On the question of the public danger of jealousy as a motive for a crime (in the context of preventive police activities)

Sergeeva Anzhelika Anatol'evna PhD in Law Associate Professor, Department of Criminal Law and Procedure, St. Petersburg Institute (Branch) All-Russian State University of Justice 199178, Russia, Cankt-Peterburg, g. Saint Petersburg, ul. 10-Ya liniya v.o., 19 lokhi@yandex.ru Other publications by this author

The phenomenon of jealousy has been generating criminal aggression since time immemorial. However, its understanding in religious, linguistic and legal sources is characterized by a relative diversity, which it seems necessary to pay attention to. As a motive for a crime, jealousy has received scientific understanding in the works of many famous scientists: in particular, Yu. M. Antonyan, S. V. Borodin, O. S. Kapinus, I. B. Stepanova, N. A. Chernova and other authors addressed this issue. The conclusions substantiated by them are of high value, but require some updating. On this basis, it becomes possible to assess the social danger of jealousy as a motive for a crime (according to the Ministry of Internal Affairs of Russia, about 12.5% of violent crimes are committed based on the motive of jealousy, which allows us to conclude that its public danger is somewhat underestimated). The results obtained can be used in the planning and implementation of preventive measures, primarily in the field of preventing violence in the sphere of family and domestic relations, which are within the competence of the police.

The methodology of the research is based on the method of dialectical cognition, includes methods of analysis, synthesis, deductive and inductive, formal-legal, historical-legal and comparative-legal methods. Their application provides an opportunity to give the author's definition of the motive of jealousy and formulate conclusions characterized by novelty regarding its social danger. First of all, it is necessary to turn to religious and linguistic sources, and then pay attention to the historical experience of reflecting the motive of jealousy in criminal legislation. 

In the biblical texts, one can find mention of the "spirit of jealousy" (Numbers 5:14), accompanying the detection of adultery, as well as of "zealous service" to the supreme being (4 Samuel 10:16) and "jealousy of the Lord" (4 Samuel 19:31), closely related to the vengeance for sins. The semantic load, as can be seen, is different here, but the active, offensive and not always positive nature of the phenomenon of jealousy is preserved in all these contexts. The Bible contains some information about family and domestic relations, characterized by a tendency to polygamy, but at the same time in some of its books the legal consequences of adultery are established (the death penalty for both men and women, Deut. 22:22), and the "law of jealousy" (Numbers 5:16-29) formulated on the basis, using modern terminology, of the presumption of guilt of the wife and the presumption of legality of doubt in her fidelity on the part of the husband. The proposed specific ritual is based on the probable punishment of a woman by infertility, whereas a man is prescribed to perform only cleansing actions. The involvement of a third person in this ritual – a priest – implies the presence of elements of mediation and deterrence of aggression, which is generally adequate to the accomplished or hypothetical act of treason.

For comparison, we can recall the Laws of Hammurabi (1750s BC), in the provisions of which jealousy was not justified as a circumstance affecting the nature and amount of responsibility in cases where its manifestations are realized in socially dangerous behavior, but was indirectly mentioned in connection with immoral actions (adultery). For example, § 129 of the Laws of Hammurabi ordered the execution of a man and a woman caught in adultery, which was considered an intimate relationship of a married woman with another man; § 131 allowed the removal of charges of adultery from a woman not caught in it, but suspected by her husband, after taking a cleansing oath; § 142 allowed divorce on the initiative of a woman, the spouse which humiliated her and cheated on her in marriage. From the above, it can be concluded that jealousy as an emotion realized in mutual claims or violence was recognized as a circumstance entailing certain legal consequences (in particular, an analogue of a marriage and family dispute or other conflict resolved by legal means, including the use of punishment). The bearer of this emotion was not allowed to carry out any interference directly, and the claims or violence themselves could entail responsibility on general grounds. The laws of Lycurgus (Ancient Sparta, VIII century BC), according to which manifestations of possessive feelings and jealousy towards women were prohibited, and extramarital affairs were encouraged, although the monogamous family as a whole was protected by the state. Relative tolerance to adultery may have contributed to the formation of a closed society, life in which, nevertheless, was subject to strict rules. Thus, accompanying the evolution of the human worldview, jealousy and its manifestations in socially dangerous behavior were not legally considered acceptable, although, naturally, they were reflected in reality.

In turn, in linguistic studies, the word "jealousy" occurs in several terminological meanings: diligence (zeal), rivalry (fear of someone else's success), envy or annoyance ^{[1, pp. 185-186]}. Jealousy becomes a negatively labeled state in the context of "distrust" or "painful doubt of someone's loyalty" ^{[2, p. 658]}. In classical literature of various eras, jealousy – "the monster with green eyes" (such a characteristic is given in W. Shakespeare's drama "Othello") – is the motive for the emergence of the strongest emotions and unpredictable plot twists.

