Passion's progress: modern law reform and the provocation defense.

AuthorNourse, Victoria F.

How do we understand the death of loved ones at the hands of those with whom they are most intimate? In life as well as law, we say that murders of husbands, wives, and lovers are "crimes of passion." Thus we explain the event in a way that bridges the gap between love and murder as it separates them, that distances violence from our own homes as it bows to human frailty. This intellectual juggling act yields a law full of ambivalence toward those homicides it describes by the name of "passion." Doctrine condemns the killings, but with sympathy for the defendant's situation; theory excuses and justifies the killer, but only partially; verdicts do not acquit, but reduce the sentence from murder to manslaughter.' This ambivalence has led to legal reforms promising greater humanity and consistency, promises that have moved lawyers to reject the older talk of "heat of passion" in favor of the more modern "emotional distress." However well-intentioned, these reforms have led us to change our understandings of intimate homicide in ways that we might never have expected. Our most modem and enlightened legal ideal of "passion" reflects, and thus perpetuates, ideas about men, women, and their relationships that society long ago abandoned.

Based on a systematic study of fifteen years of passion murder cases,(2) this Article concludes that reform(3) challenges our conventional ideas of a "crime of passion" and, in the process, leads to a murder law that is both illiberal and often perverse. If life tells us that crimes of passion are the stuff of sordid affairs and bed side confrontations, reform tells us that the law's passion may be something quite different. A significant number of the reform cases I studied involve no sexual infidelity whatsoever, but only the desire of the killer's victim to leave a Miserable relationship.(4) Reform has permitted juries to return a manslaughter verdict(5) in cases where the defendant claims passion because the victim left,(6) moved the furniture out,(7) planned a divorce,(8) or sought a protective order.(9) Even infidelity has been transformed under reform's gaze into something quite different from the sexual betrayal we might expect -- it is the infidelity of a fiancee who danced with another,(10) of a girlfriend who decided to date someone else,(11) and of the divorcee found pursuing a new relationship months after the final decree.(12) In the end, reform has transformed passion from the classical adultery to the modern dating and moving and leaving. And because of that transformation, these killings, at least in reform states, may no longer carry the law's name of murder.(13)

Reform's understanding of the passion defense(14) reflects deeper roots in modern theories of criminal culpability. Staunchly defended by traditional legal scholarship, these theories center around the notion that defendants are less culpable when they lose "self-control."(15) This sounds plausible and humane, but leaves unanswered an important question: Which losses of self-control merit the law's compassion? By systematically surveying how courts have answered that question, this Article argues that adherence to the self-control rationale masks a different, more pernicious, tendency. The law in practice does something more than protect self-control. Courts and lawyers have not measured claims of passion by "quickened heartbeats" or "shallow breathing,"(16) but by judgments about the equities of relationships, judgments disguised -- and therefore rendered more powerful and resistant to change -- by a jurisprudence pretending to make no judgments at all.

Because reform's ideas about intimate loyalties do not lie on the surface, they have survived in the face of obvious conflicts with well-accepted reform movements. Elsewhere, reform has acknowledged, indeed encouraged, women's freedom to divorce or separate. Reform of the passion defense, however, has yielded precisely the opposite result, binding women to the emotional claims of husbands and boyfriends long ago divorced or rejected. Reform in other areas of the law has encouraged battered women to leave their victimizers. Reform of the passion defense, however, discourages such departures, allowing defendants to argue that a battered wife who leaves has, by that very departure, supplied a reason to treat the killing with some compassion.(17) In this upside-down world of gender relations, it should not be surprising to learn that the common law approach toward the provocation defense, deemed an antique by most legal scholars, provides greater protection for women than do purportedly liberal versions of the defense.

