Fear-Based Provocation

78 Pages Posted: 4 Oct 2017 Last revised: 14 Sep 2018

Date Written: March 23, 2018


Psychological research has long found that anger may lead to aggression, sometimes even fatal one. The provocation doctrine corresponds to this finding by providing that murder charges may be mitigated to voluntary manslaughter 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 defendant’s intense emotion of anger had resulted in loss of self-control, therefore he or she ought to be partially excused.

Case law demonstrates that defendants sometimes kill out of fear of serious physical violence threatened by the deceased. For example, victims of 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 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 typical the responses of defendants who acted quickly, immediately following a single and sudden triggering incident, before any lapse of time allowed them to regain control.

The article offers three major contributions to challenge existing view of provocation: first, it considers psychological research that had found that fear, similarly to anger, may also significantly interfere with individuals’ decision-making processes by disturbing rational judgement, therefore sometimes leading to lethal aggression. Second, drawing on this research, the article’s key argument is that provocation doctrine should be reconstructed to also include a fear-based prong. Third, recognizing fear-based provocation calls for rejecting the “anger-loss of control” paradigm that currently dominates judges and jurors’ perception of the defense. In its place, the article advocates an alternative framework that would focus on the fearful defendant’s fear of violence threatened by the victim 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.

Suggested Citation

Buchhandler-Raphael, Michal, Fear-Based Provocation (March 23, 2018). Washington & Lee Legal Studies Paper No. 2017-19; 67 American University Law Review, 1719 (2018); Washington & Lee Legal Studies Paper No. 2017-19. Available at SSRN: https://ssrn.com/abstract=3046728 or http://dx.doi.org/10.2139/ssrn.3046728

Michal Buchhandler-Raphael (Contact Author)

Washington and Lee University School of Law ( email )

Lexington, VA 24450
United States
(540) 458-8510 (Phone)

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