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In criminal law, provocation may be either or both a statutory or common law possible defense or an offense. Provocation may be a 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", and comprises both manslaughter by "unlawful act" and manslaughter by criminal negligence. 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."
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. As such, the need for a lesser offense arose. At that time, not only was it seen as acceptable, but it was socially required that a man respond with controlled violence if his honor or dignity were insulted or threatened. It was therefore considered as understandable that sometimes the violence might be excessive and end with a killing.
During the 19th century, as social norms started to change, the idea that it was desirable for dignified men to respond with violence when they were insulted or ridiculed started to weaken, and to be replaced with the view that while such responses may not be ideal, they were nevertheless a normal human reaction resulting from loss of self-control, and, as such, they deserved to be considered mitigating circumstances.
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 whole concept as an anachronism, and arguing that it contradicts contemporary social norms that people are expected to control their behavior, even when angry.
Today, the 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. 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) until the husband is asleep. Shown in R v Ahluwalia 1992. This led to the enactment of a new defence of "loss of control" (see Dennis J. Baker, Glanville Williams Textbook of Criminal Law, (London: Sweet & Maxwell, 2012) at Chapter 22.) The new defence removed the "sudden" requirement, as it wanted to cover battered women who lose control over a long period, but as Baker ibid, points out, it will probably not succeed in achieving that aim. The new loss of control defence found in ss. 54-55 Coroners and Justice Act 2009 also removed sexual infidelity as a qualifying form of provocation, but in a recent controversial decision by Lord Judge in R v Clinton  1 Cr App R 26 in the Court of Appeal, Lord Judge interpreted the new offence as allowing for sexual infidelity to count under the third prong of the new defence (see Baker & Zhao 2012). R v Clinton  1 Cr App R 26 has received heavy criticism from academics, see Baker & Zhao, "Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity," Journal of Criminal Law, Vol. 76, pp. 254, 2012.
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, it could still 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 Australia, Tasmania became the first state to abolish the partial defence of provocation in case of murder which acted by converting what would otherwise have been murder into manslaughter. The next state to abolish it was Victoria, in 2005; followed by Western Australia in 2008. ACT and Northern Territory have amended the laws to exclude non-violent homosexual sexual advances, in 2004 and 2006, respectively. In Queensland the partial defence of provocation in section 304(1) of the Criminal Code was amended in 2011, in order to "reduce the scope of the defence being available to those who kill out of sexual possessiveness or jealousy". In 2014, New South Wales law on provocation was amended, that the provocative conduct of the deceased must also have constituted a serious indictable offence.
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 when the victim is dead and cannot present their version of facts
- the 'ordinary person' test has been criticised for ignoring characteristics such as ethnicity and culture which affect a person's capacity to lose self-control
There are, however, several counter-arguments to be made:
- It could be argued that contemporary society's expectation of citizen's always controlling their behavior even when angry is an artificial social construct, and runs counter to biological human nature.
- The removal of provocation as an acceptable defense, especially in cases of assault, has created a society where vicious verbal abuse and bullying is perceived as acceptable and even legally sanctioned, despite research that shows these can cause lasting psychological harm.
- While victim blaming is a genuine problem, there are individuals who do exploit the modern legal system's fixation on physical contact as the crime. Often this is done by intentionally baiting a target into attacking with personal insults and threatening body language (such as blocking someone's path or route of escape), all the while carefully avoiding touching the target. When the target actually strikes them, even if no or minimal physical harm is inflicted, the provoker immediately feigns victimhood with law enforcement so the target will be arrested.
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.
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 gays.
- Victim's conduct (§5K2.10), U.S. Sentencing Guidelines
- "Guilty verdict in service station stabbing case". The Dominion Post. 6 May 2010. Retrieved 4 November 2011.
- "Crimes Act 1900 (NSW) s 23 on Austlii". http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s23.html. Retrieved 8 August 2014.
- Masciantonio v The Queen (1995) 183 CLR 58;  HCA 67 (McHugh J) http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1995/67.html?stem=0&synonyms=0&query=masciantonio
- http://webcache.googleusercontent.com/search?q=cache:y0MfG_GCNSMJ:www.parliament.nsw.gov.au/Prod/parlment/publications.nsf/0/F2BA1BFEED2D87EECA257A4800001BD7/$File/briefing%2520paper.provocation%2520and%2520self-defence.pdf+provocation+in+new+south+wales&hl=ro&gl=ro#33; see also Green v R (1997) 191 CLR 334 AustLII
- 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 978-1-877316-37-1