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In law, provocation is when a person is considered to have committed a
criminal act In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...
partly because of a preceding set of events that might cause a reasonable individual to lose
self control Self-control, an aspect of inhibitory control, is the ability to regulate one's emotions, thoughts, and behavior in the face of temptations and impulses. As an executive function, it is a cognitive process that is necessary for regulating one' ...
. This makes them less morally culpable than if the act was premeditated (pre-planned) and done out of pure malice (
malice aforethought Malice aforethought is the "premeditation" or "predetermination" (with malice) required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravated murder in a few. Insofar as the term is still in use, ...
).Criminal Law Cases and Materials, 7th ed 2012; John Kaplan, Robert Weisberg, Guyora Binder It "affects the quality of the actor's state of mind as an indicator of moral
blameworthiness In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily has ...
."Model Penal Codes Commentaries to §210.3 Manslaughter Provocation is often a
mitigating factor In criminal law, a mitigating factor, also known as an extenuating circumstance, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sente ...
in sentencing. It rarely serves as a
legal defense In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense (or defence) in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a s ...
, meaning it does not stop the defendant from being
guilty Guilty or The Guilty may refer to: * Guilt (emotion), an experience that occurs when a person believes they have violated a moral standard Law *Culpability, the degree to which an agent can be held responsible for action or inaction *Guilt (law) ...
of the crime. It may however, lead to a lesser punishment. In some
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
legal systems, provocation is a "
partial defense In legal systems based on common law, a partial defence is a Criminal defenses, defence that does not completely absolve the defendant of guilt.
" for
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
charges, which can result in the offense being classified as the lesser offense of
manslaughter 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 cen ...
, specifically
voluntary manslaughter 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 ...
. Provocation is distinct from
self-defense Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in ...
in that self-defense is a legal defense, and refers to a justifiable action to 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. "'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 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 ...
'', 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." (Hannah v. Commonwealth, Supreme Court of Virginia 1929) Establishing Provocation can reduce a murder charge to a voluntary manslaughter charge. Provocation may be defined by
statutory law Statutory law or statute law is written law passed by a body of legislature. This is opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, state legi ...
, by
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, or some combination. It is a possible
defense Defense or defence may refer to: Tactical, martial, and political acts or groups * Defense (military), forces primarily intended for warfare * Civil defense, the organizing of civilians to deal with emergencies or enemy attacks * Defense industr ...
for the person provoked, or a possible
criminal act In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...
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 Insanity, madness, lunacy, and craziness are behaviors performed by certain abnormal mental or behavioral patterns. Insanity can be manifest as violations of societal norms, including a person or persons becoming a danger to themselves or to ...
) 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 In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'', 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.


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 Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that ...
. Because of that, the need for a lesser offense was inspired. At that time, not only was it seen as acceptable, but it 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. During the 19th century, as social norms started to change, the idea that it was desirable for dignified men to respond with violence when they were insulted or ridiculed started to lose 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. 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.


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 In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily ha ...
. This is usually tested by reference to a
reasonable person In law, a reasonable person, reasonable man, or the man on the Clapham omnibus, is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions. Strictly according to the fiction, it is ...
: 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 Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
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 Self-control, an aspect of inhibitory control, is the ability to regulate one's emotions, thoughts, and behavior in the face of temptations and impulses. As an executive function, it is a cognitive process that is necessary for regulating one's b ...
, so the acts are not entirely governed by reason or expressed " t's the heat of passionwhich renders a man deaf to the voice of reason". In
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, "passion usually means rage, but it also includes fear or any violent and intense emotion sufficient to dethrone reason". 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 i
R v Ahluwalia
1992. This led to the enactment of a new defense of "loss of control" (see Dennis J. Baker, Glanville Williams Textbook of Criminal Law, (London: Sweet & Maxwell, 2012) at Chapter 22.) The new defense removed the "sudden" requirement, as it wanted to cover battered women who lose control over a long period, but, as Baker Ibid points out, it will probably not succeed in achieving that aim. 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
012 012 may refer to: * Tyrrell 012, a Formula One racing car * The dialing code for Pretoria Pretoria () is South Africa's administrative capital, serving as the seat of the executive branch of government, and as the host to all foreign embassie ...
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 (see Baker & Zhao 2012). R v Clinton
012 012 may refer to: * Tyrrell 012, a Formula One racing car * The dialing code for Pretoria Pretoria () is South Africa's administrative capital, serving as the seat of the executive branch of government, and as the host to all foreign embassie ...
1 Cr App R 26 has received heavy criticism from academics, see 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:


