Loss of Self-Control, Dual-Process Theories and Provocation

61 Pages Posted: 12 Mar 2019

Date Written: March 5, 2019


Contemporary understanding of the provocation defense views the loss of self-control theory as the cornerstone of this partial excuse. In considering whether to reduce murder charges to voluntary manslaughter, juries and judges rely on this theory to determine if the defendant experienced such intense emotional arousal that resulted in losing self-control, and if a reasonable person would have also likely lost self-control in similar circumstances.

The article questions this conventional wisdom by examining the various flaws embedded in provocation’s loss of self-control theory. It argues that the theory is both over-and-under inclusive. It is over-inclusive because it provides a basis for mitigation in cases where leniency is normatively unwarranted given policy considerations. It is also under-inclusive because it only accommodates the typical reactions of angry defendants who manifest sudden impulsivity, yet it fails to help defendants who visibly appear calm and composed, because their emotional arousal was triggered by a host of other emotions beyond anger, mostly fear, desperation and hopelessness.

This article turns to psychological research on dual-process models for crafting an alternative theory underlying the provocation defense. Drawing on these models’ notion of diminished rationality, it contends that provoked killers’ reactions are caused by substantial impairment in reasoning and judgement. Acknowledging both the promises and the pitfalls of this alternate theory, the article continues by advancing two arguments; first, it posits that the concept of diminished rationality is better suited than loss of self-control to support provocation’s doctrinal framework. Second, it points to intrinsic limitations embedded in reliance on this theory, which is unable to account for provocation’s necessary normative dimension. Therefore, the theory must be supplemented with a policy-based component that would assist juries in determining the circumstances that make provocation adequate from a normative perspective.

Keywords: Criminal Law, Criminal Defenses, Provocation Doctrine, Law and Psychology, Law and the Emotions

Suggested Citation

Buchhandler-Raphael, Michal, Loss of Self-Control, Dual-Process Theories and Provocation (March 5, 2019). Fordham Law Review, Forthcoming; Washington & Lee Legal Studies Paper. Available at SSRN: https://ssrn.com/abstract=3347115

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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