Fear-Based Provocation

By Buchhandler-Raphael, Michal | American University Law Review, January 1, 2018 | Go to article overview

Fear-Based Provocation


Buchhandler-Raphael, Michal, American University Law Review


INTRODUCTION

Psychological research has long established that anger may result in aggressive acts, sometimes even fatal ones.1 Accordingly, the provocation defense provides that murder charges may be mitigated to voluntary manslaughter charges if evidence establishes that the defendant acted under the influence of a "sudden heat of passion" resulting from "adequate provocation."2 While traditionally, the common law recognized only predefined categories as amounting to adequate provocation, most jurisdictions today have expanded the scope of their provocation defense, leaving the jury to determine whether the defendant acted in response to being adequately provoked by the deceased.3 The defendant's reaction is now measured against an objective standard of reasonableness, as the defense requires that a reasonable person in the defendant's situation would have been similarly provoked.4

Presumed to be the main emotion to trigger provocation, anger also plays a key role in the rationale that undergirds the contemporary understanding of the defense-that is the notion of loss of self-control. This notion rests on acknowledging that the defendant experienced a sudden intense passionate emotion that resulted in undermined capacity to control aggressive behavior.5 The defendant's impairment in his or her ability to exercise control may warrant mitigated charges.6

Theorizing provocation as an anger-based defense aligns with the responses of defendants who "lost it" or "snapped," "lashing out" in sudden rage. The paradigmatic example of provocation envisions an ordinary male perpetrator who suddenly becomes enraged at his unfaithful or departing wife, resulting in his loss of control and in killing her before having a chance to regain control.7 The image of provocation as male-centric, anger-based defense looms large in the public's imagination, thus shaping juries' decisions about whether defendants' responses warrant sympathy and compassion. This perception of anger-based provocation plays a critical role not only in the theoretical underpinning of the defense, but also in constructing its elements; in many jurisdictions, for provocation to be adequate, the defendant must have reacted aggressively immediately following a sudden triggering event, before any lapse of time allowing the opportunity to cool off and regain self-control.8

While anger-based provocation dominates the way that courts and commentators conceive of the defense, anger is not the only intense emotion that might lead to fatal aggression. Defendants may kill out of fear engendered by their perception of danger, after the deceased's behavior had led them to believe that they faced a physical threat to their lives.9

The circumstances underlying fear-based provocation cases vary, generally falling under two categories. The first encompasses defendants who fell prey to prolonged physical abuse, including not only those battered by their intimate partners and children battered by their parents, but also abused people outside the domestic violence context, such as those who were harassed by the deceased. Take, for example, a case where a seventeen-year-old youth shot and killed two brothers who had continuously harassed, stalked, and threatened him with a shotgun in the year preceding the shootings.10 The second category consists of defendants who acted in response to fear of physical harm threatened by the deceased in typical male-on-male confrontations. For example, some cases involve drug deals gone sour or disputes over money, resulting in defendants' shooting and killing the deceased.11

In these circumstances, defendants typically claim self-defense, arguing that they reasonably feared for their lives. Yet the underlying circumstances often cast doubt on whether these killings satisfy the elements of self-defense. To be acquitted of homicide on self-defense grounds, the defendant must not be the initial aggressor and must have reasonably believed that the use of deadly force was necessary to protect against the aggressor's imminent use of deadly force. …

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