lc290 Partial Defences to Murder report - Law Commission

emotional state, but no reasonable explanation or excuse for killing another
person.
3.51 The defence is rooted in the excuse based category of defences, founded on the
defendant’s state of mind (whatever may have caused it), although some states
have adopted the MPC in an amended form narrowing the causes of the
defendant’s disturbance. (New Hampshire requires that the extreme mental or
emotional disturbance be “caused by extreme provocation”.)
3.52 Victoria Nourse, 37 addressed this controversy in a study of jurisdictions in the
USA, some of which have kept a ‘traditional’ law of provocation while others have
moved to a more ‘liberal’ scheme based on the MPC. Professor Nourse presents
a strongly reasoned case why wrongdoing by the victim is an important part of
the proper moral foundation of the defence of provocation, providing a justifiable
reason for the defendant’s sense of outrage, and therefore a partial excuse (but
not a justification) for the defendant’s over-reactive response. She has written:
The most persuasive scholarly defences of provocation have all
invoked examples … in which the defendant’s emotion reflects the
outrage of one responding to a grave wrong that the law otherwise
punishes. Commentators frequently use examples of men killing
their wives’ rapists or children who kill abusive parents as clear
cases of provoked murder. When, for example, the MPC drafters
sought to justify their expansion of the defence, they relied on a
case involving forcible sodomy.
The problem comes when we focus on cases in which the emotion
is based on less compelling ‘reasons’ – when women kill their
departing husbands or men kill their complaining wives. Under
conventional liberal theory, if extreme emotion is shown, these
cases should be handled no differently from cases where victims kill
their rapists and stalkers and batterers. The quantity or intensity of
the emotion provides the excuse, not the reasons for the emotion.
This focus on emotion, to the exclusion of reason, reflects a very
important assumption made by liberal theories of the defence, that
emotion obscures reason. When we distinguish the rapist killer from
the departing wife killer, we acknowledge a very different view of
emotion, one in which emotion is imbued with meaning. Both the
departing wife killer and the rapist killer may be upset, but the
meanings embodied in their claims for emotional understanding are
quite different. In distinguishing these cases based on the reasons
for the claimed emotion, we acknowledge a view of emotion in
which emotion is not the enemy of reason but, instead, its
embodiment… .
In the past two decades, the idea of emotion as the natural enemy
of reason has been seriously questioned by brain scientists and
37 “Passion’s Progress: Model Law Reform and the Provocation Defense” (1997) 106 Yale LJ
1331.
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