for not helping raise their baby. The Chicago Tribune reported that the suspect confronted her ex-boyfriend as he left a convenience store and sprayed him with mace. The defendant began fighting with her as well and stabbed her several times, killing her. The influx of emotion in this tragic scenario is not surprising: the woman, abandoned with her offspring by the man, was amidst her deserting lover and his new girlfriend.

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Under an evolutionary scheme, the question of manslaughter mitigation would certainly go to the jury in this case. And under the partial justification aspect of the mitigation, the court can determine which individuals will fall within the range of potential victims that would allow mitigation because of their involvement in the provocation e.


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Beyond these categories, homicides against other victims will not be mitigated e. For example, exiting a marriage that did not produce children would not be as distressing to the reasonable man as walking in on his spouse engaging in sexual infidelity. Looking at the number of evolutionary challenges faced by the defendant at the time of the homicide can create a normative and systematic test with a clear scope. One issue that arises with evolutionary analysis is the apparent sexism permeating this formula. Evolutionary theory embraces sex differences in a way that the law usually wants to avoid.

The immediately obvious problem is that men will tend to have homicides mitigated for one set of circumstances e. The sociological level of analysis that invokes a difference among the sexes in the actual application is inappropriate and is not the standard advocated by this Comment. The different sexes will have their homicides mitigated for the same reason under the same standard—the defendant experienced a severe threat against his or her reproductive fitness. The crimes are mitigated when they result from the same set of threats; because the formula is the same and simply invoked by different trends in maleness and femaleness, it should not be regarded as sexist.

Both sexes are provided the same opportunity for mitigation that the other has. A woman who kills as a response to sexual infidelity should still receive mitigation, even though that may not be a quintessentially female response, and vice versa for men. This solution confronts the issue of suddenness. State, So. This analytical approach addresses psychological mechanisms present in human nature for universal situations that can befall any person at any time because of the machinery making up the psyche.

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