Provocation is a set of events that might be adequate to cause a reasonable person to lose self control, whereby a criminal act is less morally culpable than a premeditated act done out of pure malice (malice aforethought). It "affects the quality of the actor's state of mind as an indicator of moral blameworthiness". The provocation is said to "mitigate" the crime, and the crime is said to be committed in the heat of passion, under an irresistible urge incited by the provoking events, and without being entirely determined by reason. "'Malice aforethought' implies a mind under the sway of reason, whereas 'passion' whilst it does not imply a dethronement of reason, is the furor brevis, which renders a man deaf to the voice of reason so that, although the act was intentional to death, it was not the result of malignity of heart, but imputable to human infirmity. Passion and malice are, therefore, inconsistent motive powers, and hence an act which proceeds from the one, cannot also proceed from the other." (Hannah v. Commonwealth, Supreme Court of Virginia 1929) Establishing Provocation can reduce a murder charge to a voluntary manslaughter charge.
Provocation may be defined by statutory law, by common law, or some combination. It is a possible defense for the person provoked, or a possible criminal act by the one who caused the provocation. It may be a defense by excuse or exculpation alleging a sudden or temporary loss of control (a permanent loss of control is regarded as 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 which the defendant is accused of.
In common law, provocation is established by establishing events that would be "adequate" to create a heat of passion in a reasonable person, and by establishing that the heat of passion was created in the 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. Because of that, the need for a lesser offense was inspired. 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 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 lose traction and was replaced with the view that while those responses may not be ideal, that they were a normal human reaction resulting from a loss of self-control, and, as such, they deserved to be considered as a mitigating circumstance.
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 concept as an anachronism, arguing that it contradicts contemporary social norms where 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; if the predominant view of social behavior would be that, when provoked, it would be acceptable to respond verbally and, if the provocation persists, to walk away, that will set the threshold for the defense. Furor brevis or "heat of passion", is the term used in criminal law to describe the emotional state of mind following a provocation, in which acts are considered to be at least partially caused by loss of self-control, so the acts are not entirely governed by reason or expressed "[It's the heat of passion] which renders a man deaf to the voice of reason". In common law, "passion usually means rage, but it also includes fear or any violent and intense emotion sufficient to dethrone reason".
Another controversial factor of this defense, 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", with the controversy surrounding the definition of "sudden". 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, as shown in R v Ahluwalia 1992. This led to the enactment of a new defene of "loss of control" (see Dennis J. Baker, Glanville Williams Textbook of Criminal Law, (London: Sweet & Maxwell, 2012) at Chapter 22.) The new defense 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 defense 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 offense as allowing for sexual infidelity to count under the third prong of the new defense (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, available at SSRN: doi:10.2139/ssrn.2061558
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 defense 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 defense 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 defense 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 unsuccessfully attempted to use the partial defense of provocation.
In 2015, Canada reformed the provocation defense restricting its use. Article 232(2) of the Criminal Code states that provocation is: "Conduct of the victim that would constitute an indictable offense under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool." Prior to the amendment, the law required only that the provoking act be a "wrongful act or insult", not a serious indictable offence.
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, however it was replaced by a new defensive homicide law. The 2005 defensive homicide laws were subsequently repealed in 2014. Western Australia abolished the partial defence of provocation in 2008. The ACT and the Northern Territory amended the law in 2004 and 2006 respectively to exclude a non-violent sexual advance as a sufficient basis for a defence of provocation in itself; such conduct must be taken into account with other conduct of the deceased to determine whether the defence has been established. By contrast in New South Wales, the law of provocation was amended in 2014 to assert that a non-violent sexual advance to the accused does not constitute extreme provocation. It was also made clear in the amendments that the conduct of the deceased may constitute extreme provocation, even if the conduct did not occur immediately before the act causing death. This was done in order to provide protection for victims of long-term abuse, or "slow burn" situations. 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 to the defence of extreme provocation; the provocative conduct of the deceased must also have constituted a serious indictable offence, and the loss of self-control test must be measured by the objective test of the "ordinary person".
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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 since 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
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.
- Model Penal Codes Commentaries to §210.3 Manslaughter
- Criminal Law Cases and Materials, 7th ed 2012; John Kaplan, Robert Weisberg, Guyora Binder
- Hannah v. Commonwealth, 149 S.E.2d 419, 421 (Va. 1929)
- Crimes Act 1900 (NSW) s 23.
- Crimes Act 1900 (ACT) s 13.
- Criminal Code Act (NT) (NT) s 158.
- Victim's conduct (§5K2.10), U.S. Sentencing Guidelines, archived from the original on 2010-06-19
- "Provocation and self-defence in intimate partner and sexual advance homicides" (PDF). Briefing Paper No 5/2012. NSW Parliamentary Research Service. August 2012. Archived from the original (PDF) on 23 June 2014.
- Hannah v. Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421 (1929)
- "Guilty verdict in service station stabbing case". The Dominion Post. 6 May 2010. Retrieved 4 November 2011.
- http://antunoviclaw.co.nz/criminal-lawyers-about/imantunovic-criminal-lawyer/[permanent dead link]
- Branch, Legislative Services. "Consolidated federal laws of canada, Criminal Code". laws-lois.justice.gc.ca.
- Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas).
- Crimes Act 1958 (Vic) s 3B Provocation no longer a partial defence to murder.
- Criminal Law Amendment (Homicide) Act 2008 (WA).
- Fred Nile (5 March 2014). "Second Reading Speech, Crimes Amendment (Provocation) Bill 2014" (PDF). Parliamentary Debates (Hansard). NSW: Legislative Council.
- R v Turnbull (No 5)  NSWSC 439 (15 April 2016), Supreme Court (NSW, Australia); and
R v Turnbull (No 25)  NSWSC 831 (23 June 2016), Supreme Court (NSW, Australia).
- Masciantonio v The Queen  HCA 67, (1995) 183 CLR 58, High Court (Australia) per McHugh J.
- Green v R  HCA 50, (1997) 191 CLR 334, High Court (Australia)
- Stingel v R  HCA 61, (1990) 171CLR 312 (20 December 1990), High Court (Australia).
- compare with Singh v R  NSWSC 637 (7 June 2012), Supreme Court (NSW, Australia).
- Australia and New Zealand Journal of Criminology, Provocation in New South Wales: The need for abolition
- 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