State of passion in criminal law: everything about the qualification of murder or other crime committed in this emotional state

If you think that this does not apply to you, you are wrong! Anyone can experience this; scientists say that even monkeys can experience such emotional disturbance. If we speak in layman's terms - an explosion, a flash, a short circuit, and then you look, and everything has already happened... There are even statistical data that show that the overwhelming number of those convicted of a crime in a state of passion are those who have not been convicted before!! About 80% of them were characterized extremely positively, and of these, about 10% had higher education. And only less than 10% had no education. Like this!

The list of the most dangerous and serious crimes includes the deprivation of human life. When studying such a case, law enforcement agencies take into account all possible aggravating and mitigating circumstances (Article 66 of the Code of Criminal Procedure). One of the types of premeditated murder is committed in a state of passion, in which the suspect committed a crime.

In the process of a serious shock, a person cannot control himself, which becomes the main factor that leads to negative consequences. Considering this condition of the suspect, the court will apply an appropriate punishment that will correspond to the circumstances, nature and severity of the offense.

What is a state of passion: concept, signs and manifestation

Affectus is a fairly strong emotional state that arises quickly and has a pronounced course. Expressed in anger, rage, despair, and maybe even fear. Very often, this condition occurs suddenly and lasts for several seconds. This feeling is practically irresistible, which is why the legislator introduced independent qualifications (privileged compounds). In some cases, this may only be a mitigating circumstance. (OPINION OF A LAWYER)

Characteristic features of the condition:

There is absolutely no ability to think logically;
a person cannot control his actions and restrain himself.

The affect is often accompanied by very sudden movements, disordered speech, a raised voice - screaming, hysteria. All actions performed by a person during this period become a real explosion of emotions.

IMPORTANT ! Only in 25-26% of cases the presence of affect was correctly established at the preliminary investigation stage; in 60% of cases, the incorrect classification of the act was corrected by the court when passing a sentence; But the percentage of errors in verdicts remained high.

This situation can happen to anyone who is experiencing severe emotional disturbance. Such anxiety can lead to insult or humiliation from others, as well as immoral and illegal actions directed at the person. Another common reason is a prolonged situation that has traumatized the mental state.

IMPORTANT ! The state of affect is continuous with the situation and cannot be separated in time and in the influence of the factor on the person. For example: if a person, after being attacked, went home and took a knife and subsequently stabbed the attacker, then such actions cannot be qualified as having “affect”.

“State of affect” in psychology

A state of affect from a psychological point of view is a strong emotional experience that lasts a short period of time. A person is able to accept his own emotional changes and perceive them as part of himself. However, such an effect is considered alien and occurs against human will. It occurs unexpectedly and disturbs the normal functioning of consciousness. Moreover, this condition often leads to pathological consequences for the human psyche.

The affective state helps the psyche cope with complex stressful situations. After all, the main task of consciousness is to preserve one’s body (existence). Therefore, when dangerous situations arise, the body automatically switches to “emergency mode,” which leads to the mobilization of psychological and physical resources. That is why, after the end of the affective state, a person feels devastated and does not fully understand what happened. In this case, partial amnesia is noted - thus, the psyche protects the consciousness from processing everything that happens, which can cause injury to it. Sometimes patients even experience a catatonic state.

State of passion in criminal law

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In criminal law, affect is considered in the form of partial atrophy of the lability of thinking, as well as a weakening of the thought process and reactions. If the forensic examination proves that the person truly could not control his actions, then the court will apply mitigating circumstances for him.

One of the first serious works in judicial practice on this issue was the Plenum of the USSR Supreme Court No. 14 of August 16, 1984. “On the application by courts of legislation ensuring the right to necessary defense against dangerous attacks.”

Expert opinion

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The legislator has not established differentiation of the degree of violence as a basis for distinguishing the qualifications of a crime (its elements). As a result, battles between “necessary defense” and “exceeding the measures of necessary defense” are raging.

The reasons that lead to inappropriate manifestations are clearly regulated in criminal law. These include:

committed bullying and insults towards strangers;
violence – physical or emotional;
systemic immoral behavior.

Important ! However, Affectus cannot be predicted in any way. Often it affects not only the people around him, but also the victim himself. After all, the victim cannot guess what exactly will cause a new outburst of emotions, and the criminal does not know what his reaction will be. This state belongs to the category of one-time impulse reactions to a certain action and is not included in the list of consciously intentional actions.

Here we can conclude that the list of reasons for passion used in the law is wider compared to the possible grounds for necessary defense.

