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| Criminal defenses |
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| Part of the common law series |
| See also Criminal law and procedure |
| Insanity · Mental disorder |
| Diminished responsibility |
| Intoxication · Infancy |
| Automatism |
| Consent · Mistake |
| Duress · Necessity |
| Provocation · Self defense |
| False confession · Entrapment |
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| Portals: Law · Criminal justice |
- Also see: Provocation in English law.
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 jurisdictions such as the UK , Canada, 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 by "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.
Provocation, however, is not a defense available to the civil torts of assault or battery.
Examples of provocation
Provocation is generally the result of 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 victim 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.
- Witnessing significant harm to a close relative.
- 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 manslaughter. [1][2]
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. 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.
But, in Australia, Canada and the UK, 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].
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 know 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.
References
- ^ Steve Tomsen (1994) Hatred, Murder & Male Honour: Gay Homocides and the Homosexual Panic Defence, Criminology Australia, November 1994
- ^ Nathan Hodge (1998) Transgressive Sexualities and the Homosexual Advance, Alternative Law Journal, vol. 23(1)
