Passion's Progress: Modern Law Reform and the Provocation Defense

Yale Law Journal

Volumn 106, Issue 5, 1997, Pages 1331-1405

  Nourse, Victoria ^a  

^a NONE

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EID: 0346042392     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797186     Document Type: Article

References (468)

1. See PETER W. LOW ET AL., CRIMINAL LAW: CASES & MATERIALS 884 (2d ed. 1990) ("Today, every state employs some variation of the provocation formula to distinguish between two distinct grades of non-capital criminal homicide."). In some jurisdictions, passion or provocation reduces an offense from first to second degree murder rather than from murder to manslaughter. See, e.g., WIS. STAT. §§ 939.44(2), 940.01(2)(a) (1996).
2. My study reviewed hundreds of provocation cases reported by trial and appellate courts between 1980 and 1995. This review led to a data set comprised of every intimate homicide case reporting a provocation claim in jurisdictions that have adopted MODEL PENAL CODE (MPC) § 210.3 (1985) in whole or part. That data set was then compared to samples from jurisdictions adopting traditional and moderate reform regimes. A complete list of the 267 claims involved in this study appears in Appendices B and C.
3. By "reform," I refer here to those jurisdictions that have either adopted the MPC version of the defense or have significantly liberalized the defense in ways similar to the MPC. As I indicate below, my results regarding separation do not hold in those jurisdictions that have retained a more traditional approach toward the defense. See infra Part I.
4. See id. (noting that over one-quarter of all cases in my MPC data set involved neither infidelity nor physical violence but, instead, departure or separation prompting a passionate homicide). On separation generally, see Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1 (1991).
5. Under the MPC, a case may not be submitted to a jury unless a rational jury could find that there was a "reasonable explanation or excuse" for the defendant's claim of "extreme emotional disturbance" (EED). MODEL PENAL CODE § 210.31(b); see also id. § 1.07(5) ("The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.").
6. See State v. Little, 462 A.2d 117, 118 (N.H. 1983) (reporting that defendant was upset because his wife "didn't love [him] anymore" and had rejected his attempts at reconciliation, and stating that jury was instructed it could return EED manslaughter verdict).
7. See State v. Reams, 616 P.2d 498, 499 (Or. Ct. App. 1980) (reporting that defendant was upset because he had come home to find that his wife had moved and all furniture was gone, and stating that defendant urged EED defense at trial), aff'd, 636 P.2d 913 (Or. 1981).
8. See People v. Guevara, 521 N.Y.S.2d 292, 293 (App. Div. 1987) (reporting that defendant was enraged because his wife had filed divorce papers, and stating that jury was instructed it could return EED manslaughter verdict).
9. See Perry v. Commonwealth, 839 S.W.2d 268, 269-70 (Ky. 1992) (reporting that defendant became enraged when sheriff sought to execute protective order and that EED instructions was given); Matthews v. Commonwealth, 709 S.W.2d 414, 418 (Ky. 1985) (reporting that defendant sought to explain his mental state at time of killing by reference to warrants sworn out against him for sexual abuse of his daughter and burglary of his estranged wife's residence, and stating that defendant urged EED defense at trial).
10. See Dixon v. State, 597 S.W.2d 77, 78-79 (Ark. 1980) (reporting that defendant became enraged when his fiancée danced with another man and that jury was instructed it could return EED manslaughter verdict).
11. See, e.g., Rodebaugh v. State, No. 436, 1990 WL 254365, at **2 (Del. Nov. 27, 1990) (reporting that defendant argued provocation to jury in case in which he killed man who was dating woman defendant had dated a year and a half earlier).
12. For instance, State v. Wood, reported a provocation case in which the defendant came upon his ex-wife and her new boyfriend, approximately eight months after "they separated for good," and two months after the divorce had become final. See Brief for Defendant-Appellant at 2, 13-14, State v. Wood, 545 A.2d 1026 (Conn. 1988) (No. 12734). Defendant received an EED instruction at trial. See Brief for State of Connecticut-Appellee at B-1, State v. Wood, 545 A.2d 1026 (Conn. 1988) (No. 12734); see also State v. Rivera, 612 A.2d 749, 750-51 (Conn. 1992) (reporting that defendant received EED instruction in case in which he killed man he believed was having affair with his ex-common law wife three years after she had left).