Affective states: what are they?

In order to understand the content, you need to consider “affect” from all sides. The definition of this concept is a mental state that arises suddenly and is uncontrollable by the individual, carrying negative actions.

The law approves certain articles regulating the commission of acts during a given emotional state. This includes:

Article 107 of the Criminal Code of the Russian Federation. Considers murder in the presence of a mental disorder;
Article 113 of the Criminal Code of the Russian Federation. Considers causing serious and moderate harm to health, including those associated with this disorder.

Causes of the disorder

From the point of view of psychology, affect is always a strong emotional disturbance against the background of some events or actions.

In jurisprudence, the concept of affect is identified with a psychological characteristic, therefore the factors causing this state may be:

Committing violent acts of physical and psychological nature.
Insulting actions against a specific person or his relatives.
Long-term repeated circumstances causing mental trauma in combination with illegal actions.
Various types of crimes against a person that significantly violate his rights.
Immoral behavior, hatred.

Types of affect

Stress is one of the important influential factors on the emotional state of every person. Taking into account the specific situation and further developments of events, three types of Affectus :

Physiological affect is a completely normal reaction of the body to a stressful situation. A manifestation of this type is noted as a result of severe emotional shock. Demonstration of the condition is considered moderate and does not go beyond the permitted social boundaries. The affect arises very quickly and subsides just as quickly. Some people don't even notice much change in their behavior.
A pathological effect is a painful condition that can occur to an absolutely healthy person as a result of the psychotraumatic conditions in which he finds himself. The activity of manifestations is individual and directly depends on the personality of each person. Those who have disturbances in the functioning of the nervous system, inhibition and impaired excitation processes are prone to such affect. The form of expression is verbal and physical aggression directed at others.
Affect of inadequacy - compared to the two previous types, this affect has a long-term, constant effect. It occurs due to the fact that the individual does not have the ability to perform the desired action. For young children this is a completely normal reaction. However, for adults, such affect has a detrimental effect - manifestations of aggression, resentment, and negativism.

Taking into account the specific type of affective state, one can judge the nature of the crime. This happens by analyzing patient responses to detailed questions about the internal sensations of what happened.

Strong emotional disturbance during an “excess of defense” acts as an accompanying subjective circumstance and should not affect the qualification of the defender’s actions.

Affect in psychology

The emotional sphere of a person represents special mental processes, as well as states that reflect the individual’s experiences in different situations. Emotions are the subject’s reaction to the current stimulus, as well as to the result of actions. Emotions throughout life influence the human psyche, penetrating all mental processes.

Affect in psychology is strong as well as short-term emotions (experiences) that occur after certain stimuli. State of affect and emotion are different from each other. Emotions are perceived by a person as an integral part of himself - “I”, and affect is a state that appears against the will of a person. Affect occurs in unexpected stressful situations and is characterized by a narrowing of consciousness, the extreme degree of which is a pathological affective reaction.

Mental excitement performs an important adaptive function, preparing a person for an appropriate reaction to internal and external events, and is marked by a high severity of emotional experiences, leading to the mobilization of a person’s psychological as well as physical resources. One of the signs is partial memory loss, which is not observed in every reaction. In some cases, the individual does not remember the events that preceded the affective reaction, as well as the events that occurred during emotional disturbance.

Psychological affect is marked by arousal of mental activity, which reduces control over behavior. This circumstance leads to a crime and entails legal consequences. Persons in a state of mental agitation are limited in their ability to understand their actions. Psychological affect has a significant impact on a person, while disorganizing the psyche, affecting its higher mental functions.

The importance of the emotional state when qualifying murders and other crimes in the Criminal Code

Expert opinion

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Exceeding the limits of necessary defense, committed in a state of passion, excludes criminal liability, regardless of the consequences. Since the same reason can cause different uncontrollable emotions in different people (for one - fear, and for another - anger).

According to Art. 116 of the Criminal Code of Ukraine for murder in a state of passion, the offender must bear criminal liability. This applies to citizens who are in a state of physiological affect:

a person’s self-esteem and self-control become difficult;
a decrease in control over one’s actions, but not a complete loss of control.

In a state of pathological affect, a person does not understand what he is doing and cannot control himself. Therefore, according to Art. 19 of the Criminal Code, the criminal was declared insane at this moment.

Art. 116 of the Criminal Code provides for criminal liability for criminals who committed premeditated murder while in a state of physiological affect. All other cases: infliction of bodily harm of varying degrees of severity or murder by negligence - are qualified under Art. 119 of the Criminal Code.

