The Provocation Debate

Topics: Criminal law, Manslaughter, 21st century Pages: 3 (820 words) Published: August 22, 2013
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* Provocation- common law, criminal defence * Either or both statutory or common law * Possible defence by excuse or exculpation alleging a sudden or temporary loss of control- in response to another’s provocative conduct to justify an acquittal, mitigated sentence or conviction of lesser charge * Can be relevant in a court’s assessment of a defendant’s mens rea, intention or state of mind at the time of the incident * In some cases in UK, Canada and several Australian states, the defence of provocation is available only against a charge of murder- and can reduce to manslaughter * Known as ‘voluntary manslaughter’ * In USA the Model Penal Code substitutes the broader standard of extreme emotional or mental distress for the comparatively narrower standard of provocation * Under USA Sentencing Guidelines for federal courts- ‘if the victim’s wrongful conduct contributed significantly to provoking the offence behaviour, the court may reduce the sentence below the guideline range the reflect the nature and circumstances of the offenceHistory- * Developed in English courts in 16th – 17th century * At that time a conviction of murder carried a death sentence- thus a lesser offence was needed * At the time it was seen as socially required for a man to respond with controlled violence if ‘his honour or dignity was insulted or threatened’ * It was then considered to be understandable that the violence might be excessive and end in murder * In the 19th century the idea of acceptable violence when insulted began to weaken * The circumstanced were changed to- while such responses may not be ideal, they were a normal reaction resulting from loss of self- control- and thus deserved mitigating circumstances * By the end of the 20th century and beginning of the 21st century the defence of provocation and when it should be applied has caused much controversy * Many put it down to anachronism-...
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