The connection between jealousy and violence in domestic relations is obvious. Most legal monuments, starting from a certain period, contain norms on criminal liability for murder committed out of jealousy (for example, in Russian Pravda, a Court Book of 1497, a Court Book of 1550, it is impossible to find provisions on the limits of responsibility for such a crime, but in later sources it is established). It seems that the reason for this was the influence of religion on social relations, the intensity of which was such that family and household issues were subordinated to the church rather than the state. At the same time, religious dogmas and norms of canon law were built around the presumption of the husband's power over his wife, as a result of which the legal usefulness of a woman as a carrier of subjective rights turned out to be practically negligible. The monument of medieval Russian literature "Domostroy" ^[3], which became the code of public and household morality of that period, widely encouraged intra-family violence, against which manifestations of jealousy, up to murder, were recognized almost unpunished. At the same time, its provisions regulated domestic relations in a registered marriage, and manifestations of jealousy in other cases that led to murder or damage to health were qualified according to the general norms of the current criminal legislation. Monuments of Russian law of the XVII-XVIII centuries. (The Cathedral Code of 1649, the Military Article of 1715) contained norms on responsibility for manslaughter, "fornication", adultery, but all of the above was not considered in the context of jealousy. The low level of legal responsibility for violence in domestic relations contributed to the formation of possessive instincts, in the structure of which jealousy (on the part of the husband to the wife, of course) actually became the basis for satisfying pseudo-legal needs, without being endowed with socially dangerous characteristics.     

The criminal nature of violence, which was motivated by jealousy, was recognized by some sources of the criminal legislation of the Russian Empire and the RSFSR, although in different ways. Proceeding from the provisions of the Criminal and Correctional Punishments Code of 1845, scientists conclude that murder out of jealousy belonged to privileged structures ^{[4, p. 122]}. In paragraph "a" of Part 1 of Article 136 of the Criminal Code of the RSFSR of 1926, on the contrary, murder out of greed, jealousy or other base motives was considered qualified. It seems that the overestimation of the motive of jealousy in different historical periods was associated with a different attitude of society to its manifestations, and in the conditions of life of monarchical Russia it was more tolerant, whereas the ideological basis of the Soviet system assumed the denial of such tolerance. In a later period – in the Criminal Code of the RSFSR of 1960 and the current Criminal Code of the Russian Federation – the legislator maintained a generally neutral position regarding the nature of the motive of jealousy, apparently taking into account the relatively stable number of violent crimes committed in its presence. Such an approach seems inconsistent, and in the absence of a special regulatory act aimed at preventing violence in family and domestic relations, it is also harmful, since it indicates an unformed attitude to jealousy as an archaic emotional state that poses a potential danger and manifests itself in criminal violence.

The conducted brief historical review of social and legal concepts of jealousy does not give grounds to conclude that the current state of development of civilization has outlived a relatively tolerant attitude to violent crimes motivated by jealousy. Meanwhile, the lack of recognition of such motivation as having a specific social danger is erroneous. The destructive nature of jealousy as an emotional state is confirmed by the results of psychological research ^{[5, pp. 32-38]}; moreover, the probable pathology of the "jealous person", the presence of such perversions of consciousness and worldview, which potentially lead to intense aggression, realized in the commission of particularly serious crimes against human life and health, is also proven ^{[6, pp. 123-128]}. The victim of such crimes is often subjected to persecution and less dangerous violence, which is not qualified, as a rule, in accordance with criminal law norms.

Let's explain this with a few examples from judicial practice. By the verdict of the Serpukhov City Court of the Moscow region in case No. 1-375/2018, a local resident was sentenced to a long term of imprisonment under Part 2 of Article 111 of the Criminal Code of the Russian Federation for intentionally causing serious harm to his wife's health, committed with extreme cruelty. The convict was jealous of his wife, repeatedly used violence against her, threatened to kill her. The reason for jealousy was suspicion of adultery. In order to check them, the convict carried out covert surveillance of the victim, perlustration of her personal correspondence, and subsequently, during the scandal, cut off her hands with an axe with both hands. The verdict of the Moscow City Court in case No. 2-61/2015 under paragraph "a" of Part 2 of Article 105 of the Criminal Code convicted a man who, while intoxicated, became jealous of his wife to a neighbor, after which he inflicted multiple stab wounds on a neighbor, and stabbed his wife with another knife in the side, asking before that whether she wanted to she's cheating on him. The verdict of the Saratov Regional Court in case No. 2-8/2022 convicted a local resident who inflicted multiple injuries to a former cohabitant, with whom he stopped living together, but did not stop pursuing her. The deed was initially qualified under paragraph "d" of Part 2 of Article 105 of the Criminal Code, but the court passed a sentence under Part 1 of Article 105 of the Criminal Code, which allowed the defendant to be given a fairly lenient sentence (9.5 years in prison; for comparison, the term of imprisonment in the previous examples was 14 and 15 years, respectively). The examples given allow us to conclude that violence motivated by jealousy takes an intense and violent form, as a result of which the resistance of the victims is suppressed, and criminal behavior acquires an increased social danger. In all the mentioned criminal cases, the courts revealed insufficiently effective police activity, in particular, when working out information about problematic (dysfunctional) families and statements from victims regarding beatings and bullying by convicts. Identifying the motive of jealousy in itself does not have significant difficulties; as a rule, applicants in such cases are willing to contact and disclose such information. Unfortunately, the existing law enforcement stereotype regarding their potential readiness to reconcile with their spouse or cohabitant often prevents a timely and correct assessment of what they have done, and in some cases becomes a factor contributing to the commission of a more serious violent crime.      