Murder is not considered under Art. 116 of the Criminal Code in several cases when physiological affect was caused by the legitimate actions of the victim:

taking into custody (Article 155 of the Code of Criminal Procedure);
confiscation of movable and immovable property (Article 59 of the Criminal Code);
detention of a criminal (Article 38 of the Criminal Code) and more.

As a result, a crime committed in the process of physiological affect is considered as a reaction to the unlawful actions of the victim. Therefore, such a crime is considered committed under mitigating circumstances.

Difficulties of proof

Murder in a state of passion is considered by judicial practice from several angles.

The following aspects need to be taken into account:

The situation before the crime. A person’s behavior in everyday life is clarified, that is, his usual reactions, and his psychological portrait is drawn up. It is also necessary to consider living conditions, the presence of provoking factors, such as constant bullying or beatings. At this stage, a survey of relatives, colleagues or neighbors is conducted, who can, one way or another, help analyze the personality from all sides.
The actions of the accused during the commission of the crime . Here it is important to examine the process of the offense itself, that is, to study how it was carried out. Any details are important: what the accused said and how he looked, whether the victim’s behavior caused such a reaction.
The situation after a criminal act. The state of the accused is assessed immediately after the incident: does he remember what happened, is there a fading of emotions, loss of strength, apathy. It is also important to find out whether he tried to hide traces of the crime, escape and other facts.

How to prove a state of passion

In the process of an affective state and frustration, a person may commit a crime that he will soon regret. In this situation, the main evidence in the case is considered to be:

testimony of possible witnesses;
documented facts that tell about the event that caused the criminal’s behavior;
the behavior of the accused before, during and after the commission of the crime.

The key decision is to conduct a forensic examination, during which the defendant communicates with an expert psychologist. As a result of which the decision is made “could or could not account for his actions at the time of the commission of the crime”

Questions to ask the experts

Thus, when a lawyer defending a criminal defendant decides to go to the CSPE, it is necessary to clearly articulate the questions that should be asked by the experts.

Before the adoption of the new Criminal Code, experts were asked whether the accused was in a physiological state at the time of the commission of the crime. A positive answer to such a question will have a significant impact on the qualification of the acts committed by the accused under the relevant articles of the Criminal Code (Articles 107, 113).

Against this background, the conclusions made in the decision of the Supreme Court of the Russian Federation dated September 9, 1998 in the Klimova case, about the commission of a crime under paragraph “d” of Art. 102 of the Criminal Code of the RSFSR (murder committed with extreme cruelty).

The motives established by the court, the circumstances of the crime, and Klimova’s mental state immediately at the time of the crime lead to the conclusion that she committed the murder of G. in a state of sudden strong mental arousal caused by violence, bullying of the victim, as well as a long-term psychotraumatic situation that arose as a result systematic illegal and immoral behavior of the victim, i.e. committed a crime under Part 1 of Art. 107 of the Criminal Code of the Russian Federation.

The expert’s reference to the fact that Klimova’s state of mind did not have a “physiological effect” cannot, in this particular case, affect the objective legal assessment of the convict’s state of mind at the time of the crime, taking into account the nature of the victim’s behavior and the suddenness of the murderous intent. The suddenness of the actions of Klimova, who in a short time inflicted wounds on the victim immediately after she was subjected to violence on his part, is also confirmed by the randomness of her choice of instruments of crime (kitchen knives, forks), and the randomness of the blows inflicted.

However, the question of whether the accused is in a state of passion should not and cannot be the only one. In addition, when asking questions to an expert, the adviser must formulate them in such a way that the expert cannot answer the question negatively.

It is necessary to pay attention to the point of view of I.A. Kudryavtseva: “When identifying the psychological cause-and-effect relationships of affect, specialists can only take into account the subjective meaning of the affective cause. In no case should it be confused with the legal concepts of the gravity of the offense, immorality of actions and other qualifying features of Art. 107 of the Criminal Code of the Russian Federation and replace legal concepts with psychological ones. Assessing the objective gravity and legal qualification of the victim’s unlawful actions that caused the assault is the prerogative and competence of only lawyers.”

In this light, the defense attorney could be advised to formulate questions that are more related to the field of psychological science and take the form “is it possible in the heat of the moment that ...”, “is it characteristic of a state of passion that ...”, “is the defendant’s behavior in the heat of the moment when..." After such introductory phrases, the lawyer must point out the circumstances that arose in the specific case in which he is working. Examples include questions such as:

Is it possible to have a state of affect in people who are anxious, indecisive and have repeatedly attempted suicide?

