Provocation

Example

A woman walks into her bedroom late at night and catches her husband in bed with another woman. Overcome by rage, the woman shoots her husband and her lover, killing them both. The woman could use the defense of provocation to argue that she was provoked into committing the crime. Since a reasonable person could be provoked into losing their self-control when witnessing their spouse’s adultery, provocation could serve as a successful defense to a murder charge. However, the woman would likely be convicted of voluntary manslaughter. Provocation is a partial defense, not a complete defense, so it would reduce the woman’s legal culpability for her crimes rather than eliminate it.

Case Examples

• Reasonable Provocation: Reasonable provocation can be a defense to murder, but it is an objective standard rather than a subjective standard. The District Court of Massachusetts defined reasonable provocation as the “kind of provocation that would inflame a reasonable ordinary and law abiding [ sic ] man to the point where he would be capable of killing another person”. Anderson v. Butler, No. CIV. A. 91-10482-Z, 1993 WL 350172, at *2 (D. Mass. Aug. 23, 1993), aff'd, 23 F.3d 593 (1st Cir. 1994).
• Provocation must be clearly defined in jury instructions: Courts have found that an adequate definition of provocation “must either consist of a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.” Dunckhurst v. Deeds, 859 F.2d 110, 112 (9th Cir. 1988).