At The Mercy of the Jury: An Argument for the Provocation Defense
By Gina Robinson, Staff Writer
In the opening scenes of one episode of Scandal, Olivia Pope is called to defend a man who killed his wife’s rapist when he witnessed the encounter.[1] At that point in the show, the audience unites in sympathy and demands along with Pope that the courts show leniency because the man killed in the heat of passion while defending his wife. As the show progresses, however, Pope discovers that the alleged rapist was actually the wife’s lover, and the husband knew of the affair. The audience’s sympathy is quickly exchanged for cries of condemnation for the husband’s heinous crime. It is at this point in the show that the murky line between first degree murder and voluntary manslaughter emerges. Whereas first degree murder requires willful, deliberate, and premeditated action, voluntary manslaughter applies to killings committed in the heat of passion brought on by adequate provocation. The question of whether the husband in Scandal and others like him are entitled to the provocation defense is the subject of heated debate.
Voluntary manslaughter, also known as the provocation defense, is deeply rooted in the common law. Traditionally, it applied only in four circumstances: (1) mutual combat, (2) unjust arrest, (3) assault and battery, and (4) adultery. It has since developed in a majority of United States jurisdictions to encompass any situation in which the actor kills as a result of adequate provocation. Whether the provocation is adequate is usually judged by the standard of reasonable person.
Despite its modern day adaptions, the doctrine of voluntary manslaughter has received much criticism for being anti-woman. Feminists assert many arguments against it including the doctrine’s chauvinistic history and its propensity to show leniency toward men while failing to provide women with the same protection.[2] In response to these claims, however, there exists a pressing need to retain the defense for the sake of deserving defendants and in order to allow the jury to perform its proper function in the American legal system.
There is little doubt about the anti-feminist history of voluntary manslaughter. In one of the most-referenced cases involving the provocation defense, an eighteenth-century court declared adultery “the highest invasion of property.”[3] At common law, the doctrine reflected a patriarchal vision of society in which women were viewed as property. The modern voluntary manslaughter doctrine, however, contains no express bias. Instead, it allows a jury to determine what constitutes adequate provocation to trigger the defense. The doctrine has also been adapted to better allow women to employ it. Rather than looking for a single culminating incident, courts often allow women to use the defense by pointing to a history of provocation, for example, in cases of battered wives killing their spouses.[4]
Further, the purpose of the defense is to allow for human frailty[5] by permitting juries to mitigate sentences in situations where people murdered while overcome with emotion. A case such as Director of Public Prosecutions v. Camplin offers an example of a defendant deserving of the defense.[6] In this case, a 15-year-old boy killed a middle-aged man after being raped and mocked by him. In such circumstances, it is hard to justify imposing the harshest possible sentence on the boy when he killed while overcome with rage that he was raped. Though provocation has been asserted as a defense in cases in which men killed as a result of infidelity, more sympathetic defendants seem to necessitate its continuance despite these cases.
Finally, whether or not the defense is successful should be a question left to the jury. Just because the provocation defense is asserted does not mean that it will successfully mitigate a defendant’s sentence. Instead, a jury is left to determine whether the alleged provocation would be enough to cause the reasonable man to have an “excusable loss of self-control.”[7] Some argue that leaving this determination to the jury allows they jury’s gender bias into the courtroom.[8] This argument, however, ignores the fact that a jury’s potential bias cannot be removed except for in the process of voir dire, or jury selection. By abolishing the defense entirely, the court would effectively be denying the defendant his right to be wholly judged by his peers, a central part of the American legal system.
Like any legal doctrine, voluntary manslaughter has its shortcomings, one of which is that it has been successfully asserted in horrible cases of domestic violence. The benefits of this doctrine, however, make it necessary, especially in a legal system that already seems to promote overcrowded prisons. Society simply does not hold a husband who murders his wife’s rapist to the same standards for sentencing as a man who carefully plans and executes a murder in cold-blood. Voluntary manslaughter reflects this distinction in culpability while still ensuring both men are punished for their crimes.
[1] “All Roads Lead to Fitz.” Scandal. ABC. 08 Nov. 2012. Television.
[2] Aya Gruber, A Provocative Defense, 103 Calif. L. Rev. 273, 292-301 (2014).
[3] Regina v. Mawgridge, 84 Eng. Rep. 1107, 1115 (1707).
[4] Thomas Crofts and Arlie Loughnan, Provocation: The Good, The Bad And The Ugly. 37 Criminal Law Journal 23 (2013).
[5] Maher v. People, 10 Mich. 212, 217 (1863).
[6] Director of Public Prosecutions v. Camplin, 2 All Eng. Rep. 168 (1978).
[7] Joshua Dressler, Why Keep The Provocation Defense?: Some Reflections On A Difficult Subject, 86 Minn. L. Rev. 959, 974 (2002).
[8] Emily L. Miller, (Wo)Manslaughter: Voluntary Manslaughter, Gender, And The Model Penal Code, 50 Emory L.J. 665, 669 (2001).