Is the defendant's behavior before and during the act of passion typical, such as muttering, panting, "strange" facial expressions, and shaking hands?

Does this happen in the heat of the moment when the defendant remains near the body after the murder and falls asleep?

Is partial memory loss possible in a state of passion?

Is it typical for a state of passion that the accused says: “I don’t know what came over me”, “I don’t understand why I did it”?

Only after these questions is it reasonable to ask the main question: Was the accused in a state of anger?

This order and way of asking questions should push the expert to answer positively the last question: about the state of affect.

Features of examination to confirm affect

Organizing and conducting an examination after a physiological affect is considered quite difficult in methodological terms. Such difficulties lie in the process of expert research, when it is necessary to convey the state that a person has experienced. Therefore, experts use the methods that are available to them. One of these methods is considered to be a retrospective psychological analysis of a wrongful act, which is carried out on the basis of the received materials in a criminal case.

An expert psychologist must include in the investigation:

A detailed analysis of the situation that led to these consequences.
Conducting an analysis of stable personality traits of a potential criminal. Witness testimony, characteristics from the workplace, place of study, and more are used as evidence.
Analysis of the psychophysiological state of the perpetrator at the time of the crime - nervous breakdown, somatic illnesses, fatigue, insomnia, etc.
Analysis of the sequence of actions taken, their expediency.
Analysis of the behavior of the criminal after the committed actions.
Analysis by the perpetrator of his actions.

IMPORTANT! Affect during defensive actions differs from necessary defense, although it has a common nature.

Much of the information needed to make the expert's final conclusions will be obtained through communication with the perpetrator. Such a conversation does not have a specific order, and questions are asked and selected in such a way that the expert can get a detailed picture of the subject’s inner world, including the nuances of the crime.

Signs

Affect is an extraordinary state that differs from other mental phenomena. And the external manifestations of this state have their own specifics.

There are quite a lot of these manifestations, and only some of them are mandatory.

The mental impact on the patient must be unexpected and sudden.
The state of passion itself must also be sudden.
The emotional reaction is explosive.
A partial narrowing of consciousness occurs - perception becomes incomplete, fragmentary; such a state can manifest itself at a separate moment, or it can be long-lasting.
The voluntary regulation of actions is disrupted: they become unmediated, and the ability to predict the results of actions decreases.
Physical exhaustion.
Mental exhaustion.

In addition to these manifestations, the state of passion may be accompanied by other signs

A feeling of hopelessness in the current situation.
Poor psychophysiological state - overwork, lack of sleep, any somatic disease, etc.
Loss of a sense of reality, experiences associated with psychotraumatic effects, distorted perception of reality.
Speech and motor activity disorders (automatisms), excessive aggressive behavior of the patient, which does not correspond to his value orientation.
A sharp change in any vegetative manifestations, in particular vasomotor.
Mental disorientation.
Incomplete understanding and awareness of what happened.
Committing actions that are atypical for the patient’s personality type (aggression, stupor, desire to harm oneself or commit suicide).

What to do if affect is not confirmed during a psychiatric examination

When making court decisions, judges do not always take into account the motivational part of the expert opinion. After all, not only the expert’s conclusion matters, but also the expert’s determination of the defendant’s emotional stress, which led to negative consequences.

Expert opinion

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“For the application of Art. 116 of the Criminal Code of Ukraine, it is important to prove that the criminal’s strong state of mind was provoked by illegal violence, constant bullying or severe resentment. Only the use of such reasons can confirm the presence of this composition.”

The lawyer will help accompany the psychiatric examination, and if his client’s state of passion is not confirmed, a repeated request for a second examination will be submitted. In addition, it is not necessary to have positive results of the examination; if the case is handled competently by the lawyer who is defending his client, this can be achieved as a mitigating circumstance. It all depends on the evidence collected, the consent of the accused to help the investigation, and his obvious nervous breakdown.

Causes of affect

Emotions - what is it in psychology

an affective act is a change in a person’s emotional reactions for the following reasons:

the emergence of a conflict situation that is significant for the individual;
the appearance of a threat to life in any form;
unjustified hopes and exaggerated expectations;
affecting feelings such as self-esteem, self-determination, moral values.

Regardless of the reason, such a reaction is always individual.

