Abstract

http://ssrn.com/abstract=1649674
 


 



Reasonable Provocation and Self-Defense: Recognizing the Distinction Between Act Reasonableness and Emotion Reasonableness


Cynthia Lee


George Washington University Law School

2009

CRIMINAL LAW CONVERSATIONS, Paul H. Robinson, Stephen Garvey, Kimberly Ferzan, eds., Oxford University Press, 2009
GWU Law School Public Law Research Paper No. 450
GWU Legal Studies Research Paper No. 450

Abstract:     
This brief essay, written for the Criminal Law Conversations project, argues that the doctrines of provocation and self-defense should recognize a distinction between act reasonableness and emotion (or belief) reasonableness. The essay proceeds in three parts. In Part I, I examine the doctrine of provocation. I start by explaining what I mean by “act reasonableness” (a finding that a reasonable person in the defendant’s shoes would have responded or acted as the defendant did) and “emotion reasonableness” (a finding that the defendant’s emotional outrage or passion was reasonable). I note that only two of the fifty states require act reasonableness while the majority of states require only emotion reasonableness. I explore possible reasons for the reluctance to require act reasonableness. I then offer a different way to understand act reasonableness. Under my suggested reform, the reasonableness of the provoked defendant’s action would depend on the type of force and degree of force he used in relation to the triggering provocation. In other words, act reasonableness would entail a kind of proportionality review. Proportionality, however, would not mean that the provoked defendant would have to respond with force equal to the force used by the provoker. The defendant’s act would just need to be seen by the jury as commensurate with the wrong inflicted by the provoking party.

In Part II, I examine the doctrine of self-defense. A similar distinction between emotion reasonableness and act reasonableness exists in the self-defense arena. Even though act reasonableness is implied in self-defense doctrine’s proportionality requirement, jury instructions on self-defense tend to focus only on emotion (or belief) reasonableness. Jurors are instructed to find that the defendant reasonably believed (or reasonably feared) deadly force was necessary to counter an imminent threat of death or grievous bodily injury. Jurors are not instructed to separately find that the defendant’s act of shooting or stabbing or beating the victim was reasonable. I argue that self-defense doctrine should make explicit that which is implicit. Jurors should be instructed to find not only that the defendant reasonably believed deadly force was necessary to counter an imminent threat of death or grievous bodily injury, but also that the defendant’s acts were reasonably proportionate to the threatened harm.

In Part III, I conclude that my proposal for reform of the doctrine of self-defense is not a radical reform. My proposal with regard to self-defense merely makes explicit that which is implicit. In contrast, my proposal for reform of provocation doctrine constitutes a substantial departure from current practice in most jurisdictions. I argue that this departure is worthwhile because the provoked killer has taken a human life and therefore deserves heightened scrutiny of the reasonableness of his actions.

Keywords: Reasonable Provocation, Self-Defense, Act Reasonableness, Emotion Reasonableness

JEL Classification: K14, K42

Accepted Paper Series


Download This Paper

Date posted: July 28, 2010  

Suggested Citation

Lee, Cynthia, Reasonable Provocation and Self-Defense: Recognizing the Distinction Between Act Reasonableness and Emotion Reasonableness (2009). "Reasonable Provocation and Self-Defense: Recognizing the Disctincton between Act Reasonableness and Emotion Reasonableness," in Criminal Law Conversations, p. 427-448. Edited by Paul H. Robinson, Stephen Garvey and Kimberly Ferzan. New York : Oxford University Press, 2009.; CRIMINAL LAW CONVERSATIONS, Paul H. Robinson, Stephen Garvey, Kimberly Ferzan, eds., Oxford University Press, 2009 ; GWU Law School Public Law Research Paper No. 450; GWU Legal Studies Research Paper No. 450. Available at SSRN: http://ssrn.com/abstract=1649674

Contact Information

Cynthia Lee (Contact Author)
George Washington University Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
(202) 994-4768 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 971
Downloads: 140
Download Rank: 121,197

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.218 seconds