Provocation (law)

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In law, provocation is when a person is considered to have committed a criminal act partly because of a preceding set of events that might cause a reasonable individual to lose self control. This makes them less morally culpable than if the act was premeditated (pre-planned) and done out of pure malice (malice aforethought). [1] [2] It "affects the quality of the actor's state of mind as an indicator of moral blameworthiness." [1]

Contents

Provocation is often a mitigating factor in sentencing. It rarely serves as a legal defense, meaning it does not stop the defendant from being guilty of the crime. It may however, lead to a lesser punishment. In some common law legal systems, provocation is a "partial defense" for murder charges, which can result in the offense being classified as the lesser offense of manslaughter, specifically voluntary manslaughter. [3]

Provocation is distinct from self-defense in that self-defense is a legal defense, and refers to a justifiable action to exclusively protect oneself from imminent violence.

Definition

If a crime is caused by provocation, it is said to be committed in the heat of passion, under an irresistible urge incited by the provoking events, and without being entirely determined by reason. [2] "'Malice aforethought' implies a mind under the sway of reason, whereas 'passion' whilst it does not imply a dethronement of reason, is the furor brevis , which renders a man deaf to the voice of reason so that, although the act was intentional to death, it was not the result of malignity of heart, but imputable to human infirmity. Passion and malice are, therefore, inconsistent motive powers, and hence an act which proceeds from the one, cannot also proceed from the other." [4] (Hannah v. Commonwealth, Supreme Court of Virginia 1929) Establishing Provocation can reduce a murder charge to a voluntary manslaughter charge. [2]

Provocation may be defined by statutory law, by common law, or some combination. It is a possible defense for the person provoked, or a possible criminal act by the one who caused the provocation. It may be a defense by excuse or exculpation alleging a sudden or temporary loss of control (a permanent loss of control is regarded as insanity) as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge. Provocation can be a relevant factor in a court's assessment of a defendant's mens rea , intention, or state of mind, at the time of an act which the defendant is accused of.

In common law, provocation is established by establishing events that would be "adequate" to create a heat of passion in a reasonable person, and by establishing that the heat of passion was created in the accused. [1]

History

The defense of provocation was first developed in English courts in the 16th and 17th centuries. During that period, a conviction of murder carried a mandatory death sentence. This inspired the need for a lesser offense. At that time, not only was it acceptable, but was socially required that a man respond with controlled violence if his honor or dignity were insulted or threatened. It was therefore considered understandable that sometimes the violence might be excessive and end with a killing. [5]

During the 19th century, as social norms began changing, the idea that it was desirable for dignified men to respond with violence when they were insulted or ridiculed began losing traction and was replaced with the view that while those responses may not be ideal, that they were a normal human reaction resulting from a loss of self-control, and, as such, they deserved to be considered as a mitigating circumstance. [5]

During the end of the 20th century and the beginning of the 21st century, the defense of provocation, and the situations in which it should apply, have led to significant controversies, with many condemning the concept as an anachronism, arguing that it contradicts contemporary social norms where people are expected to control their behavior, even when angry. [5]

Present day

Today, the use of provocation as a legal defense is generally controversial, because it appears to enable defendants to receive more lenient treatment because they allowed themselves to be provoked. Judging whether an individual should be held responsible for their actions depends on an assessment of their culpability. This is usually tested by reference to a reasonable person: that is, a universal standard to determine whether an ordinary person would have been provoked and, if so, would have done as the defendant did; if the predominant view of social behavior would be that, when provoked, it would be acceptable to respond verbally and, if the provocation persists, to walk away, that will set the threshold for the defense. Furor brevis or "heat of passion", is the term used in criminal law to describe the emotional state of mind following a provocation, in which acts are considered to be at least partially caused by loss of self-control, so the acts are not entirely governed by reason or expressed "[It's the heat of passion] which renders a man deaf to the voice of reason". [6] In common law, "passion usually means rage, but it also includes fear or any violent and intense emotion sufficient to dethrone reason". [1]

