67 Am. U. L. Rev. 1719 (2018).

* Visiting Assistant Professor of Law, Washington and Lee School of Law. S.J.D., University of Virginia, 2010; LL.M., University of Virginia; LL.M., Hebrew University; L.L.B., Hebrew University. I am grateful to Joshuah Dressler, Mark Drumbl, and Aya Gruber for their extremely valuable feedback and thoughtful comments on this draft. I also thank all participants of Washington and Lee’s Faculty Workshop on December 5, 2017 for their helpful comments. I also express my gratitude to the American University Law Review editors, and especially Elizabeth Mapelli for thorough and thoughtful edits.

Psychological research has long established that anger may result in aggressive acts, sometimes even fatal ones. 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.” The modern rationale underlying provocation doctrine rests on the idea that a defendant’s intense anger had resulted in loss of self-control, and therefore, he or she ought to be partially excused.
Case law demonstrates, however, that defendants sometimes kill out of fear of physical violence threatened by the deceased. For example, persons who have endured long-term physical abuse by the deceased may kill their abusers out of fear of future violence—even if at the moment of the killing, the deceased was not posing an imminent threat to the defendant’s life. In circumstances where defendants are unable to satisfy the requirements of self-defense, provocation might be the only viable defense that would mitigate a murder conviction to voluntary manslaughter. Yet, existing provocation doctrine is unfit to capture the distinct features characterizing the reaction of fearful defendants. Commonly perceived as an anger-centric defense, the defense’s elements mostly accommodate the typical responses of defendants who acted quickly, immediately following a single and sudden triggering incident, and before any lapse of time allowed them to regain control.
This Article offers three major contributions to challenge existing view of provocation: first, it considers psychological research that found that fear, similarly to anger, may also significantly interfere with individuals’ decision making processes by disturbing rational judgment, therefore sometimes leading to lethal aggression. Second, drawing on this research, this Article argues that provocation doctrine should be reconstructed to also include a fear-based prong. Third, recognizing fear-based provocation calls for rejecting the loss of control paradigm that currently dominates judges’ and jurors’ perception of the defense. In its place, this Article advocates focusing on the fearful defendant’s fear of violence threatened by the deceased that caused a significant impairment in the defendant’s thought processes, resulting in obscured judgment and reasoning. The reconstructed defense would also include an objective component, under which, the defendant would have to prove that a person of ordinary disposition would also experience such emotion and respond rashly without exercising reason and judgment.


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