Article
Comment
Conspiracy theory
Freedom
Justice
4 min read

Why free speech might just need a crime of passion defence

Horrific crimes against our humanity tell us we must protect our freedoms, not constrict them.

George is a visiting fellow at the London School of Economics and an Anglican priest.

A protester stands with back to the camera, his baseball hat is turned backwards, it reads 'freedom'.
Gayatri Malhotra on Unsplash.

One of the silliest legal defences ever must be the “crime of passion”. Or crime passionnel, as the French knew it for centuries, which should really appear on a menu as one of those haute cuisine desserts they so adore, featuring poached passion fruits in Chantilly sauce: “Non, garcon, tenez-vous la Crepe Suzette. Aujourd’hui je voudrai la crème passionel, s’il vous plait. Et vite – ma femme arrive bientot.”

But to digress in a first paragraph is a crime journalaise, which incidentally is a piece of Franglais that should apply to everything in Le Figaro. So back to crimes of passion. The idea was that an act of spousal infidelity could arouse such a passionate rage that the romantic interloper deserved what they got. First-degree murder could be downgraded to manslaughter, because obviously there can be no malice aforethought in the heats of passion. 

The crime of passion’s bastard offspring is the “gay panic defense”. Note the tell-tale “s” there (though, breathtakingly, interpretations of this defence remain available in both the UK and the US). It runs that a defendant may allege to have found a same-sex sexual advance so offensive or frightening that they were provoked into murdering or otherwise injuring their alleged seducer. Victim-blaming or what?  

Anyway, we might want to dust off crime of passion defences because a leaked report from the Home Office suggests that the definition of extremism in law could be extended to cover “extreme misogyny”, “environmental extremism”, “left-wing, anarchist and single-issue extremism” (it even has its own acronym, LASI) and “conspiracy theories”. 

Now, I’m all for catching misogyny before anyone gets hurt, but all these things are covered by existing laws. And some of them are just plain bonkers. Were I to be charged with holding an extremist environmental opinion or an extreme left-wing, anarchist or single-issue view, I think I’d want to say that it was a crime of passion.  

By which I would mean that there was no malice aforethought because I was acting in the heats of passion for my cause at a time when my balance of mind was impaired. Otherwise, I could get nicked for simply thinking or saying something. Sticks and stones and all that.

But horrific crimes against our humanity tell us we must protect and defend our freedoms, not constrict them. We want to prevent murders, not the saying or thinking of both silly and vile things.

To adopt Serious Face for a moment, I’m aware that hate crimes are a very big thing indeed. How could it be otherwise when we’ve just commemorated Holocaust Memorial Day. And we’ve also the other week had the sentencing of someone – I wouldn’t even spellcheck his name – for the murder of three little girls in Southport. 

But horrific crimes against our humanity tell us we must protect and defend our freedoms, not constrict them. We want to prevent murders, not the saying or thinking of both silly and vile things. Our concentration should be on that prevention, not the forbidding of attitudes that might (but probably won’t in the vast majority of cases) lead to a violent crime. 

Don’t get me started on Non-Crime Hate Incidents (NCHIs). Oh, you just did. Telegraph columnist Allison Pearson was visited by police last Remembrance Sunday and, surprisingly for someone who has built a career on telling snowflakes to grow a spine, came over all oppressed and persecuted. They were following up a photo she’d posted, claiming it was of Metropolitan Police posing with what she called “Jew-haters” at a London rally in support of Palestine. 

In reality, the photo was taken in Manchester and featured Pakistanis, not Palestinians. There was a clue in their flag having “Pakistan” written on it. But that makes her not a very good journalist. Not a bad, far less a criminal, person. 

A saying usually ascribed to St Augustine, in one of his letters, is that we are to “hate the sin and love the sinner”. Similarly, we must try to hate the crime, but love the criminal. That must remain humanly impossible for the crimes already mentioned in this column. (Though, astonishingly, history records some Jews finding it in their hearts to forgive their Nazi persecutors). 

But we acknowledge that this is where the gospel bar is set. We’re to love our enemies, even if we don’t like them and we condemn their actions. In practice, that means preventing crime in law and holding perpetrators to justice. What it does not mean is going after people who say hateful and stupid things, while other people are actually doing hateful things. The former may and should be about sound intelligence gathering; the latter is effective policing. 

This principle is rooted in our culture, founded on the golden rule of loving our enemies and our neighbours as ourselves. There’s always room for forgiveness as well as justice, as crimes of passion demonstrate.  

And if that sounds recklessly self-sacrificial, we might look at the Passion of Christ and the crimes of passion that were committed during it. As he said himself, tout est accompli.  

 

* "No, boy, hold the Crêpe Suzette. Today I would like the passion cream, please. And quickly – my wife is coming soon." 

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Article
Assisted dying
Care
Comment
Death & life
Suffering
5 min read

Why end of life agony is not a good reason to allow death on demand

Assisted dying and the unintended consequences of compassion.