Another controversial factor of this defense, especially in UK law, is that the provoked must have carried out their act immediately after the provocation occurred, otherwise known as a "sudden loss of self control", with the controversy surrounding the definition of "sudden". This argument on the grounds of time still occurs and has caused many defendants, particularly women, to lose their cases on this ground, as they will often wait (in wife-battering cases) until the husband is asleep, as shown in R v Ahluwalia 1992. This led to the enactment of a new defense of "loss of control". [7] The new defense removed the "sudden" requirement, as it wanted to cover battered women who lose control over a long period. However, it will probably not succeed in achieving that aim. [7] The new loss of control defense found in ss. 54-55 Coroners and Justice Act 2009 also removed sexual infidelity as a qualifying form of provocation, but in a recent controversial decision by Lord Judge in R v Clinton [2012] 1 Cr App R 26 in the Court of Appeal, Lord Judge interpreted the new offense as allowing for sexual infidelity to count under the third prong of the new defense. [8] R v Clinton [2012] 1 Cr App R 26 has received heavy criticism from academics. [8]

As a partial defense for murder

In some common law jurisdictions such as the UK, Canada, and several Australian states, the defense of provocation is only available against a charge of murder and only acts to reduce the conviction to manslaughter. [3] [9] [10] This is known as "voluntary manslaughter", which is considered more serious than "involuntary manslaughter", and comprises both manslaughter by "unlawful act" and manslaughter by criminal negligence. In the United States, the Model Penal Code substitutes the broader standard of extreme emotional or mental distress for the comparatively narrower standard of provocation. Criminal law in the United States, however, falls mostly within the jurisdiction of the individual states, and not all states have adopted the Model Penal Code. Under the United States Sentencing Guidelines for federal courts, "If the victim's wrongful conduct contributed significantly to provoking the offense behavior, the court may reduce the sentence below the guideline range to reflect the nature and circumstances of the offense." [11]

Provocation as a partial defence for murder came into spotlight in New Zealand during 2009 following the trial of 33-year-old university tutor Clayton Weatherston, with calls for its abolition except during sentencing. On 9 January 2008, Weatherston stabbed to death university student and girlfriend Sophie Elliott in her Dunedin home. During his trial, Weatherston used provocation as a defense to murder and claimed it was manslaughter. He was found guilty of murder and sentenced to life imprisonment with a 17 years non-parole period. In response, the New Zealand Parliament introduced the Crimes (Provocation Repeal) Amendment Bill, which repealed Sections 169 and 170 of the Crimes Act 1961 and therefore abolishing the partial defense of provocation. The bill passed its third reading 116–5, with only ACT New Zealand opposing the bill, and became law effective 8 December 2009. Although the defense was removed, it could still be used for cases prior to 2009. In May 2010 Moliga Tatupu-Tinoa'i was convicted of murdering his wife at a service station in Wellington. [12] Mr Tatupu-Tinoa'i's lawyer Mike Antunovic unsuccessfully attempted to use the partial defense of provocation. [13]

In 2015, Canada reformed the provocation defense restricting its use. Article 232(2) of the Criminal Code states that provocation is: "Conduct of the victim that would constitute an indictable offense under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool." [14] Prior to the amendment, the law required only that the provoking act be a "wrongful act or insult", not a serious indictable offence.

In Australia, Tasmania became the first state to abolish the partial defence of provocation in case of murder which acted by converting what would otherwise have been murder into manslaughter. [15] The next state to abolish it was Victoria, in 2005, however it was replaced by a new defensive homicide law. The 2005 defensive homicide laws were subsequently repealed in 2014. [16] Western Australia abolished the partial defence of provocation in 2008. [17] The ACT and the Northern Territory amended the law in 2004 and 2006 respectively to exclude a non-violent sexual advance as a sufficient basis for a defence of provocation in itself; such conduct must be taken into account with other conduct of the deceased to determine whether the defence has been established. [9] [10] By contrast in New South Wales, the law of provocation was amended in 2014 to assert that a non-violent sexual advance to the accused does not constitute extreme provocation. [3] The new provocation law of New South Wales was amended to the defence of extreme provocation; the provocative conduct of the deceased must also have constituted a serious indictable offence, and the loss of self-control test must be measured by the objective test of the "ordinary person". [3] [18] It was also made clear in the amendments that the conduct of the deceased may constitute extreme provocation, even if the conduct did not occur immediately before the act causing death. [3] This was done in order to provide protection for victims of long-term abuse, or "slow burn" situations. [19] In Queensland the partial defence of provocation in section 304(1) of the Criminal Code was amended in 2011, in order to "reduce the scope of the defence being available to those who kill out of sexual possessiveness or jealousy". [5] South Australia abolished provocation in 2020. [20]

In cases of assault and battery

In the United States, provocation is rarely accepted as a complete defense, but state courts have ruled that it is still a mitigating factor in matters of assault and/or battery where the sentence can be reduced or the crime lowered to a lesser charge. [21] In extremely rare cases, adequate provocation has resulted in the defendant never being charged with a crime. In one famous example, prosecutors in California refused to charge astronaut Buzz Aldrin with assault after he punched conspiracy theorist Bart Sibrel in the face for aggressively confronting him and calling him "a coward, and a liar, and a thief."

