Provocation (legal)
Encyclopedia
In criminal law
, provocation is a possible defense
by excuse or exculpation
alleging a sudden or temporary loss of control (a permanent loss of control is in the realm of 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 of which the defendant is accused.
In some common law
, jurisdiction
s such as the UK
, Canada, and several Australia
n 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 by "unlawful act" and by criminal negligence
. In some states with Criminal Code
s, 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.
Provocation, however, is not a defense available to the civil torts of assault or battery.
Under the United States Sentencing Guidelines, "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."
. 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. 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.
Another controversial factor of this defence, 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". The controversy comes when it is asked "what is immediate". 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) till the husband is asleep. Shown in R v Ahluwalia 1992.
Provocation as a partial defence for murder came into spotlight in New Zealand
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
home. During his trial, Weatherston used provocation as a defence to murder and claimed it was manslaughter. He was found guilty of murder and sentenced to life imprisonment with a 17 years non-parole period. In response, the New Zealand Parliament introduced the Crimes (Provocation Repeal) Amendment Bill, which repealed Sections 169 and 170 of the Crimes Act 1961
and therefore abolishing the partial defence of provocation. The bill passed its third reading 116-5, with only ACT New Zealand opposing the bill, and became law effective 8 December 2009. Although the defence was removed 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
attempted unsuccessfully to run the partial defence of provocation.
In Victoria, Australia, based on the Victorian Law Reform Commission's Defences to Homicide: Final Report, the state government announced changes to the law of homicide in 2005, which are intended to eliminate the defense.
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, provocation is a possible defense
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
by excuse or exculpation
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
alleging a sudden or temporary loss of control (a permanent loss of control is in the realm of insanity
Insanity
Insanity, craziness or madness is a spectrum of behaviors characterized by certain abnormal mental or behavioral patterns. Insanity may manifest as violations of societal norms, including becoming a danger to themselves and others, though not all such acts are considered insanity...
) as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
or a conviction for a lesser charge. Provocation can be a relevant factor in a court's assessment of a defendant's mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
, intention, or state of mind, at the time of an act of which the defendant is accused.
In some common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s such as the UK
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, Canada, and several Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n states, the defense of provocation is only available against a charge of murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
and only acts to reduce the conviction to manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
. This is known as "voluntary manslaughter" which is considered more serious than "involuntary manslaughter", which comprises both manslaughter by "unlawful act" and by criminal negligence
Criminal negligence
In the criminal law, criminal negligence is one of the three general classes of mens rea element required to constitute a conventional as opposed to strict liability offense. It is defined as an act that is:-Concept:...
. In some states with Criminal Code
Criminal Code
A criminal code is a document which compiles all, or a significant amount of, a particular jurisdiction's criminal law...
s, such as the Australian states of Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
and Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
, provocation serves as a complete defense to the range of assault-based offenses. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the Model Penal Code
Model Penal Code
The Model Penal Code is a statutory text which was developed by the American Law Institute in 1962. The Chief Reporter on the project was Herbert Wechsler. The current form of the MPC was last updated in 1981. The purpose of the MPC was to stimulate and assist legislatures in making an effort to...
substitutes the broader standard of extreme emotional or mental distress for the comparatively narrower standard of provocation.
Provocation, however, is not a defense available to the civil torts of assault or battery.
Under the United States Sentencing Guidelines, "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."
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 culpabilityCulpability
Culpability descends from the Latin concept of fault . The concept of culpability is intimately tied up with notions of agency, freedom and free will...
. This is usually tested by reference to a reasonable person
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
: 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. 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.
Another controversial factor of this defence, 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". The controversy comes when it is asked "what is immediate". 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) till the husband is asleep. Shown in R v Ahluwalia 1992.
Provocation as a partial defence for murder came into spotlight in New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
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
Murder of Sophie Elliott
On 9 January 2008, 22-year-old Sophie Kate Elliott was stabbed to death by ex-boyfriend Clayton Robert Weatherston , in Dunedin, New Zealand...
in her Dunedin
Dunedin
Dunedin is the second-largest city in the South Island of New Zealand, and the principal city of the Otago Region. It is considered to be one of the four main urban centres of New Zealand for historic, cultural, and geographic reasons. Dunedin was the largest city by territorial land area until...
home. During his trial, Weatherston used provocation as a defence to murder and claimed it was manslaughter. He was found guilty of murder and sentenced to life imprisonment with a 17 years non-parole period. In response, the New Zealand Parliament introduced the Crimes (Provocation Repeal) Amendment Bill, which repealed Sections 169 and 170 of the Crimes Act 1961
Crimes Act 1961
The Crimes Act 1961 is an Act of the Parliament of New Zealand administered by the Ministry of Justice.-Amendments:The Homosexual Law Reform Act 1986 amended the Crimes Act, allowing for consensual homosexual relationships between men....
and therefore abolishing the partial defence of provocation. The bill passed its third reading 116-5, with only ACT New Zealand opposing the bill, and became law effective 8 December 2009. Although the defence was removed 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
Mike Antunovic
Mike Antunovic, is a New Zealand criminal defence lawyer. Antunovic is one of New Zealand's most experienced jury trial lawyers, and has appeared in many of New Zealand's most high profile criminal cases.-The Olivia Hope and Ben Smart Murder Mystery:...
attempted unsuccessfully to run the partial defence of provocation.
In Victoria, Australia, based on the Victorian Law Reform Commission's Defences to Homicide: Final Report, the state government announced changes to the law of homicide in 2005, which are intended to eliminate the defense.
External links
- The Reasonable Man Concept as Applied in the Partial Defence of Provocation
- 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:ISBN 9781877316371