In a state of affectuctus

Main conclusions

Affect, like states equated to it, are limiting, extreme states that cause sudden changes in a person, which manifests itself in behavior and specific actions. Such conditions are not pathological, do not cause confusion, and do not eliminate complete control over actions.

For all crimes committed in a state of passion, the perpetrator must bear commensurate criminal liability, the nature of which depends on the following important factors:

Determining the exact reasons that brought a person to an uncontrolled emotional state.
A type of affect that depends on the individual characteristics of each person and the situation in which she finds herself.
The behavior of the criminal during and after the crime was committed - admission of guilt, repentance, willingness to cooperate with the investigation.

One of the fundamental proofs of the state of affect is the conduct of the SM Examination. This examination is carried out in the institutions of the Ministry of Health directly by an expert psychologist as part of a council, who, after studying the case materials, creates a list of questions. These questions will help to reveal in detail the elements of the crime and understand the actions of the criminal.

Help from a lawyer

To establish the fact that a person was or was not in a state of passion, a comprehensive outpatient forensic psychiatric examination should be ordered during the preliminary investigation. The conclusions of such an examination must clearly indicate whether the defendant was in a state of strong emotional disturbance when committing the crime or not. During the trial, the court, based on the results of the examination and other data (protocols of interrogation of witnesses, suspects, etc.), determines definitively whether it can be considered that the crime was committed in a state of passion or not.

If you committed an illegal act in a state of strong excitement, you should definitely involve a lawyer in the case. An experienced lawyer will help you achieve mitigation of guilt when sentencing. The lawyer will also help:

prepare questions for the expert to establish the state of passion;
if the results of the examination are negative, then the lawyer has the right to request an additional or repeat examination;
will represent the client's interests in court and investigative authorities.

In practice, an examination can often be challenged if the expert’s conclusion is based on an erroneous assessment or if there are contradictions between the expert’s conclusions and the circumstances that took place during the commission of the crime. Even if the court rejects the lawyer’s arguments, the human rights defender has the right to appeal the court’s verdict in the appellate court.

Consequences of affect and their treatment

Affect, as an “exceptional” reaction of the body to a stimulus, causes significant harm to the body of the person who experiences it. In this state, the body spends a huge amount of resources in a very short time, after which the post-affective state begins; it is expressed in weakness, chills, increased sweating - this way the body gets rid of excess adrenaline. In an affective state, the heart experiences enormous stress, which can lead to heart failure, arrhythmia or angina.

The nervous system, which is overloaded at the time of an affective state, also suffers seriously. Depletion may occur, especially if the affective state is too strong or repeated repeatedly. Against this background, nervous and mental illnesses, such as manic-depressive syndrome, psychoses, and neuroses, can develop.

The consequences of an affective state are treated with medication and psychotherapy - just like many other mental illnesses. The doctor prescribes certain sedatives and drugs that strengthen the nervous system, the list of which may vary depending on the extent of the consequences. It is desirable that drug and psychotherapeutic treatment be used in combination.

A visit to a psychologist or psychotherapist is also useful because it helps improve the state of the nervous system for those people who are most susceptible to affective states. Long-term psychological treatment allows them to learn to control their emotions and subsequently independently cope with the consequences of attacks, and the attacks themselves begin to occur less frequently. Of course, a psychologist must be a real specialist in his field, which in Russia, alas, is still quite a rare phenomenon.

Possible reasons

What are the reasons for the manifestation of affect? This condition occurs very rarely, and many people, fortunately, never manage to experience it throughout their lives. This state is also not typical for the situations in which it occurs: usually the reaction to them is fear, despair or another feeling.

The state of affect is the result of a combination of several factors

The created situation is perceived as threatening the life, health and well-being of a person or his loved ones.
The unexpectedness of a situation that leaves no time for thinking and requires an immediate response.
The presence of a sharp contradiction between a vital need and the inability to satisfy it; in this case, there is a desire to urgently and by any means remove the obstacle so that it becomes possible to get what you want.
Features of the nervous system of a given person, namely, his increased excitability, emotionality, unstable state of the entire psyche, prolonged frustration as a result of long-term exposure to negative emotions.

The cause of affect can also be particularly strong feelings that arise as a result of some kind of interpersonal conflict. In such a situation, human living conditions become unbearable.

Affect, apparently, in origin is a kind of protective mechanism created by nature and reserved for exceptional situations. This is evidenced by the fact that this state is not controlled by consciousness and is, in fact, instinctive. In natural conditions, an affective state is a completely natural reaction, whereas in human society it becomes inappropriate.