In England and Wales, provocation is similarly considered a partial defense and only reduces the penalty. [22] Ironically, English law considers the act of intentionally provoking another person to be crime in and of itself under the charge of Fear or provocation of violence. [23]

Controversy

General concerns

The concept of provocation is controversial, and there are many debates related to it. Critics bring several arguments against it, such as: [5]

Selective use of the laws

Some people accept provocation as a valid legal concept, but express serious concerns about the context in which it is used. Data from Australia shows that the partial defense of provocation that converts murder into manslaughter has been used successfully primarily in two circumstances: sexual infidelity where a male kills his female partner or her lover; and non-violent homosexual advances. [5] [24] [25] [26]

Feminist groups and LGBT groups have been highly critical of this situation. They argue that this legitimizes or trivializes male violence against women; undermines campaigns that seek to stop violence against women; reinforces the view of women as men's property; and maintains and justifies homophobia and discrimination against gay people. [5] [27]

Objective vs subjective test

There has been controversy on whether the objective or the subjective standard should be used when deciding on whether the behavior of the victim has constituted sufficient provocation. The objective 'ordinary person' test has been criticised for ignoring characteristics such as ethnicity and culture which affect a person's capacity to lose self-control, [28] whereas the subjective standard that focuses on ones' personal and cultural background has been criticized for opening the door for mitigation in cases of honor killings, homophobic or racist violence and bringing in justifications for crimes that may be acceptable in the family and subculture of the accused but are rejected by wider society. [29] A compromise can be a combination of objective and subjective analysis, as was ruled in 2020 by the Supreme Court of Ireland (replacing what was considered to be a purely subjective test that was in existence since the 1970s). [29]

Related Research Articles

<span class="mw-page-title-main">Murder</span> Unlawful killing of a human with malice aforethought

Murder is the unlawful killing of another human without justification or valid excuse committed with the necessary intention as defined by the law in a specific jurisdiction. This state of mind may, depending upon the jurisdiction, distinguish murder from other forms of unlawful homicide, such as manslaughter. Manslaughter is killing committed in the absence of malice, such as in the case of voluntary manslaughter brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.

The gay panic defense or homosexual advance defence is a strategy of legal defense, which refers to a situation in which a heterosexual individual charged with a violent crime against a homosexual individual claims they lost control and reacted violently because of an unwanted sexual advance that was made upon them. A defendant will use available legal defenses against assault and murder, with the aim of seeking an acquittal, a mitigated sentence, or a conviction of a lesser offense. A defendant may allege to have found the same-sex sexual advances so offensive or frightening that they were provoked into reacting, were acting in self-defense, were of diminished capacity, or were temporarily insane, and that this circumstance is exculpatory or mitigating.

A crime of passion, in popular usage, refers to a violent crime, especially homicide, in which the perpetrator commits the act against someone because of sudden strong impulse such as anger or jealousy rather than as a premeditated crime. A high level of social and legal acceptance of crimes of passion has been historically associated with France from the 19th century to the 1970s, and until recently with Latin America.

In criminal law, diminished responsibility is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental functions were "diminished" or impaired.

Battery is a criminal offense involving unlawful physical contact, distinct from assault, which is the act of creating apprehension of such contact.

Battered woman syndrome (BWS) is a pattern of signs and symptoms displayed by a woman who has suffered persistent intimate partner violence—psychological, physical, or sexual—from her male partner. It is classified in the ICD-9 as battered person syndrome, but is not in the DSM-5. It may be diagnosed as a subcategory of post-traumatic stress disorder (PTSD). Victims may exhibit a range of behaviors, including self-isolation, suicidal thoughts, and substance abuse, and signs of physical injury or illness, such as bruises, broken bones, or chronic fatigue.

