Provocation is a legal defense used to reduce charges in murder cases, arguing that the victim’s actions provoked the attack. It is not available in all regions and does not excuse the crime. Successful use can result in reduced charges or sentence. Some countries are abolishing this defense.
Provocation is a legal term that speaks of the intent of a person to commit very serious crimes such as murder. This defense is not available in all regions and, if used, may only be permitted as a defense in murder cases to reduce, but not dismiss, charges. Similar defenses available elsewhere include loss of control or mental or emotional distress that is extreme. In its narrowest sense and where it is most used, such as in the UK, provocation essentially argues that the murdered person did something so irritating or upsetting to the murderer, that it provoked the attack that led to the crime.
Common actions that could be considered provocative include making gestures or statements that are threatening, but not as yet life-threatening, to the person committing the crime. Some actions such as infidelity may require a legal defense of provocation. Even true long-term acts of violence, such as abusing a spouse, can result in such a spouse, that at a time when the abusive spouse is not threatening, the abused spouse kills them. This defense should be seen as different from justifiable self-defense and, rather, refers to a person who becomes so enraged that they cannot help their actions up to a point. It’s also different from temporary insanity, which could be a reason to excuse the charges and find someone not guilty.
This is why provocation cannot generally be used as an argument why the person should not be accused of a felony. The defendant has not lost the mental ability to judge the difference between right and wrong, and was not faced with an immediate threat to life. Instead, that person was provoked to act horribly under extreme duress. If the person had not been provoked, he would not have acted in this way, and therefore it becomes reasonable to assume that a homicide was not intentional or committed in the same spirit as it would have occurred if the provocative behavior had not existed.
If successfully argued, a provocation defense can reduce the charges or sentence. A person, who under other circumstances might be charged with murder, might instead face manslaughter charges. Courts sometimes leave the final indictment to a jury and can decide whether a defendant has successfully proved provocation and what indictment is appropriate based on that. It bears reiterating that being provoked does not mean avoiding jail time, but it could mean that a person avoids being charged with a level of murder that signifies pure intent.
There is movement in areas where provocation is a permissible defense to take it out. In 2009, New Zealand abolished it and other countries may follow. There have been extreme cases where people who commit horrendous crimes have served very little time in prison, despite having committed murder. A strong argument against this defense is that adults must learn to control themselves.
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