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When can killing a sexual partner or a former sexual partner qualify as mere "voluntary manslaughter" rather than murder under American law? Some of the comments to my honor killing post led me to want to elaborate further on this.

1. Most states � though not the several states that have adopted the Model Penal Code "extreme mental or emotional disturbance" formulation � specify that this sort of killing is voluntary manslaughter only if it's in the "heat of passion." But while some states limit this to situations where the killer has just immediately caught the victim (either the killer's sexual partner or the person with whom the partner is cheating) in the act, other states take (or recently have taken) a different view.

No need to witness adulterous act: Thus, for instance, Commonwealth v. Schnopps, 417 N.E.2d 1213 (Mass. 1981), holds that a spouse's killing of a spouse can be voluntary manslaughter when it immediately follows the victim's oral admission of adultery. Anderson v. State, 507 So. 2d 580 (Ala. Ct. Crim. App. 1987), overruled by Knight v. State, 907 So. 2d 470 (Ala. Ct. Crim. App. 2005), held that a spouse's killing of a spouse can be voluntary manslaughter when the killer "visualized [the wife] standing nude at the foot of [another man]'s bed" � based on the wife's refusing to accompany him home after a family visit to the other man's mobile home � and then went home, got his shotgun, drove to a store to buy shotgun shells, and later went back to the other man's home and shot the wife and the other man.

Time delay between confession of adultery and killing: Likewise, People v. Berry, 556 P. 2d 777 (Cal. 1975), concluded that a delay of 20 hours between the confession of adultery (and a desire to leave the marriage) and the killing didn't preclude a finding of manslaughter, at least when the victim had engaged in "a long course of provocatory conduct."

2. As best I can tell, most states don't limit the defense to adultery, but also allow it when the killer and the victim aren't married. Goforth v. State, 523 S.E.2d (Ga. 1999). This may be sensible, but I mention it to rebut the suggestion that the breaking of a marriage vow is somehow uniquely serious and thus specially justifies the doctrine.

3. Most troubling of all, there are quite a few cases in which a voluntary manslaughter theory was found legally warranted simply because a sexual partner had left the relationship, without any evidence of cheating. See, e.g., State v. Little, 462 A.2d 117 (N.H. 1983); People v. Guevara, 521 N.Y.S.2d 292 (App. Div. 1987). Fortunately, many states would not allow the theory in such cases, but some do.

It's true that the killing has to be done in the "heat of passion," and the ostensible theory is that the crime is in some measure more understandable and more forgivable because of its emotional basis, not that the crime is justified as a matter of honor. Still, my sense is that much of people's sympathy with the killers has to do with the fact that they were dishonored, and not just distressed or angered for reasons unrelated to their sense of their own honor. And in any event, regardless of the rationale, the law does make killing of an errant spouse into something less than murder -- not the same as the killing of a daughter for her dishonoring the family name, but not very far from that, either.

What's more, until the 1970s, this very same state of Georgia sometimes allowed spouses to kill their spouses when necessary to stop or prevent an act of adultery with no criminal consequences at all -- such killings were considered entirely justifiable, and not just mitigated from murder to manslaughter. See Scroggs v. State, 93 S.E.2d 583 (Ga. App. 1956). Even in the 1975 case that rejected this rule, one judge praised the rule and would have retained it. From 1915 to 1925, Texas courts took the same view, though apparently limited to husbands killing their wives. See Cook v. State, 180 S.W. 254 (Tex. Crim. App. 1915).

And until the 1970s, Georgia, Texas, and two other states expressly allowed husbands to kill their wives' lovers. (Some of the states extended this privilege to wives as well, and some didn't have a "heat of passion" requirement.) One of the cases elaborating on such a statute, State v. Greenlee, 269 P. 331 (N.M. 1928), specifically argued that the law "recognizes the ungovernable passion which possesses a man when immediately confronted with his wife's dishonor." Plus it is generally believed that juries have often acquitted the killers in such situations -- including fathers who killed their daughters' lovers, precisely on "honor" grounds -- even independently of the law. To quote another Georgia case (from 1911, quoting an earlier case from 1860), "What American jury has ever convicted a man for slaying the seducer of his wife or daughter?" That has likely changed in considerable measure since 1911, but my guess is that it remained largely true at least until recent decades.

And that's just the legal system's toleration (partial or complete) of such killings. As a matter of practice, many murders and even more assaults in America each year stem from adultery, perceived adultery, or even just a desire for a divorce. (Volokh)