Provocation (legal)

See also: 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.^{[citation needed]}

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 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) 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.

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

see also

• Imperfect self-defense