The Ordinary Person in Provocation Law: Is the Objective Standard Objective?

Current Issues in Criminal Justice, Vol. 10, No. 3, pp. 53-73

18 Pages Posted: 22 Nov 2009 Last revised: 21 Jun 2018

See all articles by Peter Papathanasiou

Peter Papathanasiou

Australian National University (ANU) - Research School of Biology

Patricia L. Easteal

University of Canberra - School of Law and Justice

Date Written: 1999

Abstract

In this paper, an assessment is made of the concept of the ‘ordinary person’ in provocation through the use of a literature review and an empirical study. The construction of this legal benchmark appears to be affected by both the dominant social attitudes and personal experiences, although expert evidence is invaluable in providing an interpretative social schema by which to view a defendant’s actions. Though calls have been made to abolish provocation as a defence to a criminal charge, a new test is proposed that asks whether the reasonable person, possessing all the defendant’s characteristics and having had all the defendant’s experiences, could have done the criminal act the defendant did in the circumstances. This reformulated model of the ‘reasonable defendant’ should cause less confusion amongst either the jury or judiciary in its application, be more conducive to the admission of expert testimony, and its flexibility will contribute to the attainment of substantive equality before the law in a modern heterogeneous society.

Keywords: provocation, reasonable person

Suggested Citation

Papathanasiou, Peter and Easteal, Patricia L., The Ordinary Person in Provocation Law: Is the Objective Standard Objective? (1999). Current Issues in Criminal Justice, Vol. 10, No. 3, pp. 53-73. Available at SSRN: https://ssrn.com/abstract=1509731

Peter Papathanasiou

Australian National University (ANU) - Research School of Biology ( email )

Canberrra
Australia

Patricia L. Easteal (Contact Author)

University of Canberra - School of Law and Justice ( email )

Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
13
Abstract Views
810
PlumX Metrics