Graham is the Director of the Centre for Cultural Witness and a former Bishop of Kensington.

A open hand hold a pill.
Towfiqu Barbhuiya on Unsplash.

Those advocating Assisted Dying really have only one strong argument on their side – the argument from compassion. People who have seen relatives dying in extreme pain and discomfort understandably want to avoid that scenario. Surely the best way is to allow assisted dying as an early way out for such people to avoid the agony that such a death involves?  

Now it’s a powerful argument. To be honest I can’t say what I would feel if I faced such a death, or if I had to watch a loved one go through such an ordeal. All the same, there are good reasons to hold back from legalising assisted dying even in the face of distress at the prospect of enduring or having to watch a painful and agonising death.  

In any legislation, you have to bear in mind unintended consequences. A law may benefit one particular group, but have knock-on effects for another group, or wider social implications that are profoundly harmful. Few laws benefit everyone, so lawmakers have to make difficult decisions balancing the rights and benefits of different groups of people. 

It feels odd to be citing percentages and numbers faced with something so elemental and personal and death and suffering, but it is estimated that around two per cent of us will die in extreme pain and discomfort. Add in the 'safeguards' this bill proposes (a person must be suffering from a terminal disease with fewer than six months to live, capable of making such a decision, with two doctors and a judge to approve it) and the number of people this directly affects becomes really quite small. Much as we all sympathise and feel the force of stories of agonising suffering - and of course, every individual matters - to put it bluntly, is it right to entertain the knock-on effects on other groups in society and to make such a fundamental shift in our moral landscape, for the sake of the small number of us who will face this dreadful prospect? Reading the personal stories of those who have endured extreme pain as they approached death, or those who have to watch over ones do so is heart-rending - yet are they enough on their own to sanction a change to the law? 

Much has been made of the subtle pressure put upon elderly or disabled people to end it all, to stop being a burden on others. I have argued elsewhere on Seen and Unseen that that numerous elderly people will feel a moral obligation to safeguard the family inheritance by choosing an early death rather than spend the family fortune on end of life care, or turning their kids into carers for their elderly parents. Individual choice for those who face end of life pain unintentionally  lands an unenviable and unfair choice on many more vulnerable people in our society. Giles Fraser describes the indirect pressure well: 

“You can say “think of the children” with the tiniest inflection of the voice, make the subtlest of reference to money worries. We communicate with each other, often most powerfully, through almost imperceptible gestures of body language and facial expression. No legal safeguard on earth can detect such subliminal messaging.” 

There is also plenty of testimony that suggests that even with constant pain, life is still worth living. Michelle Anna-Moffatt writes movingly  of her brush with assisted suicide and why she pulled back from it, despite living life in constant pain.  

Once we have blurred the line between a carer offering a drink to relieve thirst and effectively killing them, a moral line has been crossed that should make us shudder. 

Despite the safeguards mentioned above, the move towards death on the NHS is bound to lead to a slippery slope – extending the right to die to wider groups with lesser obvious needs. As I wrote in The Times recently, given the grounds on which the case for change is being made – the priority of individual choice – there are no logical grounds for denying the right to die of anyone who chooses that option, regardless of their reasons. If a teenager going through a bout of depression, or a homeless person who cannot see a way out of their situation chooses to end it all, and their choice is absolute, on what grounds could we stop them? Once we have based our ethics on this territory, the slippery slope is not just likely, it is inevitable.  

Then there is the radical shift to our moral landscape. A disabled campaigner argues that asking for someone to help her to die “is no different for me than asking my caregiver to help me on the toilet, or to give me a shower, or a drink, or to help me to eat.” Sorry - but it is different, and we know it. Once we have blurred the line between a carer offering a drink to relieve thirst and effectively killing them, a moral line has been crossed that should make us shudder.  

In Canada, many doctors refuse, or don’t have time to administer the fatal dose so companies have sprung up, offering ‘medical professionals’ to come round with the syringe to finish you off. In other words, companies make money out of killing people. It is the commodification of death. When we have got to that point, you know we have wandered from the path somewhere.  

You would have to be stony-hearted indeed not to feel the force of the argument to avoid pain-filled deaths. Yet is a change to benefit such people worth the radical shift of moral value, the knock-on effects on vulnerable people who will come under pressure to die before their time, the move towards death on demand?  

Surely there are better ways to approach this? Doctors can decide to cease treatment to enable a natural death to take its course, or increase painkillers that will may hasten death - that is humane and falls on the right side of the line of treatment as it is done primarily to relieve pain, not to kill. Christian faith does not argue that life is to be preserved at any cost – our belief in martyrdom gives the lie to that. More importantly, a renewed effort to invest in palliative care and improved anaesthetics will surely reduce such deaths in the longer term. These approaches are surely much wiser and less impactful on the large numbers of vulnerable people in our society than the drastic step of legalising killing on the NHS.