In common 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).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."Model Penal Codes Commentaries to §210.3 Manslaughter
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.
Provocation rarely serves as a complete 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 defence for murder charges, which can result in the offense being classified as the lesser offense of manslaughter, specifically voluntary manslaughter... s 158.
Provocation is distinct from self-defense in that self-defense refers to a justifiable action to exclusively protect oneself from imminent violence.
Definition Provocation may be defined by statutory law, by common law, or some combination. 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. According to the Supreme Court of Virginia in Hannah v. Commonwealth, 1929:"'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."Hannah v. Commonwealth, 149 S.E.2d 419, 421 (Va. 1929)
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.
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.
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.
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".Hannah v. Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421 (1929) In common law, "passion usually means rage, but it also includes fear or any violent and intense emotion sufficient to dethrone reason".
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 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 gay people.Australia and New Zealand Journal of Criminology, Provocation in New South Wales: The need for abolition
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 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. 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).
In the United States 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."
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 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 the United Kingdom In English law, provocation was a mitigatory defence which applied only to murder. In closing decades, 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 was abolished on 4 October 2010The Coroners and Justice Act 2009 (Commencement No. 4, Transitional and Saving Provisions) Order 2010 (S.I. 2010/816 (C. 56)), article 6(b); and see here by section 56(1) of the Coroners and Justice Act 2009, replaced by the superseding—and more precisely worded—loss of control defence.The Coroners_and_Justice_Act_2009_(Commencement_No._4,_Transitional_and_Saving_Provisions)_Order_2010 (S.I. 2010/816 (C. 56)), article 5(g)(i) Ironically, English law considers the act of intentionally provoking another person to criminal action to be a crime in and of itself under the charge of Fear or provocation of violence.
Until 1957, the common law which governed this offense had established some non-exhaustive categories or examples which constituted provocation, including:
a gross insult followed by assault witnessing an attack on a relative or friend witnessing an Englishman being unlawfully deprived of his liberty a husband discovering his wife in the act of adultery; and possibly a father discovering someone committing sodomy on his son (R v Fisher (1837)"Park J. said that the adultery rule could possibly be extended to the situation where the victim had committed an unnatural act with the son of the offender [...] however, Park J. insisted that such an extension could only be contemplated where the offender had actually witnessed the incident." https://eprints.utas.edu.au/1045/4/Bradfield_ch3.pdf)Per Holmes v DPP (1946) AC 588)
Under section 3 of the Homicide Act 1957, provocation was defined more narrowly as two questions to be decided by the jury: whether "the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control," and whether "the provocation was enough to make a reasonable man do as he did".
The Act provided that provocation could be by anything done or said without it having to be an illegal act and the provoker and the deceased could be third parties.See Davies (1975) QB 691 If the accused was provoked, who provoked him was irrelevant.
This section of the Act was superseded by sections 54 and 55 of the Coroners and Justice Act 2009 when they came into force on 4 October 2010.
The factual test