As a partial defense for murder

In some
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
s such as the UK,
Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
, and several
Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
n states, the defense of provocation is only available against a charge of
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
and only acts to reduce the conviction to
manslaughter 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 cen ...
... s 158. 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 criminal law, criminal negligence is a surrogate state of mind required to constitute a ''conventional'' (as opposed to ''strictly liable'') offense. It is not, strictly speaking, a (Law Latin for "guilty mind") because it refers to an ob ...
. In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, the
Model Penal Code The Model Penal Code (MPC) is a model act designed to stimulate and assist U.S. state legislatures to update and standardize the penal law of the United States.MPC (Foreword). The MPC was a project of the American Law Institute (ALI), and was pu ...
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 Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
of the individual states, and not all states have adopted the Model Penal Code. Under the
United States Sentencing Guidelines United may refer to: Places * United, Pennsylvania, an unincorporated community * United, West Virginia, an unincorporated community Arts and entertainment Films * ''United'' (2003 film), a Norwegian film * ''United'' (2011 film), a BBC Two f ...
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." Provocation as a partial defence for murder came into spotlight in
New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...
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 Dunedin ( ; mi, Ōtepoti) is the second-largest city in the South Island of New Zealand (after Christchurch), and the principal city of the Otago region. Its name comes from , the Scottish Gaelic name for Edinburgh, the capital of Scotland. Th ...
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 Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes for ...
with a 17 years non-parole period. In response, the New Zealand Parliament introduced th
Crimes (Provocation Repeal) Amendment Bill
which repealed Sections 169 and 170 of the
Crimes Act 1961 The Crimes Act 1961 is an act of New Zealand Parliament that forms a leading part of the criminal law in New Zealand. It repeals the Crimes Act 1908, itself a successor of the Criminal Code Act 1893. Most crimes in New Zealand are created by ...
and therefore abolishing the partial defense of provocation. The bill passed its third reading 116–5, with only
ACT New Zealand ACT New Zealand, known simply as ACT (), is a right-wing, classical-liberal political party in New Zealand. According to former party leader Rodney Hide, ACT's values are "individual freedom, personal responsibility, doing the best for our natur ...
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. Mr Tatupu-Tinoa'i's lawyer Mike Antunovic unsuccessfully attempted to use the partial defense of provocation. In 2015,
Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
reformed the provocation defense restricting its use. Article 232(2) of the
Criminal Code A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...
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." 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 In legal systems based on common law, a partial defence is a defence that does not completely absolve the defendant of guilt.A
cla ...
of provocation in case of murder which acted by converting what would otherwise have been murder into manslaughter. 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. Western Australia abolished the partial defence of provocation in 2008. 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. 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. 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". 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. This was done in order to provide protection for victims of long-term abuse, or "slow burn" situations. 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". South Australia abolished provocation in 2020.


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. 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 Buzz Aldrin (; born Edwin Eugene Aldrin Jr.; January 20, 1930) is an American former astronaut, engineer and fighter pilot. He made three spacewalks as pilot of the 1966 Gemini 12 mission. As the Lunar Module ''Eagle'' pilot on the 1969 A ...
with assault after he punched
conspiracy theorist A conspiracy theory is an explanation for an event or situation that invokes a conspiracy by sinister and powerful groups, often political in motivation, when other explanations are more probable.Additional sources: * * * * The term has a nega ...
Bart Sibrel Bart Winfield Sibrel (born ) is an American conspiracy theorist who has written, produced, and directed works in support of the false belief that the Apollo Moon landings between 1969 and 1972 were staged by NASA under the control of the CIA ...
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. 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.


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: *people in contemporary society are expected to control their behavior, even when angry, and to not act on any impulse they may have *provocation creates a culture of
blaming the victim Victim blaming occurs when the victim of a crime or any wrongful act is held entirely or partially at fault for the harm that befell them. There is historical and current prejudice against the victims of domestic violence and sex crimes, such as ...
*what is considered provocation is subjective *provocation laws are very difficult to enforce since, in cases involving murder, the victim is dead and cannot present their version of facts


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..compare with . 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 gays.


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, per McHugh J. 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 killing An honor killing (American English), honour killing (Commonwealth English), or shame killing is the murder of an individual, either an outsider or a member of a family, by someone seeking to protect what they see as the dignity and honor of t ...
s,
homophobic Homophobia encompasses a range of negative attitudes and feelings toward homosexuality or people who are identified or perceived as being lesbian, gay or bisexual. It has been defined as contempt, prejudice, aversion, hatred or antipathy, m ...
or
racist Racism is the belief that groups of humans possess different behavioral traits corresponding to inherited attributes and can be divided based on the superiority of one race over another. It may also mean prejudice, discrimination, or antagonism ...
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. 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).


References


External links

* Reid Griffith Fontaine
''Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification''
University of Michigan Journal of Law Reform, 2008. * Reid Griffith Fontaine
''The Wrongfulness of Wrongly Interpreting Wrongfulness: Provocation Interpretational Bias and Heat of Passion Homicide''
New Criminal Law Review *New Zealand Law Commission: ''The Partial Defence of Provocation'': Wellington: New Zealand Law Commission: 2007:


See also

*
Fighting words Fighting words are written or spoken words intended to incite hatred or violence from their target. Specific definitions, freedoms, and limitations of fighting words vary by jurisdiction. The term ''fighting words'' is also used in a general sens ...
*
Gay panic defense The gay panic defense or homosexual advance defence is a legal strategy in which a defendant claims to have acted in a state of violent, temporary insanity, committing assault or murder, because of unwanted same-sex sexual advances, usually bet ...
*
Imperfect self-defense Imperfect self-defense is a common law doctrine recognized by some jurisdictions whereby a defendant may mitigate punishment or sentencing imposed for a crime involving the use of deadly force by claiming, as a partial affirmative defense, t ...
* Self control theory in crime * *
Manslaughter in English law 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'' (Latin for "guilty mind") or by reason of a partial defence. In England and Wales, a comm ...
{{DEFAULTSORT:Provocation (Legal) Criminal defenses Criminal law