Voluntary manslaughter is the killing of a human being in which the offender acted during the heat of passion, under circumstances that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot reasonably control their emotions. Voluntary manslaughter is one of two main types of manslaughter, the other being involuntary manslaughter.

<span class="mw-page-title-main">Homicide Act 1957</span> United Kingdom legislation

The Homicide Act 1957 is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice, reforming the partial defence of provocation, and by introducing the partial defences of diminished responsibility and suicide pact. It restricted the use of the death penalty for murder.

Self-defence is a defence permitting reasonable force to be used to defend one's self or another. This defence arises from both common law and the Criminal Law Act 1967. Self-defence is a justification defence rather than excuse.

In the criminal law of Australia, self-defence is a legal defence to a charge of causing injury or death in defence of the person or, to a limited extent, property, or a partial defence to murder if the degree of force used was excessive.

Murder is an offence under the common law legal system of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to unlawfully cause either death or serious injury. The element of intentionality was originally termed malice aforethought, although it required neither malice nor premeditation. Baker states that many killings done with a high degree of subjective recklessness were treated as murder from the 12th century right through until the 1974 decision in DPP v Hyam.

In English law, provocation was a mitigatory defence to murder which had taken many guises over generations many of which had been strongly disapproved and modified. In closing decades, in widely upheld form, it amounted to proving a reasonable total loss of control as a response to another's objectively provocative conduct sufficient to convert what would otherwise have been murder into manslaughter. It only applied to murder. It was abolished on 4 October 2010 by section 56(1) of the Coroners and Justice Act 2009, but thereby replaced by the superseding—and more precisely worded—loss of control defence.

In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.

Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.

In the field of criminal law, there are a variety of conditions that will tend to negate elements of a crime, known as defenses. The label may be apt in jurisdictions where the accused may be assigned some burden before a tribunal. However, in many jurisdictions, the entire burden to prove a crime is on the prosecution, which also must prove the absence of these defenses, where implicated. In other words, in many jurisdictions the absence of these so-called defenses is treated as an element of the crime. So-called defenses may provide partial or total refuge from punishment.

Fault, as a legal term, refers to legal blameworthiness and responsibility in each area of law. It refers to both the actus reus and the mental state of the defendant. The basic principle is that a defendant should be able to contemplate the harm that his actions may cause, and therefore should aim to avoid such actions. Different forms of liability employ different notions of fault, in some there is no need to prove fault, but the absence of it.

People v. Berry is a voluntary manslaughter case that is widely taught in American law schools for the appellate court's unusual interpretation of heat of passion doctrine. Although the defendant had time to "cool down" between his wife's verbal admission of infidelity and the killing, the California Supreme Court held that the provocation in this case was adequate to reduce a murder charge to manslaughter. The lower court had relied on the traditional definition of "adequate provocation" in its jury instructions. The California Supreme Court reversed Berry's murder conviction, while affirming Berry's conviction for assault using deadly force.

<span class="mw-page-title-main">Criminal law of the United States</span>

The criminal law of the United States is a manifold system of laws and practices that connects crimes and consequences. In comparison, civil law addresses non-criminal disputes. The system varies considerably by jurisdiction, but conforms to the US Constitution. Generally there are two systems of criminal law to which a person maybe subject; the most frequent is state criminal law, and the other is federal law.

English law contains homicide offences – those acts involving the death of another person. For a crime to be considered homicide, it must take place after the victim's legally recognised birth, and before their legal death. There is also the usually uncontroversial requirement that the victim be under the "King's peace". The death must be causally linked to the actions of the defendant. Since the abolition of the year and a day rule, there is no maximum time period between any act being committed and the victim's death, so long as the former caused the latter.

Manslaughter is a crime in the United States. Definitions can vary among jurisdictions, but manslaughter is invariably the act of causing the death of another person in a manner less culpable than murder. Three types of unlawful killings constitute manslaughter. First, there is voluntary manslaughter which is an intentional homicide committed in "sudden heat of passion" as the result of adequate provocation. Second, there is the form of involuntary manslaughter which is an unintentional homicide that was committed in a criminally negligent manner. Finally, there is the form of involuntary manslaughter which is an unintentional homicide that occurred during the commission or attempted commission of an unlawful act which does not amount to a felony.

