provocation: partial justification or partial excuse

PROVOCATION: PARTIAL JUSTIFICATION OR PARTIAL EXCUSE? I. INTRODUCTION WHYis a person who intentionally kills a provoker guilty only of manslaughter rather than murder? What is the theoretical basis for the defense of provocation? Three decades ago, J. L. Austin asked the question this way: “Is [the provoker] partially responsible because he roused a violent impulse or passion in me, so that it wasn’t truly or merely me actin ‘of my own accord’ (excuse)? Or is it rather that, he having one me such injury, I was entitled to retaliate (justification)’,?’

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Put in somewhat different terms, Austin’s question comes down to this: Does the provocation plea in a criminal homicide prosecution function as a partial excuse, based on the actor’s passion and subsequent loss of self-control, or as a partial justification, based on the wrongful conduct of the provoker? In a recent article: Finbarr McAuley claimed that provocation functions as a partial justification rather than as a partial excuse for a homicide. Although he acknowledges that the defense is a concession to human weakness, he warns that “it would be a mistake to assume that the defence can be justified on these grounds The “true basis” of the defense, McAuley asserts, “is . . . the contribution of the victim, in the fact that his wrongful conduct was the cause of the defendant’s violent o ~ t b u r s t . ” ~ Because the killing is in response to the decedent’s wrongful conduct, “the defence entails a denial that the defendant’s actions were entirely wrongful in the first place.”’ Thus, whereas excuses focus on an actor’s internal mechanisms for self-control, the “real concern [in provocation cases] is with external constraints on the individual’s powers of self-control.”6 The justificatory nature of the defense, McAuley reports, has “deep roots” in English common law and among many modern authorities. The author concedes, however, that the trend in England and the United States of America is to treat the defense as an excuse, by focusing less on the decedent’s wrongful conduct and more on the accused’s lack of self-control. As a result, this “points to a trend which may eventually lead to the complete assimilation of the plea of provocation with the defence of ~

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Austin, “A Plea for Excuses” 57 Proceedings of the Aristotelian Society (1956), p.3. * “Anticipating the Past: The Defence of Provocation in Irish Law” 50 M.L.R. 133 (1987). Ibid., p.136. Ibid., p.137. Ibid., p.139. Ibid., p.137.

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diminished responsibility. Should this happen, the justificatory elements in the plea, already neglected, would become otiose, and an aspect of human behaviour with which the common law of provocation is adequately equipped to deal, unnecessarily pathologised. ’” McAuley should be commended for discussing the justificationexcuse dichotomy in the context of the provocation defense. The distinction matters for at least three reasons.’ First, if lawmakers act thoughtfully, the elements of the defense, and therefore its applicability in individual cases, will differ depending on whether the defense is viewed as a (partial) justification or as an excuse. Second, careful attention to the justification-excuse distinction can tell us a great deal about how we should think about analogous defenses. For example, as is explained more fully below,9 if provocation is a partial justification as McAuley asserts, it is plausible that a similar partial or full defense should be recognised in various nonparadigmatic self-defense situations, such as when a battered wife kills her sleeping husband. However, if the provocation plea is one of excuse, the analogy to justified self-defense is inapt; on the other hand, as an excuse provocation raises some intriguing and troubling questions about the common law’s reluctance to recognise any defense to a coerced homicide.’O If I am partially excused when my anger overwhelms my self-control, why is it, for example, that I am not excused at all if fear from a coercer causes me to kill an innocent person? Third, the criminal law ought to send clear moral messages. There is considerable moral difference between saying that an intentional killing is warranted (partially or fully), and saying that it is entirely wrong but that the actor is partially or wholly morally blameless for his wrongful conduct. As a descriptive matter McAuley is doubtlessly correct that aspects of provocation law appear to be justificatory in nature. I would not draw the conclusion from this fact, however, that the defense is a partial justification for an intentional homicide. Rather, I think the more accurate statement regarding the nature of the defense is one that I have written elsewhere, namely that “[a] careful analysis of the language and of the results of common law heat of passion cases demonstrates that there is uncertainty whether the defense is a sub-sDecies of iustification or of excuse.”’l

’ Ibid., p.157.

Until recently, few Anglo-American scholars and even fewer lawyers were sensitive to the distinction between justification and excuse defenses in the criminal law. For a brief discussion of the distinctions and why they should matter to lawyers and lawmakers, see Joshua Dressler, Undersranding Criminal Law (New York, 1987), pp.179-190; Dressler, “Justifications and Excuses: A Brief Review of the Concepts and the Literature” 33 Wayne L. Rev. 1155 (1987). See the discussion at pp.477-479below. R. v. Howe, [1987]2 W.L.R. 568;Abbon v. Queen, [1977]A.C. 755. Dressler, “Rethinking Heat of Passion: A Defense in Search of a Rationale” 73 J. Criminal Law & Criminology 421 (1982),p.428.

