A. Provocation
An intentional killing committed in response to provocation constitutes manslaughter, rather than murder. In most jurisdictions, the defendant must prove the following to establish provocation:
• that the murder was committed under the influence of the heat of passion, produced by adequate or reasonable provocation;
• before a reasonable time had elapsed for the blood to cool and reason to resume; and
• the killing was the result of the temporary excitement, by which self-control was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition.
If these tests are met, the law mitigates the killing to manslaughter. Provocation, therefore, is a rule of mitigation for intentional homicides committed under certain extenuating circumstances. The principle involved suggests that reason would, at the time of a killing, be disturbed or obscured by passion to an extent which might render ordinary or reasonable people liable to act rashly or without due deliberation or reflection and instead from passion rather than judgment. Provocation affects the quality of the offender's state of mind as an indicator of moral blameworthiness. Thus, the defense of provocation exists with respect to a charge of murder even though all the elements of the definition of murder have been established; it is an allowance made for human frailty and a recognition that a killing, even an intentional one, is extenuated by the loss of self-control caused by adequate provocation, and is less heinous than an intentional killing by a person in possession of his self-control.
In order to determine whether murder should be mitigated to manslaughter, the circumstances surrounding the homicide are examined and an attempt is made to discover if the victim provoked the murder. This examination of the victim's behavior is an essential difference from the Model Penal Code requirements-- only at common law is there a direct provocative nexus requirement between the victim and the insult. Thus, provocation is properly regarded as legal recognition that an inquiry into the reasons for the actor's formulation of intent to kill might reveal factors significant for the grading of the offense. Racist abuses leveled by the victim, therefore, validly form part of the inquiry into the criminal culpability of the offender.
Whether the provocation defense is properly categorized as a partial excuse or partial justification is disputed. Seen as a partial justification, the moral notion that the punishment of wrongdoers is justifiable surfaces as a veiled rational. This formulation itself creates a moral problem, as it is disconcerting to suggest that there is less societal harm, and accordingly less criminal responsibility, for a victim's death given his or her immoral or offensive behavior. In this vein, it is inappropriate to construe provocation as a doctrine of justification as the victim's immoral conduct should not, theoretically, jeopardize their life.
While it is arguably never morally right to kill a wrongdoer, it is implicit in the construction of provocation as justification that the deceased provocateur is complicit in orchestrating the loss of self-control of the accused. Similar to the contributory negligence doctrine, the accused, under this formulation of provocation doctrine, is at least partially morally justified in responding punitively against the deceased offender. Accordingly, the paradigmatic facts in a provocation case do not involve the prototypical innocent victim, rather there are arguable moral wrongs committed by all parties involved in the crime--both victim and perpetrator. Indeed, it may be disingenuous to claim that the provocation doctrine does not involve a certain amount of victim-blaming, or at least conduct-blaming, as the actions of the victim by necessity inform the deliberation of what is adequate or reasonable provocation, its seriousness and the accused's corresponding ability to control him or herself.
In the realm of a violent response to a racial offense or insult, the victim intentionally inflicts wounds that are orchestrated to be devastating. It is unlikely that a racially abusive victim is unaware of possible consequences of his abuses; indeed, the provocateur likely recognizes and intends the provocative effect of his words or deeds. Just as a defendant claiming self-defense must properly tender the conduct of the victim, so too in articulating racial abuse as provocative must the conduct of the victim be critically examined. The examination is two-fold.
Common law provocation has both an objective and subjective framework for this analysis. Traditionally, courts limited the circumstances of adequate provocation by casting generalizations about reasonable human behavior into rules of law that structured the doctrine. Adequacy was measured by reference to the objective standard of the hypothetical “reasonable man.”
Further, a series of categories emerged to define conduct that a jury might deem adequate provocation. First and foremost, a physical attack might constitute provocation, though not every technical battery could suffice. Of course, even a violent blow would be inadequate if the deceased were entitled to use force, for example in self-defense. Mutual combat became another established category of provocation. Less clearly, a threat of physical attack might constitute provocation, at least in extreme cases. Unlawful arrest would sometimes suffice, and the law frequently recognized witnessing adultery as provocation for intentional homicide of either the unfaithful spouse or the paramour. Certain other acts--chiefly violent or sexual assault on a close relative--might also constitute adequate provocation. Importantly, the courts excluded some situations from the jury's consideration altogether. Thus, it became an established rule at common law that words alone, no matter how insulting, could not amount to adequate provocation. This restriction does not form part of the expanded Model Penal Code provision--extreme emotional or mental disturbance may, in fact, be generated by words. Therefore, as a point of departure for critical psychology, it is fair to interpret the MPC version of provocation as allowing for greater infusion.
The above-mentioned acts mitigate homicide to manslaughter because they create passion in the defendant such that any ensuing violence is not considered the product of free will. Critical psychology is implicated by the possibility of passion generated by racialized psychological issues which adversely affect free will. Provocation, as a doctrine, allows for the possibility that some instances of intentional homicide may be as attributable to the extraordinary nature of the situation as to the moral depravity of the actor.