In a few monographic studies, the problem field of which includes the analysis of the phenomenon of jealousy, the latter is revealed as a base motive ^{[7, pp. 148-151]}, a synonym for revenge ^{[8, pp. 7-8]} or the cause of disorganization of family relations ^{[9, pp. 3-5]}. The typology of murders, developed on the basis of their different motivations, takes into account jealousy in relation to the emotional saturation and tension of the pre-criminal situation ^{[10, p. 8]}. The thesis is quite interesting, by virtue of which jealousy is recognized as a stable incentive to satisfy the injured self-esteem caused by the real or imaginary rejection of the subject by a loved one ^{[11, p. 87]}. Jealousy as a strong emotion that stimulates a person to act has also received scientific understanding in the context of the immoral behavior of the victim, causing a state of affect ^{[12, pp. 92-94]}.

Well-known scientists have addressed the psychological and legal nature of the motive of jealousy. Thus, O. S. Kapinus considers it in comparison with other aspects of the motivation of murders ^{[13, pp. 31-50]}; Yu. M. Antonyan draws attention to the ambivalent nature of jealousy ^{[14, pp. 116-130]}; I.B. Stepanova reasonably concludes that jealousy plays a significant role in the motivational structure of crimes in the family and household sphere ^{[9, p. 3]}. Based on these judgments, it seems possible to propose the author's definition of jealousy as a motive for a violent crime: jealousy is a destructive emotional state by virtue of which the subject perceives himself to be unfairly rejected by a loved one and commits a violent crime against him in order to "compensate" for the really committed or fictitious unseemly acts of the victim. The motive of revenge, with which jealousy is sometimes identified, seems to be broader (the range of reasons for revenge, real or imaginary, is much wider). In addition, revenge is based on hatred and dislike, whereas jealousy arises with the initial presence of sympathy for the victim. In part, jealousy accompanies friendly or loving relationships; however, it is possible to talk about its acceptability only in conditions of non-criminal interaction between people.   

It is highly debatable that many authoritative domestic jurists did not see the obvious social danger of the motivation of criminal behavior tending to jealousy: for example, S. V. Borodin reasonably noted that the reason for jealousy is in the plane of the subject's personal life ^{[15, p. 32]}, B. S. Volkov recognized jealousy as a socially neutral motive, deprived of low maintenance ^{[16, p. 38]}. Modern researchers also mention the social neutrality of the motive of jealousy ^{[17, p. 145]}.

Nevertheless, the social neutrality of this motive seems unacceptable. In addition to the fact that its presence indicates defects in worldview and tolerance to violence, its manifestations are associated with extreme cruelty, which emphasizes not only the base nature of the criminal's motivation, but also its special social danger. Jealousy in connection with the state of affect caused by the immoral behavior of the victim may be recognized as a privileged circumstance, but only if the immorality of the behavior irrefutably follows from the characteristics of the pre-criminal situation (for example, one of the spouses finds the other at the moment of an intimate relationship with an outsider). In other circumstances, jealousy certainly has neither a privileged character nor social neutrality. Proceeding from this, the reservation made by the legislator in paragraph "a" of Part 1 of Article 136 of the Criminal Code of the RSFSR of 1926, which contained a reference to circumstances causing a state of passion, seems correct. It is obvious that most manifestations of the emotional state of jealousy are caused not by the immoral behavior of the victims, but by defects in the worldview of subjects who consider the private perception of sympathy acceptable and its defense through cruel violence permissible.

Based on the above, it seems possible to formulate the following conclusions regarding the public danger of jealousy as a motive for a crime:

- being a destructive emotional state, jealousy characterizes a segment of the worldview of a subject who has a tolerant attitude to the identification of personal sympathy and elements inherent in the right of ownership;

- aggression and violence against the object of attachment, the subject, endowed with a jealous attitude, considers an acceptable way of self-defense of rights that do not exist in objective reality, or an adequate response to imaginary or real tension in communication with the victim;

- violence in such cases is obviously not adequate to this tension, is intense and violent, leads to the death of the victim (victim) or other grave consequences.

Thus, the public danger of the motive of jealousy should be recognized as increased, and its underestimation by the legislator in this capacity is a gap that needs to be filled.

The formulated conclusions seem to serve as an argument in favor of refusing to maintain a socially neutral perception of jealousy and a possible change in the norms of the current legislation on criminal liability for crimes against the person in the direction of recognizing this motivation as base and characterizing a particularly dangerous motivation for criminal behavior, requiring fixing in the list of qualifying signs of murder, causing serious harm to health and other most dangerous crimes under Chapter 16 of the Criminal Code of the Russian Federation. As a recommendation for optimizing the preventive activities of the police in the field of preventing violent crimes against the person committed on the motive of jealousy, it seems possible to note the intensification of activities in the direction of identifying problem families and suppressing aggressive conflicts.