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Unfortunately, judges have frequently demonstrated an inadequate sensitivity to the distinction between justification and excuse in provocation cases.12 The primary concern here with McAuley’s article, however, centers on his “first principle^."'^ It is the thesis of the present article that our common intuition tells us that provocation (partially) excuses, but does not (partially) justify, a homicide. Moreover, careful consideration of the moral theories of justification should convince most persons, including lawmakers, that a provoked homicide should not be identified as a justification, partial or otherwise. 11. DISTINGUISHING BETWEEN “COULD”AND “SHOULD” McAuley draws a line between excuses such as insanity and automatism, on the one hand, and the provocation plea, on the other hand. He writes that “[flailure to attend to the distinction lies at the heart of much of the confusion surrounding the defence of provocation. ’’I4 As McAuley interprets the law, insanity and automatism are true excuses because, with those defenses, the “individual is deprived of his self-control in circumstances he can do nothing about ,”whereas with provoked homicides “he merely loses control in circumstances in which it is difficult but not impossible to retain it.7715With excuses, therefore, the issue to be resolved is whether the defendant could have controlled himself , whereas with provocation the only question is whether the individual should have controlled himself.l6 The provocation defense represents a rare, and only partial, departure from the rule that an actor who possesses the capacity for self-control should control his actions. l7 McAuley is correct that when the issue regarding a potential defense is couched in “should” terms, i.e. should the defendant have acted as he did?-we are asking for a justification, not an excuse, for the conduct. By definition, when a person seeks to be excused for his conduct, he concedes that he should not have acted as he did, but he asserts instead that he ought not be held Lord Goddard in R. v. McCarrhy [1954] 2 Q.B. 105 at pp.109-110, neatly demonstrated the confusion when he rejected the provocation defense due to a disproportional response by the defendant: “While this provocation would no doubt have excused . . . a blow . . . it could not have justified the infiction of such injuries as [resulted in death].” (Emphasis added.) l3 McAuley asserts that he arrived at his partial justification thesis from first principles. Op. ci?., p.150. However, as is shown here, he never seeks to defend his first principle except by citing common law decisions. l4 Ibid., p.134. Ibid., pp.133-134. l6 Ibid. p.134. McAuley states that it is arguable that the recognition of the provocation defense is “more an accident of legal history than a departure from legal principle.” Ibid. At least in part, the defense’s formulation was a judicial effort “to fashion a discriminating filter for cases of intentional killing which were thought . . . to be insufficiently heinous to warrant a capital sentence.” Ibid., p.135 (footnote in quotation deleted).

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accountable for his wrongful conduct, i.e. that he does not deserve to be punished for his wrongdoing.” If McAuley is right, therefore, when he asserts that the only issue to be resolved in provocation cases is whether the actor should have intentionally killed the provoker, the defense-if it is to be recognised at all-must be a (partial) justification rather than a (partial) excuse. Unfortunately, McAuley’s could-should dichtomy is flawed in at least two ways. First, McAuley is unduly enamored of the Italian approach to justification-excuse law, about which he recently wrote.” In Italian law, he asserts, excuses “acknowledge that the accused failed to meet legal standards, but seeks to show that he was not in a position to do so because of some dkabling factor such as insanity or age.”20In Italian law, an excuse explains why the actor should not be judged by the standards that apply to others. By this view, for example, duress is not an excuse, since the actor is not suffering from some internal disabling condition, i.e. he could have obeyed the law. McAuley observes that “it would strike an Italian lawyer as odd” to describe duress as an excuse.21Instead, duress is a justification in Italian law. Given this approach to excuses, it is not surprising that McAuley considers provocation a justification rather than an excuse, and that he is troubled about the modern trend to “pathologise” the provocation defense by blurring the distinction between it and the defense of diminished responsibility. Unlike the sufferer of mental disease, automatism, or diminished responsibility, but like the coerced actor, provoked killers suffer from no relevant internal disability. They are ordinary people, with ordinary fallibilities and weaknesses. As such, ordinary legal standards apply to them. To Most excuse theories are nonutilitarian, primarily retributive, in nature. The primary goal of excuse defenses is to provide justice to the individual wrongdoer-revent undeserved punishment-rather than to prevent future crime. For a fuller discussion of the nature of excuses, see Dressler, “Reflections on Excusing Wrongdoers: Moral Theory, New Excuses and the Model Penal Code” 19 Rutgers Law Journal 671 (1988). Nonetheless, two utilitarian excuse claims-ones not based on the principle of “just deserts”-may be made. First, a person who is provoked to commit a homicide is largely undeterrable; since inefficacious punishment is an evil, the law should grade criminal homicides so that less deterrable crimes are punished less severely than more deterrable ones. Second, provoked killers in general are less dangerous, and therefore less in need of punishment, than typical intentional killers. Although neither McAuley nor anyone else has proven this point empirically, the conclusion is consistent with a basic premise of the defense discussed later in the text, that the defense applies in those circumstances in which normal human weakness rather than a criminal disposition is involved. These arguments run counter to two utilitarian arguments against recognising the defense. First, the law ought to send the strongest possible message to society that people must learn the channel their anger in nonviolent (or, at least, nonhomicidal) fashion. Second, some utilitarians are concerned that recognising excuses of any kind can result in fraudulent successful pleas that undermine the general efficacy of penal statutes. I9 McAuley, “The Theory of Justification and Excuse: Some Italian Lessons” 35 Am. J. Comparative Law 359 (1987). Ibid., p.360. Ibid., p.361.