References

  1. 1 2 3 4 Model Penal Codes Commentaries to §210.3 Manslaughter
  2. 1 2 3 Criminal Law Cases and Materials, 7th ed 2012; John Kaplan, Robert Weisberg, Guyora Binder
  3. 1 2 3 4 5 Crimes Act 1900 (NSW) s 23.
  4. ↑ Hannah v. Commonwealth, 149 S.E.2d 419, 421 (Va. 1929)
  5. 1 2 3 4 5 6 7 "Provocation and self-defence in intimate partner and sexual advance homicides" (PDF). Briefing Paper No 5/2012. NSW Parliamentary Research Service. August 2012. Archived from the original (PDF) on 23 June 2014.
  6. ↑ Hannah v. Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421 (1929)
  7. 1 2 Dennis J. Baker, Glanville Williams Textbook of Criminal Law, (London: Sweet & Maxwell, 2012) at Chapter 22 https://archive.org/details/textbookofcrimin0000bake_p0z6/page/n1/mode/1up
  8. 1 2 Baker & Zhao, "Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity", Journal of Criminal Law, Vol. 76, pp. 254, 2012, available at SSRN: doi : 10.2139/ssrn.2061558
  9. 1 2 Crimes Act 1900 (ACT) s 13.
  10. 1 2 Criminal Code Act (NT) (NT) s 158.
  11. ↑ Victim's conduct (§5K2.10), U.S. Sentencing Guidelines, archived from the original on 2010-06-19
  12. ↑ "Guilty verdict in service station stabbing case". The Dominion Post . 6 May 2010. Archived from the original on 31 August 2011. Retrieved 4 November 2011.
  13. ↑ Man killed wife in act of passion, court told May 6, 2010. Otago Daily News Archived September 19, 2024, at Ghost Archive
  14. ↑ Branch, Legislative Services (27 August 2021). "Consolidated federal laws of canada, Criminal Code". laws-lois.justice.gc.ca. Archived from the original on 23 October 2018. Retrieved 21 August 2015.
  15. ↑ Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas).
  16. ↑ Crimes Act 1958 (Vic) s 3B Provocation no longer a partial defence to murder.
  17. ↑ Criminal Law Amendment (Homicide) Act 2008 (WA).
  18. ↑ R v Turnbull (No 5) [2016] NSWSC 439 (15 April 2016), Supreme Court (NSW,Australia); and
    R v Turnbull (No 25) [2016] NSWSC 831 (23 June 2016), Supreme Court (NSW,Australia).
  19. ↑ Fred Nile (5 March 2014). "Second Reading Speech, Crimes Amendment (Provocation) Bill 2014" (PDF). Parliamentary Debates (Hansard) . NSW: Legislative Council. Archived 5 March 2017 at the Wayback Machine
  20. ↑ "South Australia abolishes the defence of provocation". 4 December 2020. Archived from the original on 5 November 2021. Retrieved 5 November 2021.
  21. ↑ "KALILAH ROMIKA STEVENSON v. STATE of Maryland" (PDF). Court of Appeals of Maryland case and opinions. 2008-06-30. Archived (PDF) from the original on 2018-10-18. Retrieved 2018-10-18.
  22. ↑ "Assault | Defence against assault allegations". Nellany & Co. Solicitors | Lawyers | North Ayrshire. Archived from the original on 8 August 2020. Retrieved 11 May 2020. Provocation is only a partial defence where the accused accepts that they committed the offence but that they did so only because the victim provoked it. It operates as a mitigation that reduces the severity of the penalty.
  23. ↑ "Public Order Act 1986 - Section 4". legislation.gov.uk. Archived from the original on 13 April 2020. Retrieved 11 May 2020.
  24. ↑ Green v R [1997] HCA 50 , (1997) 191 CLR 334, High Court (Australia)
  25. ↑ Stingel v R [1990] HCA 61 , (1990) 171 CLR 312(20 December 1990), High Court (Australia).
  26. ↑ compare with Singh v R [2012] NSWSC 637 (7 June 2012), Supreme Court (NSW,Australia).
  27. ↑ Australia and New Zealand Journal of Criminology, Provocation in New South Wales: The need for abolition Archived 2015-10-16 at the Wayback Machine
  28. ↑ Masciantonio v The Queen [1995] HCA 67 , (1995) 183 CLR 58, High Court (Australia) per McHugh J.
  29. 1 2 "The Provocation Defence in Ireland – Criminal Justice Notes". 30 July 2020. Archived from the original on 2021-05-01. Retrieved 2021-11-05.

See also

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