Reform not only breeds conflict where gender is concerned; it also breeds conflict within the criminal law itself.(18) Rarely, if ever, does the criminal law embrace defendants who kill in response to a lawful act(190 or trivial slights,(20) and yet passion's reform seems to permit defendants to argue that acts such as leaving or "dancing with another,(21) constitute a "reasonable" explanation meriting our compassion. Rarely, if ever, does the criminal law embrace defendants who are to blame for creating their own defense,(22) and yet some trial courts applying reform's passion defense have found mitigating stress in the defendants' own violent acts, even their own battering.(23) These conflicts have gone largely unnoticed by scholars.(24) Although students of the provocation defense have noted the odd case in which the defense generates absurd results, they have reserved their concern for the lawyer's unlikely hypothetical rather than the real-life lovers' quarrel.(25) Scholarship has focused on different questions, questions about the characteristics of those who kill in these situations.(26) In its focus on identity, this scholarship has made rather obvious normative conflicts within the criminal law all but impossible to see.

Reform's legacy affects both sexes, not one, and any effort to grapple with the defense's weaknesses must acknowledge the complexity of its gender effects. In the cases I have studied, men are by far the most frequent victimizers, and women the most frequent victims. But that does not mean that only women are killed; indeed, it is often the man helping the women leave -- the sheriff or the mover or the lover -- who dies. Reform often seems to tie women to relationships that they do not want, in effect, enforcing a rule of "emotional unity."(27) But reform exacts a price from male defendants as well, albeit one of agency rather than blood. To obtain the law's compassion, men must forsake a claim that they are acting as moral agents and, instead, play the role of the helpless female: dependent, victimized by inarticulate impulse, and utterly incapable of freely determining a proper course of action.(28) One need not celebrate female "states of injury"(29) to see that passion's reforms have imposed upon men and women a "veil of relationship" that neither may have deliberately chosen.(30)

I raise these issues in stark terms not to recommend abolition of the provocation defense but to advocate reconstruction -- reconstruction based on a new theory of the law's ambivalence toward some passions. In the end, we do not solve provocation's problems by giving up the law's compassion for sincere emotion," nor by endorsing an abolitionist "ethics of autonomy."(32) We must finally come to terms with the essential difficulties of the defense -- why the law partially excuses some, but not all, emotional defendants and defines some, but not all, passions as rational. In Part I, I present my empirical findings, focusing on the role of departure in the practice of the provocation defense. In Part II, I consider the conventional arguments for the defense, finding that each leaves us with the same question: Why are some emotions worthy of protection (jealous rages), while others are not (till-inspired greed)?(33) In this Part, I try to show how a defense committed to the idea that it protects the "choosing self" turns out to protect something quite different. In the face of repeated efforts to banish normative decisionmaking from the defense, liberal theorists have actually helped to entrench norms about relationships.(34) The intellectual move here is one I call the "personification" of the defense, a move that places all of the normative questions into the form of questions about the qualities and attributes of persons(35) and thus disguises both the essential normativity of the inquiry(36) and the fact that the Model Penal Code's concealed normative commitments are to relationships rather than persons.(37) In Part III, I explain that move and investigate the theoretical underpinnings of reform's approach, arguing that provocation's defenders and its critics are doomed to talk past each other. As long as reform's defenders start from the position that the freedom of individuals is measured in their distance from relationships, they will find little common ground with those who maintain that law must consider our relationships to each other.

Finally, in Part IV, I present a new, more limited, version of the defense that seeks to honor equality as well as autonomy. The passion defense should be retained as a partial excuse but only in the limited set of cases in which the defendant and the victim stand on an equal emotional and normative plane. When a man kills his wife's rapist, his emotional judgments(38) are inspired by a belief in a "wrong" that is no different from the law's own: Ex ante, there is no doubt that rape is wrong both for the defendant and the victim and that the defendant's "outrage" is "understandable" from this perspective. When a man kills his departing wife, claiming that her departure outraged him, this normative equality disappears. There is no reason to suspect that the victim would have agreed to a regime in which "leaving" was a wrong that the law would punish.(39) To embrace the defendant's...

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