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McAuley, their conduct cannot be excused; if anything, it must be justified. His conception of excuse, however, is too narrow. It conflicts with Anglo-American jurisprudence and common intuitions. We do excuse people, both in the law and in our everday lives, who have the internal capacity for self-control, i.e. people who “could” control themselves-if they lacked a fair opportunity to exercise those capacities.” Duress is the prime example of a “no fair opportunity” excuse.23 When a person is coerced to commit a forcible rape, for example, he has the internal capacity for self-control in a way that the insane person or the individual suffering from automatism does not. The coerced rapist can refuse to accede to the threat. He rationally chooses to rape the victim rather than to risk death or serious bodily harm.” Although what he has done is wrongZs-he should not have committed rape-and although he had the capacity not to rape the victim-he could have refused-he is excused nonetheless because he lacked a fair opportunity to conform his conduct to the law. Although it is not the best explanation for the provocation defense, it is not implausible to argue that provoked killers are much like victims of coercion: they are (partially) excused, although they had the capacity to control their behaviour, because they lacked a fair opportunity (in light of the provocation) to control themselves. The point here is that the concept of excuse need not-and should not-be defined as narrowly as McAuley and Italian law apparently do. We excuse those whom we cannot blame. Blame is as inappropriate when external circumstances prevent a person from having a fair chance to apply his capacities as when he suffers from an internal disabling condition. “Excuse” and “pathology” are not synonyms. A second difficulty with McAuley’s could-should dichotomy is that the “could” issue-even as he frames it-is relevant in provocation cases. Moreover, McAuley should see the lurking difficulty with his approach. Thus, in his effort to defend the 22 H. L. A. Hart, Punishment and Responsibility (New York, 1968), p.181. McAuley seems to concede this: “As already indicated, excuses bear exclusively on the question of the defendant’s ability to comply with the law’s requirements. They are legally recognised ways of asserting want of capacity or opportunity to comply on his part.” M.L.R., op. cif., p.145 (emphasis added). 23 For a fuller discussion of duress, see Dressler, 19 Rutgers Law Journal, op. cif., pp.708-712. See J. Stephen, A History of the Criminal Law in England (1883), p.102 (speaking of the person who walks to his execution: “[his actions] are just as much voluntary . . . as if he [were] going to leave his place of confinement and regain his liberty. He walks to his death because he prefers it to being carried.”) ~5 In some cases, a coerced act may represent a lesser evil, which the law may prefer to have committed. As discussed in Part IV,in such circumstances the actor’s conduct may be warranted and, therefore, justified. I assume, however, that a forcible rape cannot be justified on such grounds.

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proportionality doctrine of the provocation defense, McAuley quotes Lord Diplock that loss of control is a matter of degree, that “it is not as if ‘there is no intermediate stage between icy detachment and going berserk.’ Consequently, it makes perfect sense for the law to assume that an enraged defendant is capable of some measure of rational McAuley and Diplock are quite right that the ability to obey the law (whether for reasons of cognition or volition) can exist in degrees. Why should we not take this truth to heart in order to understand why provocation can be defended as a partial excuse? Just as we fully excuse those whose capacity to obey the law is almost entirely undermined by factors beyond their control, it is entirely coherent to partially excuse persons who are, to use McAuley’s words, only “capable of some measure” of self-control as the result of conditions for which they are not to blame. As I see it, the provocation plea represents precisely such a “barely could” claim by a criminal defendant. We know from our own life experiences that a provoked person is much less capable than the ordinary unprovoked individual of acting nonviolently. The person who strikes out in righteous anger less chooses to act this way than that he simply finds himself doing it. Unless we are to dispense entirely with the concept of partial excuses in the law, McAuley should recognise that the provocation defense raises a “could” issue.” 111. THEROLEOF THE VICTIM’S WRONGFUL CONDUCT Although the provocation defense can easily fit the excuse mold, this does not mean that a provoked killing should merely be excused. Self-defense killings meet the criteria for excuse,28but we still justify the use of deadly force in self-protection. It may still be the case, therefore, that McAuley is right that provocation is a partial justification rather than simply a partial excuse. Unfortunately, McAuley does not explain why provocation should be denominated as a justification; he only seeks to show that it is. He places dominant emphasis on two related facts. First, that the plea is not solely one of “heat of passion,” but of provocation. That is, the law does not recognise a defense of lack of self-control per se. It does not, for example, mitigate a homicide O p . cir., p.355 (quoting from Phillips, [1969] 2 A.C. 130 at p.137). Some commentators have called for abolition of all partial excuses, including the provocation defense, e.g. Morse, “Undiminished Confusion in Diminished Capacity” 75 J . Criminal Law & Criminology 1 (1984), p.30. Elsewhere, I have argued for their retention. Dressler, “Reaffirming the Moral Legitimacy of the Doctrine of Diminished Capacity: A Brief Reply to Professor Morse” 75 J. Criminal Law & Criminology 953 (1984). 28 That is, even if we determined that killing in self-defense is wrong, an innocent person who seeks to protect his life does not deserve to be punished. The act of selfpreservation is nearly instinctual and, therefore, is largely an unfree act. At one time, se defendendo was a mere excuse. 4 Blackstone, Commentaries (1769), pp.186187. 26