The slighter the provocation, measured against the reasonable person, the more reason for defining the actor's behavior as idiosyncratic and to see the result as his own extraordinary susceptibility to intense passion, or deficiency of reason. However, this objective analysis cannot be equitably applied without some removal of the reasonable person from the realm of the abstract--there should be some subjectivization and contextualization to ensure that the objective standard reflects societal realities. I have suggested elsewhere that it is in this regard that critical psychology could prove useful:
Clearly, in order for the reasonable person to be “similarly situated and similarly insulted” and to assess racial abuse, the context of the reality and legacy of racism must be considered. Surprisingly and unfortunately, the consequences on the body, mind, and spirit of living in a world where one is subject to systemic discrimination on a regular basis have largely been unexplored by criminal justice systems. The courts are in a pivotal role of evaluating expert evidence in a manner that will not add to the vulnerabilities of those who come to them seeking justice. “Only by integrating scientific advancements with our ideals of justice can law remain a part of the living fiber of our civilization.”
For provocation to be adequate, it must be “calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.” Racial epithets, or the weaponry of words, are a quintessential example of calculated attacks intentionally meant to inflame or wound the person at whom they are directed. To determine what is reasonable or adequate provocation, the factfinder must consider what would naturally tend to produce such passion in ordinary people that self-control is lost and one acts on impulse without reflection.
Bohanon utilizes the epithet “[B]lack bitch,” which implicated both the race and sex of the victim. A simple electronic search reveals that this particular slur was used in over 200 reported cases to abuse Black women. The reported cases no doubt comprise only the tip of the iceberg. The searches referenced in this Article reveal that words are indeed frequently and intentionally deployed in abusive ways.
The victims, the Walkers, were naturalized citizens of the United States who emigrated from Jamaica. Thinking Mr. Bohanon to be down on his luck, the victims befriended him and introduced him to their friends. When the Walkers expressed disapproval of the romantic interest Bohanon showed in their niece, they started to receive threatening and vile letters. Bohanon sent between 100 and 300 such letters. The letters often contained obscenities directed to the Walkers, such as the following:
Yo mama is the deadest piece of third world dog sewage nigger in the grave of Foney ass Jamaica. Worms crawl all over her rotten carcus and she loves it. . . . This dead bitches skin has peeled off and her hair is so dry it feels like cardboard, I mean this bitch is dead. Your wife is next and when she hits the grave she will look like a big tub of nasty ancient. While doing the autopsy before her funeral, they are going to cut her rectum out and those sick doctors are going to fuck her with a big greasy louiville slugger until the bottom fall out of that rotten dead body. They will be vendictive and fuck her in the ears and eye sockets[,] piss on her dead carcus then take that wet greasy bat and beat her whole body until it sweals and swealters up like a balloon. . . . They will then urine on it, ten or fifteen different people and then prepare that black pile of shit for the wake. A word from you mother: Son I feel like a dried up bitch, I'm wrapped in worms like a dead mummy, it's mommy.
The language Bohanon used is deeply offensive on many levels including, but not limited to, race, sex, national origin, and sexuality. Much of this language might insight responsive violence, but the provocative potential of the racialized abuse is particularly relevant since the court in Bohanon recognized that the Walkers had suffered psychological injury from the communications. Specifically, the court accepted the testimony that the Walkers had been humiliated, lived in fear and were understandably stressed by these incidents.
Had the Walkers responded to Bohanon's letters with violence, they would deserve sentence mitigation. However, in that situation, the common law, as codified in most jurisdictions, would deny this relief. In so doing, the law denies the reality of psychological injury acknowledged both by the critical psychology and the Bohanon court. At this critical nexus, therefore, the ability of the traditional American common law doctrine breaks down to abstraction in its dismissal of the provocative potential of words alone.
Of course, the jury would still need to be satisfied that the provocation at issue did, in fact, produce a mental state of passion in the offender. Provocation is not an applicable defense unless the accused was actually provoked. As stated in the MPC, “[t]he underlying rationale is that the individual whose passions are not aroused by provocation merits the same condemnation and punishment as one who kills without provocation of any sort.”
Hence, the provocation doctrine requires a subjective assessment of the psychological situation of the accused--even a psychological situation rendered disparate by racism and its effects. This subjective mental state should, accordingly, be informed by the critical psychology where appropriate. Such outsider psychology, which recognizes the subjectivity of experience, especially as it implicates race, ethnicity and gender, comports with the court's recognition in Bohanon that the Walkers were psychologically injured, stressed, and humiliated. People with weaker coping skills and resources than the Walkers, might have had their “human frailties” exposed, might have reacted with less restraint than the Walkers were able to muster and, accordingly, might have needed a defense which recognized the provocative capacity of racialized abuses. While the common law defense of provocation would likely deny mitigated sentencing in the hypothetical posed above, the Model Penal Code's more expansive scope would allow for greater consideration of critical psychology in the Bohanon situation.
