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Also see: Provocation in English law.

In criminal law, provocation is a possible defense by excuse or exculpation alleging a sudden or temporary loss of control (a permanent loss of control is in the realm of insanity) as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge. Provocation can be a relevant factor in a court's assessment of a defendant's mens rea, intention, or state of mind, at the time of an act of which the defendant is accused.

In some common law, jurisdictions such as the UK, Canada, and several Australian states, the defense of provocation is only available against a charge of murder and only acts to reduce the conviction to manslaughter. This is known as "voluntary manslaughter" which is considered more serious than "involuntary manslaughter", which comprises both manslaughter by "unlawful act" and by criminal negligence. In some states with Criminal Codes, such as the Australian states of Queensland and Western Australia, provocation serves as a complete defense to the range of assault-based offenses. In the United States, the Model Penal Code substitutes the broader standard of extreme emotional or mental distress for the comparatively narrower standard of provocation.

Provocation, however, is not a defense available to the civil torts of assault or battery.[citation needed]

Controversy

Generally, the defense is controversial because it appears to enable defendants to receive more lenient treatment because they allowed themselves to be provoked. Judging whether an individual should be held responsible for their actions depends on an assessment of their culpability. This is usually tested by reference to a reasonable person: that is, a universal standard to determine whether an ordinary person would have been provoked and, if so, would have done as the defendant did. Thus, if the majority view of social behavior would be that, when provoked, it would be acceptable to respond verbally and, if the provocation persists, then to walk away, that will set the threshold for the defense.

But, in Australia, Canada and the UK, the relationship between the defences of provocation and self-defense has become particularly contentious in cases where one partner or former partner kills the other. On the available evidence from court records, critics of the current laws have identified a gender bias so that men who kill their former wives or girlfriends for breaking off the relationship have found it easy to claim provocation when compared to women (or gay men) in abusive relationships who kill their abuser and then find it difficult to use their history of abuse as self-defence (see battered woman syndrome).

Phil Cleary has been the most publicly visible campaigner on this issue in Australia. Mr Cleary's sister was murdered by a former partner who then claimed provocation, serving less than four years in jail. [1] In 2005, based on the Victorian Law Reform Commission's Defences to Homicide: Final Report [2], the Victorian government announced changes to the law of homicide in that State, which are intended to redress this perceived imbalance. [3].

Another controversial factor of this defence, especially in UK law, is that the provoked must have carried out their act immediately after the provocation occurred, otherwise known as a "sudden loss of self control". The controversy comes when it is asked "what is immediate". This argument on the grounds of time still occurs and has caused many defendants, particularly women, to lose their cases on this ground, as they will often wait (in wife-battering cases) till the husband is asleep. Shown in R v Ahluwalia 1992.

Provocation as a partial defence for murder came into spotlight in New Zealand during 2009 following the trial of 33-year-old university tutor Clayton Weatherstone, with calls for its abolition except during sentencing. On 9 January 2008, Weatherstone stabbed to death university student and girlfriend Sophie Elliott in her Dunedin home. During his trial, Weatherstone used provocation as a defence to murder and claimed it was manslaughter. He was found guilty and sentenced to life imprisonment with a 17 years non-parole period.

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