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caused by a violent response to bad news.29 Some apparent provocation is r e q ~ i r e d . ~Second, ’ the only provocation that is adequate to mitigate a homicide is wrongful conduct by the victim or, at least, by the intended victim. It is the wrongfulness of the intended victim’s conduct that makes his death less unjustifiable. Let us consider the concept of wrongful conduct more carefully. First, McAuley’s definition of this critical term is unacceptable. He writes that any “conduct likely to provoke violent retaliation and, consequently, a breach of the peace . . . can properly be regarded as wrongful in the relevant Elsewhere, he explains that “conduct is not wrongful unless it has a tendency, as measured by prevailing social standards, to provoke violent reaction. 7732 Thus, a person acts wrongfully if he does anything that foreseeably will result in a violent response by the defendant. This definition is over-inclusive. At least in the United States, a police officer who threatens to arrest a violent felon for a crime foreseeably may provoke violent retaliation by the arrestee. That makes the officer’s conduct “wrongful” under McAuley’s definition. Obviously, however, the officer’s conduct is justifiable, not wrongful, and cannot serve as the basis for a provocation claim. Similarly, a soccer fan who has the temerity to insult the home team may reasonably expect that his words will result in a violent reply from other spectators, yet I doubt that McAuley would want to suggest that his conduct was “wrongful” and, therefore, that his death would be partially justified. Likewise, in the United States, it is increasingly and distressingly the case that a driver who cuts in front of another automobile on a busy highway should not be surprised if his conduct results in a violent response. Are we to say that such rude driving is “wrongful in the relevant sense?” Wrongfulness is not simply an empirical concept; an independent normative component, unrelated to the likelihood that the conduct will result in violence, must be included. McAuley concedes as much when he writes that “[clhronic heavy snoring or smoking, or persistent tuneless whistling are undoubtedly irritating, and sometimes infuriating, habits . . . But since they are generally-though perhaps improperly in the case of smoking-regarded as behaviour that 29 Op. cir., pp.137-138. Contrary to McAuley’s textual assertion, however, a homicide which would otherwise be murder can constitute manslaughter ill jurisdictions in the United States of America that have adopted the American Law Institute’s Model Penal Code, if it “is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.” Model Penal Code, s.210.3(l)(b). Under the proper circumstances, bad news-for example, a husband suddenly learning that his wife had been raped or a parent receiving news that his child was killed--could partially excuse an intentional homicide. yI Actual provocation is not required, as McAuley correctly concedes, op. cir., p.140, as long as the defendant reasonably believed that his intended victim committed the provocative act. ” Ibid., pp. 137-138. 32 Ibid., p.142.

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should, in the main, be tolerated, it is submitted that the are precluded from supporting a plea of partial justification. , 9 3 7 Even if the concept of wrongful conduct is property defined, McAuley somewhat overstates its justificatory nature. McAuley goes so far as to say that the requirement of wrongful conduct by the decedent “would scarcely be relevant if the defence of provocation were treated merely as a plea of excuse. By definition, the latter would be concerned only with the effects of provocation on the defendant’s powers of self-control . . .”34 The author also observes that a “defendant should not be entitled to rely on blows struck in self-defence when pleading provocation. There can be no justification for killing someone for exercising his lawful Nor should the defendant be “entitled to benefit from the fruits of his own ~ r o n g d o i n g . ”Thus, ~ ~ if D seeks to blackmail V, thereby predictably causing V to become enraged and strike him, D should not be entitled to claim the blow as adequate prov~cation.~’ But, McAuley asserts, under excuse theory “none of these conclusions necessarily holds. ”38 It is true that it is far easier to explain the requirement of wrongful conduct by the intended victim in justificatory terms. Indeed, some cases can only be explained this way. For example, the early common law rule that observation of adultery by one’s spouse is adequate p r o v ~ c a t i o n ,but ~ ~ that observation of unfaithfulness by one’s fiancee is not,40 can only rationally be explained on the ground that adultery is an injustice which (partially) merits a lethal response (apparently because, as one court put it, adultery is the “highest invasion of [a husband’s] p r ~ p e r t y ” ~but ~ ) , that unfaithfulness of an unmarried lover is not similarly unjust. Nonetheless, a plausible case can also be made for the inclusion of the wrongful conduct element in an excuse-based provocation defense. At the least, the wrongfulness of the decedent’s actions is a significant factor, not just “scarcely . . . relevant” as McAuley asserts, in the jury’s determination of whether a provoked homicide is excusable. Even in an excusing system we are concerned with more than the effects of provocation (or any other factor) on the defendant’s powers of self-control. Substitute the word “intoxication” for “provocation” in McAuley’s quoted observation above,42 and the 33 yI

