Provocation (legal)

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For the country-specific law, see provocation in English law.

In criminal law, provocation is a possible defense by excuse or exculpation alleging a total loss of control as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge. In some Common Law jurisdictions such as the UK 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. This is known as "voluntary manslaughter" which is considered more serious than "involuntary manslaughter", which comprises both manslaughter "unlawful act" and by criminal negligence. In some states with Criminal Codes, such as the Australian states of Queensland and Western Australia, provocation serves as a complete defense to the range of assault-based offenses. 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.

Examples of provocation

The laws of most states provide that provocation will comprise some conduct witnessed or experienced by the defendant. In some states, mere gestures, taunts or fighting words are insufficient. Circumstances that have traditionally given rise to a defense of provocation include:

• A battery or assault inflicted by the deceased on the defendant or a third party, but not with the degree of force or in circumstances that would give rise to a defense of self-defense — a particularly relevant issue in cases involving the "battered woman syndrome".
• Mutual combat (which may be more formal duelling) — not operative in some states where self-inflicted provocation may be excluded from the defense.
• Discovery of adulterous conduct by a spouse.
• Although not a traditional provocation circumstance, some states have laws that a non-violent homosexual advance constitutes sufficient provocation to reduce a charge of murder to manslaughterTemplate:Fact.

Controversy

Generally, the defense is 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. If a person is insufficiently socialized and responds violently to any lack of respect, society requires protection. This is usually tested by reference to a reasonable person, i.e. a universal standard to determine whether an ordinary person would have been provoked and, if so, would have done as the defendant did. Thus, if the majority view of social behavior would be that, when provoked, it would be acceptable to respond verbally and, if the provocation persists, then to walk away, that will set the threshold for the defense. But, in Australia, Canada and the U.K., the relationship between the defences of provocation and self-defense has become particularly contentious in cases where one partner or former partner kills the other. On the available evidence from court records, critics of the current laws have identified a gender bias so that men who kill their former wives or girlfriends for breaking off the relationship have found it easy to claim provocation when compared to women in abusive relationships who kill their abuser, and then find it difficult to use their history of abuse as self-defence (see battered woman syndrome). Phil Cleary has been the most publicly visible campaigner on this issue in Australia. Mr Cleary's sister was murdered by a former partner who then claimed provocation, serving less than four years in jail. [1] In 2005, based on the Victorian Law Reform Commission's Defences to Homicide: Final Report [2], the Victorian government announced changes to the law of homicide in that State, which are intended to redress this perceived imbalance. [3].