Author:Rosenberg, Roni


The doctrine of provocation as a mitigating factor in criminal culpability has been the subject of considerable study in various countries. (1) Under this doctrine, criminal liability for intentional killing is reduced from murder to manslaughter where the act was a reaction to provocation. (2) This raises a series of essential jurisprudential and ethical questions: Is it truly appropriate to reduce the criminal liability of one who killed intentionally simply because the killing was a result of provocation? And if it is appropriate to reduce criminal liability, what ethical rationale supports this? What is the significance of this position vis-avis the value of sanctity of life? Finally, what is the ethical distinction between killing due to provocation and killing due to despair or unrequited love?

In the United States, criminal jurisprudence generally requires both that the killer committed the act while in a state of emotional turmoil due to unexpected provocation and that any reasonable person would have been provoked in such a situation in order to support a provocation defense. (3) That is, this defense is based upon a two-prong test, including both subjective and objective components. (4) The subjective requirement is that the provocation did, in fact, impair the defendant's ability to think rationally and resulted in a loss of self-control, such that the killing was performed with no thought as to consequences. (5) The objective inquiry considers whether a reasonable person would have experienced such a loss of self-control under those circumstances. This latter question, whether most people would have acted as the defendant did under the same circumstances, is not operative because it is clear that the answer will always be in the negative; rather, the question is whether the provocation was outrageous enough that a reasonable person's judgement would be so affected. That is, even if a reasonable person would not kill in such a situation but might react with some degree of violence, it is possible to at least understand the behavior of the defendant who did kill. (6)

Taking this one step further, in many states in the United States, a man (7) who killed his wife upon discovering that she had been unfaithful to him can rely upon the provocation defense so long as he can demonstrate that sudden discovery of the infidelity affected his subjective judgement. (8) That is, under United States criminal jurisprudence, a situation in which a woman has been unfaithful to her husband satisfies the objective element of something that would provoke a reasonable person to kill his or her spouse. This conclusion has been subject to sharp criticism from many scholars who claim, inter alia, that the lessening of criminal liability in the case of killing an unfaithful spouse stems from misunderstanding the rationale behind the provocation defense. (9) Other scholars argue that reducing criminal liability in such a situation is inconsistent with the understanding that a woman is not her husband's property. (10)

This essay proposes a different rationale for the doctrine of provocation, which negates the reliance on the provocation defense in the case of an unfaithful spouse. The proposed rationale is neither excuse, which focuses on reduced guilt due to the defendant's loss of self-control, nor justification, in that the victim was partly responsible for his or her own death. Rather, the rationale rests upon an understanding of why murder is prohibited and an examination of the protected values at the core of the offense of murder.

While the intuitive assumption is that criminalizing murder seeks to protect only the value of life itself, (11) I maintain that there are, in fact, three distinct values being protected: physical human life, the right of human beings not to be treated in a humiliating and belittling manner, and autonomy of society at large to live with a feeling of security, free of fear. I claim that killing due to provocation does not infringe upon all of these protected values, and for that reason reduced criminal liability is justified. However, in the case of murder due to infidelity, at least two of those values are threatened, and thus no reduction in criminal liability is warranted. I also maintain that the unique nature of this rationale paves the way to reworking the entire doctrine of provocation, which is so deeply embedded in criminal jurisprudence.

Part I describes the historical development of the doctrine of provocation in accepted jurisprudence and the bounds of this doctrine in England and the United States. Part II presents possible rationales supporting this doctrine and their relationships to the legal systems in question. The discussion will include critiques of the various rationales. Part III surveys legislation and case law of various states regarding the killing a spouse who was discovered to be unfaithful and the role of the provocation defense in such cases. This part includes a discussion of the positions of Victoria Nourse and Susan Rozelle, who oppose accepting a claim of provocation in cases of adultery. In Part IV, I will propose a new rational for the doctrine of provocation and explore potential practical jurisprudential implications. I will conclude that the new rationale is ultimately inconsistent with a reduction in criminal liability for a man who has killed his unfaithful wife.

  1. The Provocation Doctrine in English and American Jurisprudence

    1. Development of the Doctrine of Provocation

      The doctrine of provocation mandates that one who kills due to provocation is entitled to a reduction in criminal liability from murder to manslaughter, so long as the provocation resulted in a loss of self-control on the part of the killer. (12) The provocation defense came to be accepted in English jurisprudence in the seventeenth century. (13) In order to be entitled to this defense, a defendant had to prove two main elements: (1) The defendant killed the victim "in hot blood" and not when calm. A person who killed another "in cold blood" was not entitled to reduction in criminal responsibility even if the killing was a reaction to prior provocation by the victim. (2) The killing was a reaction to serious provocation. (14)

      The law designated four categories of provocation: serious insult, witnessing an assault on a friend or relative, witnessing a British citizen's freedom being taken unlawfully and witnessing one's wife being unfaithful with another man. (15) In each of these cases, the behavior of the victim was considered an affront to human dignity, and therefore a severe reaction was appropriate. To protect one's dignity, a person was expected to demonstrate courage by reacting physically and with rage to that infringement. The notion that a person whose dignity was compromised should react courageously was rooted in Aristotelian ethical thinking. (16) Nonetheless, a person who killed in the context of one of these scenarios was not completely exonerated; rather, the liability was partially reduced because the killing was not proportionate to the harm. (17) Anyone who killed and claimed provocation in a situation outside of these categories was not entitled to any reduction and could be convicted of murder. (18)

      At this time, the provocation defense was considered a partial justification. (19) Although the defendant's action did not completely negate his criminal liability, it was considered less serious than murder. In other words, the value of life was an important protected value, but jurisprudence also recognized the value of human dignity. As a result, a person who killed in order to protect human dignity would only be convicted of murder in exceptional cases.

      In the eighteenth century, a different attitude arose with regard to the rationale of provocation. That is, the reasoning behind reducing criminal liability from murder to manslaughter was no longer because the act of killing was considered less severe, but because the provocation induced a loss of self-control in the party who was provoked. (20) Under this analysis, provocation creates a situation where it is difficult for a person to act according to logical considerations that would guide him in the absence of the provocation. (21) As a result, the decision-making ability is impaired. Thus, the partial defense due to provocation is understood in terms of a partial excuse. The act of killing is not less serious; rather, the defendant bears less guilt. Consequently, a killer who is not legally competent is fully excused, while one who acts under the influence of provocation is partially excused due to his loss of self-control. (22)

      Despite this shift in approach, English jurisprudence continued to stick with precise categories of provocation, but the thrust of the claim was now different. Rather than the four categories constituting infringements upon human dignity, these categories became evidence that the defendant's self-control had been affected. (23) Both legal scholars and judges realized, however, that a legal fiction was involved, in that it was possible for a person to suffer loss of self-control in situations that do not fall within these categories. This realization led to yet another change in the doctrine of provocation. It was now recognized that a person's ability to think clearly could be impaired even by minor provocation, but in such cases it was not appropriate to reduce a defendant's criminal liability. That is, in situations involving minor provocation, a person was expected to control himself or suffer the consequences of his actions. (24)

      Under this approach, the four categories were no longer relevant. Consequently, an objective test was adopted. A defendant was entitled to a provocation defense if a reasonable man would have lost control as a result of the provocation in question. (25) However, despite this shift in what constitutes provocation, there remained an...

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