35 36

37 38

39 41 42

Ibid. (footnote deletcd). Ibid., p.139. Ibid., pp.142-143. Ibid., p.143. Edwards v. R . , 11972) - 3 W.L.R. 893. Op. cit., p.143. Manning’s Case, [1793] T. Raym. 212; 83 Eng. Rep. 112. R. v . Greening, [1913] 3 K.B. 846; R . v. Palmer, [1913] 2 K.B. 29. R . v . Muwaridae I17071 Kel. J . 119 at 0.137: 84 Ena. - Rep. . 1107 at p.1115. See the tex’t at-ndte 34:

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error in his reasoning becomes evident. Voluntary intoxication is not an excuse even if the intoxication does affect a person’s power of self-control. The blameworthiness involved in becoming intoxicated is adequate reason not to excuse a person’s later intoxicated acts.43Similarly, we blame-and thus do not excuse-a person who becomes angry enough to lose his self-control and kill if his anger was inexcusable. Put somewhat differently, under excuse theory, we do not (fully) blame a person who (partially) loses his self-control if, but only if, he is not to blame for his anger and for his homicidal actions which result from it.“ As Aristotle observed, “it is apparent injustice that occasions anger .”45 A person who becomes sufficiently enraged to kill because the decedent acted in a nonwrongful manner arguably does not deserve to be excused. At the least, the nonwrongfulness of the decedent’s actions is highly pertinent in determining whether the actor’s loss of self-control was excusable.M Thus, the individual who becomes angry and responds violently when another justifiabZy strikes him in self-defense and the person who unjustifiably creates the situation in which the provocation gives birth are blameworthy and should not be excused. What may be most troubling about McAuley’s discussion of the wrongful conduct requirement is that he accepts the element 43 If intoxication causes a defendant not to form a specific intent required in the definition of an offence, however, acquittal will lie. R. v. Sheehan, [1975] 1 W.L.R. 739. In such cases, however, the defendant is not acquitted on the ground that he is blameless due to an excusing condition, but rather for the logical reason that an essential element of the crime was not proved. McAuley worries that, under excuse theory, a defendant who kills as the result of a trivial insult or minor physical contact would be “just as entitled to the defence . . . as one relying on a serious personal assault.” Op. cir., p.146. His concern is exaggerated. Even under the liberal, Model Penal Code concept of “extreme mental or emotional disturbance for which there is reasonable explanation or excuse,” it is not true that any provocation, no matter how trivial, merits an instruction to the jury on the issue. First, some life irritants are so minor that a court could properly find insufficient evidence that the irritant caused an “extreme emotional disturbance,” e.g. Rackley v. Commonwealth, 674 S.W.2d 512, 514-515 (Ky. 1984) (D’s claim that the victim swung an empty onegallon plastic jug at him, causing confusion on his part, “falls far short of an allegation of emotional disturbance”); second, even in the unlikely possibility that a trivial act did result in an emotional disturbance, a judge could properly conclude that, as a matter of law, the “provocation” did not constitute a “reasonable excuse” for the disturbance (e.g. Stare v. Russo, 734 P.2d 156 (Hawaii 1987). Otherwise, the offense “would undermine the normative message of the criminal law.” American Law Institute, Comment to s.210.3(a)(b) (1985), p.62. McAuley is also wrong when he partially subjectivises the concept of justification, by stating that it can be appropriate to consider the defendant’s race, ethnic origin, or sexual orientation in determining the justifiability of his actions. Thus, McAuley asserts, it may be partially justifiable for an Orthodox Jew, but not for someone else, to kill a person who took a skullcap and trampled on it. Ibid., pp.147-148. Yet, this seems entirely wrong. Why would the provoker’s death be less unwarranted simply because the actor is an Orthodox Jew? This factor may strengthen the excuse claim-we can better appreciate that the killer acted out of understandable rage, so we may be less likely to blame him for his unjustified acts-but the justification claim should not depend on the actor’s idiosyncrasies or his own perception of proper conduct. See generally Fletcher, “The Individualization of Excusing Conditions” 47 So. Cal. L. Rev. 1269 (1974). ” Aristotle, Nicomchean Erhics Bk. V, 1135b line 22 in 2 J. Barnes, The Complete Works of Arirrorle (Princeton, 1984), p.1792. 46 I would choose the latter approach and not require evidence of wrongful conduct as a prerequisite to finding manslaughter, although, as I have tried to show, such a requirement would not be not inconsistent with excuse theory.

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without justifying it. He does not consider, for example, the fact that many common law jurists “have dealt sloppily, disinterestedly or, worst of all, incompetently with the do~trine.”~’ Had they been more sensitive to the distinction between justifications and excuses, the law might have developed differently. Although the reasons for rejecting a justificatory approach to the defense are discussed more fully in Part IV, it is well to consider here where McAuley’s reasoning may lead him and the law. Consider Scriva,48 a case which concerns McAuley. In it, D, a father, became emotionally overwrought when he observed an automobile driver, X, strike and seriously injure his child. When he went to kill X in his sudden passion, an innocent bystander, V, intervened. D intentionally stabbed V. For McAuley, if X had been negligent a plausible provocation case would have been made had he, rather than V, been stabbed.49But, since the intended and actual victim was X, the innocent bystander, under justificatory analysis the provocation defense does not lie. As McAuley rightly observes, in an excuse-based system the father might be entitled to the provocation defense. Such a result, however, seems eminently just. All we need to do is ask ourselves how we might have acted in D’s shoes. If I observed my child killed or seriously injured by a negligent driver and if I became sufficiently enraged or otherwise overwrought that I would seek to kill him at that moment, I doubt that I would have the capacity to forego my attack if a third person sought to block my way. In my state of emotions, that person would seem to be as much my enemy-a protector of my child’s assaulter-as the driver. Of course, such an attitude would be wrong-that is why the killing (even that of the driver) should not be justified; but if my response is one of an ordinary person, with ordinary moral sensibilities and ordinary capacity for self-control, then the case for partially excusing me is made. If the law denies me the defense, the law is unjust. IV. MORALTHEORIES OF JUSTIFICATION It is easy to see why a provoked killing is partially excusable. It is much harder to develop a compelling argument for the proposition that an intentional homicide of a provoker is partially justified. ” Dressler, op cit., 73 J. Criminal Law & Criminology 421 (1982), p.432. See also 11.12. [1951] V.L.R.298. 49 Op. cir., p.144. Why does McAuley require X to be negligent? Based on his own definition of “wrongful conduct” this precondition may be erroneous. How would D know that X was negligent unless, perhaps, X was weaving? Suppose that X struck the child because a tyre blew out. Whether X was negligent in such circumstances will depend on the degree of foreseeability of the blow-out, a fact likely unknowable to anyone on the scene, including the emotionally overwrought father. Yet, the likelihood that the father would react violently will not depend on that post hoc determination. Of course, the requirement of negligence makes sense if “wrongful” includes a nonnative, nonpredictive component, as I suggested at notes 32-33 that it should.

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Given the high value we place on human life, the burden to prove the proposition certainly should be on those who would (partially) justify such a killing. McAuley offers no such defense. Three moral theories are often posited today in cases of justifiable homicide: (1) that it is sometimes morally justifiable to enforce a legal and moral right by taking the life of another (the “rights” theory); (2) that conduct is justifiable when it can be shown that, by balancing the interests at stake in a case, the outcome constitutes a lesser evil than that which would have occurred if the actor had desisted (the “lesser evil” or “superior interest” theory); or (3) that a person, by his voluntary wrongful conduct, can forfeit his right to life (the “forfeiture” theory).50 None of these theories stands up well to scrutiny in provocation cases. The rights theory of justification is the least convincing basis in these circumstances. What right would we want to say the defendant is properly exercising when he kills a provoker? It cannot be the right to life, since the provoker does not jeopardise the defendant’s (or anyone else’s) life.s’ If it is a dignitary right that the defendant seeks to exercise, it should certainly come as a surprise to us that such a right entitles the actor to take a human life in order to enforce it. In any case, whatever right McAuley might posit, it is hard to understand why the right would only be partial. If the defendant is exercising some right that society recognises in this context, why should he be convicted of anything? The lesser evil theory is also difficult to comprehend in partial terms. If the taking of a human life in response to nondeadly provocation is less evil or harmful than countenancing the provocation (an unlikely conclusion at that), the defendant should be acquitted of all homicide charges; if the defendant’s actions are more evil, he should be punished fully for taking a human life. Perhaps, however, it could be agreed that the defendant’s homicidal act is more evil and socially undesirable than the provoker’s conduct, but because of the nature of the provoker’s actions his death is not as wrongful as the death of an innocent person. In this sense the lesser evil theory merges with the forfeiture doctrine. Thus, some people argue that deadly self-defense is justified on the ground that, by his voluntary aggression, the decedent forfeited his right to life: his death “no longer merits our consideration, any more than an insect or a stone Analogously, it might be claimed that a provoker who does not threaten the accused’s life does not wholly forfeit his right to life but that, nonetheless, from society’s perspective his life is entitled to less protection because of his wrongful behaviour. We value his life less than that of an innocent human being. Or, perhaps, we might say that our interest 51

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See generally Joshua Dressler, Understanding Criminal Law, op. cit., pp. 180-183. If he did, the defendant could claim self-defense or defense-of-another. Bedau, The Right to Life, 52 Monbr 550 (1968), p.570.

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in protecting people from aggression is less intense when the decedent’s own wrongful acts contributed to the attack. Such a claim has superficial appeal, but how strongly do we believe it? Do we really believe that a person’s life should be less valued in the law because he slapped the face of the killer, uttered some opprobrium, blew smoke in his face,53or committed a sexual impropriety with a member of the defendant’s family? Is human life so easily alienated? It is one thing to proclaim that the provoker should be punished for his wrongdoing; it is another to sug est that his life can be taken with “partial impunity.” I the partial forfeiture concept is palatable, consider its implications to other aspects of the law. If a person can partially forfeit his right to life by doing something provocative, it seems plausible to suggest that a husband who batters his wife on an ongoing basis partially or fully forfeits his claim to life because of his prior wrongful action^.'^ Some commentators believe that it is important to justify, and not merely excuse, wives who kill their tormenter^.^ Forfeiture could serve as the theoretical basis for such a conclusion. But if so, the right to take the batterer’s life is not conceptually tied to the ordinary requirement of an imminent threat to the life of the killer. If by his prior wrongdoing the husband forfeits his right to life, he can justifiably be killed while he is asleep; or he can be ambushed when he comes home from work. Indeed, under this theory, the spouse is not the only person who can justifiably kill the abuser. If the batterer’s life is not valued, anyone should be able to kill him.56 For example, a child should be able to kill his sleeping

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53 Currently, case law does not partially justify (or excuse) a killing based on such a claim, but McAuley comes close to favoring such a result. Consider his statement quoted in the text at note 33, and his prediction that “it is not inconceivable that smoking in public . . . will eventually be regarded as unacceptable anti-social behaviour.” Op. cit., p.138. Indeed, in the United States today, anti-smoking sentiment is so strong in many states that smokers are provided few places in public buildings in which they may lawfully smoke. The anti-smoking ethos is sufficiently implanted in the minds of many people that violation of the no-smoking ordinance occasionally results in a physical “reply” (e.g. pulling the cigarette out of the mouth of the violator and stomping on it) by nearby non-smokers. Query: what if a nonsmoker kills the offender instead? Or, is the smoker justified in killing the non-smoker because he extinguishedthe cigarette? 54 A similar argument was made to justify extermination of Jews during World War 11. Thus, in 1944 the Hungarian interior minister, Gabor Vajna justified genocide on the ground that “this solution, even if it shall be ruthless, shall be such as the Jews deserve by their previous and present conduct.” Quoted in John Bierman, Righteous Gentile (New York, 1985),p.76. 55 Crocker, “The Meaning of Equality for Battered Women W h o Kill in Self-Defense” 8 Harvard Women’s L.J. 121 (1985), p.131; Schneider, “Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defense” 15 Harvard Civil Rights-Civil Liberties L.Rev. 623 (1980), p.638; see generally Rosen, “The Excuse of Self-Defense: Correcting a Historical Accident on Behalf of Battered Women Who Kill” 36 American U.L.Rev. 11 (1986). 56 George Fletcher has written that “[c]laims of justification lend themselves to universalisation. That the doing is objectively right (or at least not wrongful) means that anyone is licensed to do it.” Rethinking Criminal Law (Boston, 1978), pp.761-762. I and others have questioned some aspects of the universalisation thesis. Dressler, “New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher’s ’Zhinking and Rethinking” 32 U.C.L.A. L.Rev. 61 (1984), pp.95-98; Greenawalt, “The Perplexing Borders of Justification and Excuse” 84 Columbia L.Rev. 1897 (1984), pp.1915-1918. However, if one posits a forfeiture theory of justification, the universalisation claim is indisputable.

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father in order to protect his mother from future abuse. More extremely, a stranger who kills the abuser as consideration for money paid to him by the abused spouse, arguably has a justification claim.” After all, who really cares who swats an unwanted fly? Do we really accept this, or are the implications of the forfeiture doctrine really too troubling?’* If provoked homicides are partially justifiable on forfeiture grounds, which I hope and trust they are not, provocation law requires various reforms. First, the proportionality doctrine probably should be abandoned. Once we say that the result of the death of the provoker is less valued than the death of an innocent person, it is not likely that the meum used to reach that partially acceptable result should be significant (except, of course, as it affects innocent bystander^).'^ Second, the provocation defense should not apply in any case in which the victim did not commit a provocative act. Thus, D would be guilty of murder of V even if she reasonably believed that V committed adultery with her husband, if no wrongdoing actually occurred. Her reasonable mistake would doubtlessly partially excuse the homicide, but V’s life cannot be less valued as the result of D’s misperception.@’ Similarly, if D intended to kill X , a real provoker, but he accidentally killed V, an innocent bystander, the homicide would be unjustified although, again, possibly partially excused.61 Finally, there would not seem to be any reason why the provoked killing must occur during a moment of passion. If V’s life is Fletcher would Limit the applicability of a justification claim to those who perform the act “for the justiliatory purpose,” Rerhinking Crimiwl Law, op. cir., p.762, or who “at least know of the circumstances supporting the claim of [a justificatory] exception.” Ibid., p.565. The contract killer would meet Fletcher’s second test, but not the first. Other commentators do not believe that good motive (or, at least, knowledge of the justificatory claim) is required. Robinson, “A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability” 23 U.C.L.A. L.Rev. 266 (1975). 58 McAuley reasons that in Scriva, op cir., had the defendant been a stranger to the child rather than the father, he would not have been justified in killing the driver. McAuley, op. cir., p.144. He reaches this conclusion by adding a requirement to the provocation calculus: that the defendant “suffered a wrong at the hands of his intended victim.” Apparently he means by this that it is not enough that the decedent acted wrongfully, but that the defendant (or someone in loco parenh to him) must also be the target of the wrong. Such a condition, however, is inconsistent with the universalisation theory of justificatory defenses many assert; in any case, it is wrong if the defense is based on forfeiture analysis, the most plausible deontological theory in provocation cases. 59 The proportionality doctrine is understandable in excuse terms: a person whose anger is excusable, but whose violent response is disproportional to the provocation, is to blame for not exercising his Limited capacity for self-control to respond nonviolently, McAuley believes that a defendant’s reasonable mistake does not threaten the partial justification. Op. cit., pp.140-141. He criticises scholars such as George Fletcher and Paul Robinson who reason that “justification” implies only objectively right conduct. I, too, consider such a limitation on justifications unduly severe. Dressler, op. cir., 32 U.C.L.A. L.Rev. 61 (1984), pp.92-95. If the justification is based on the concept of forfeiture, however, Fletcher and Robinson are correct. McAuley disagrees. Op. cir., p.140. He would apply the so-called doctrine of “transferred malice” to conclude that the partial justification is retained if the inrended victim was the author of the provocation. This is proper if the justification is based on the rights theory. Under the forfeiture doctrine, however, the victim must be the person who (partially) forfeited his right to life.

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(partially) forfeited as the result of his provocation, that reason alone should be sufficient basis to (partially) justify the taking of his life.62 V. CONCLUSION Confusion surrounds the provocation defense. On the one hand, the defense is a concession to human weakness; the requirement that the defendant act in sudden heat of passion finds its roots in excuse theory. On the other hand, the wrongful conduct requirement may be, and certainly some decisions based on that element are, justificatory in character. It is likely that some of the confusion surrounding the defense is inherent to the situation, but it is also probably true that English and American courts were insufficiently concerned about the justification-excuse distinctions while the law developed. Now that scholars have demonstrated that the defense is in need of a more coherent rationale the question that remains is whether the defense should be framed as an excuse or as a justification. To provide an answer , we must scrutinise moral theories of justification and excuse far more carefully than McAuley does in his article. If we do, I submit that the defense is more easily and satisfactorily explained in terms of excuse, on the ground that an actor’s (partial) loss of self-control (partially) excuses his homicidal action. The modern tendency in England and the United States of America, therefore, to treat the defense as an excuse is laudatory. If it is true, as McAuley asserts, that English law exerts a “seemingly magnetic pull”63on Irish jurisprudence, this is not a case in which to decry such an outcome.64 JOSHUA DRESSLER* 62 McAuley writes that “(u]ndoubtedly, a defendant who kills after he has regained his composure . . . is not entitled to the defence, as he can hardly claim that it was the provocation which caused his violent outburst.” Ibid., p.156 (footnote deleted). But, is this so? It will doubtlessly be more difficult to prove that the provocation was the motive for his killing, but as a matter of theory the justification claim may still exist. Op. cir., p.139. til Although it may appear chauvinistic to say so, the Model Penal Code formulation of the defense, s.210.3(l)(b), could serve as a very good starting point for any reformulation of the provocation defense that may be necessary in Ireland or, for that matter, in England. My minor criticisms of the provision are noted op. cir., in 73 J.Criminal Law & Criminology 421 (1982), pp.45W60; and op. cir., in 19 Rutgers Law Journal 671 (1988), 704-705. * Professor of Law, Wayne State University Law School, Detroit, Michigan, United States of America. I thank Professor A. T. H. (Tony) Smith for his thoughtful comments on an earlier draft of this article.