13. No reform jurisdiction has tried openly to enforce outdated norms of intimate relationships. Indeed, there are appellate cases in reform jurisdictions that seem to cast doubt on whether "leaving" should be considered a reasonable excuse for a passionate homicide. See, e.g., People v. Casassa, 404 N.E.2d 1310, 1314 (N.Y. 1980) (affirming bench trial's determination that defendant's emotional reaction to woman's rejection was "peculiar" to him and not "reasonable"). On the other hand, no appellate court that I am aware of in an MPC jurisdiction has ever squarely held that departure or separation is an insufficient basis, as a matter of law, for an EED claim. In fact, as I argue later, juries in MPC jurisdictions (unlike their more traditional counterparts) hear such cases quite often. See Appendix B (listing cases in which juries were instructed on EED in cases involving separation or departure claims).
14. I use the term "passion defense" to refer to the provocation defense in general. Although it may seem archaic, the plain language of many jurisdictions' statutes includes the term "passion." For examples of such statutes, see WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW § 7.10 n.3 (1986). I use the term "defense" here and throughout this Article in its generic sense as a claim that may reduce punishment, partially or fully. The MPC's own defenses both mitigate and acquit. See, e.g., MODEL PENAL CODE § 3.09 (1985) (stating that mistaken self-defense may lead to mitigation). Finally, I use the term "provocation defense" to cover all forms of the defense, whether the traditional "heat of passion" defense or the more modern MPC version known as "extreme emotional disturbance."
15. I use the term "passion defense" to refer to the provocation defense in general. Although it may seem archaic, the plain language of many jurisdictions' statutes includes the term "passion." For examples of such statutes, see WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW § 7.10 n.3 (1986). I use the term "defense" here and throughout this Article in its generic sense as a claim that may reduce punishment, partially or fully. The MPC's own defenses both mitigate and acquit. See, e.g., MODEL PENAL CODE § 3.09 (1985) (stating that mistaken self-defense may lead to mitigation). Finally, I use the term "provocation defense" to cover all forms of the defense, whether the traditional "heat of passion" defense or the more modern MPC version known as "extreme emotional disturbance."
16. For a complete explanation of this theoretical approach and its variations, see infra Part II.
17. 2 WILLIAM JAMES, THE PRINCIPLES OF PSYCHOLOGY 452 (New York, Henry Holt 1890) (espousing behavioral view of emotion, to which reform is thought to aspire).
18. See supra notes 6-9.
19. It is worth noting that such conflicts are not limited to murder cases but apply to other crimes, such as assault, where provocation remains a defense or partial defense. A minority of states, for example, apply the MPC's EED formula to assault crimes. See, e.g., KY. REV. STAT. ANN. § 508.040 (Banks-Baldwin 1994) (reducing some assaults based on "extreme emotional distress" to class D felonies or class B misdemeanors); State v. Nunn, 646 S.W.2d 55, 58-59 (Mo. 1983) (reversing and remanding for retrial for failure to instruct on EED in assault case).
20. For example, under the Model Penal Code, self-defense, defense of property and duress each require a triggering act that is unlawful. See MODEL PENAL CODE §§ 3.04, 3.09 (1985) (providing that self defense requires actor's belief that force is necessary to protect against use of "unlawful force); id. § 3.06 (providing that defense of property requires actor's belief that force is necessary to prevent "unlawful entry or other trespass"); id § 2.09(1) (providing that duress requires that actor be coerced by use or threat of "unlawful" force). Under section 210.3, however, defendants need not show that they believed that the acts provoking them were unlawful. A few MPC jurisdictions have adopted such a rule, by court decision or by statute, but with uncertain effect on intimate homicide cases. See infra text accompanying notes 301-05 (discussing how such rule appears to have had little effect when defendant claimed failure to reconcile as basis for EED claim in New Hampshire).
21. Under the Model Penal Code, self-defense, duress, and necessity require a showing of proportionality between the acts triggering the defense and the defendant's actions. See MODEL PENAL CODE §§ 3.02(1), 3.02(3)c, 3.04(1), 3.04(2)b (providing that use of deadly force to defend property or self must be proportional to force defended against); id. § 2.09 (providing that duress defense is unavailable when threat is insufficiently serious); id. § 3.02(1)(a) (providing that necessity defense is unavailable when evil sought to be avoided is of less seriousness than law broken in its name). Under section 210.3, defendants need not show that the use of violence was proportionate to the provoking act.
22. See, e.g., State v. Martinez, 591 A.2d 155, 156 (Conn. App. Ct. 1991) ("Two weeks before the victim's death, the defendant, the victim's former boyfriend, had seen the victim dancing with another man.").
23. See Paul H. Robinson, Causing the Conditions of One's Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine, 71 VA. L. REV. 1, 24 (1985) ("[E]very jurisdiction . . . acknowledges that such causing-one's-defense can be relevant to an actor's liability.") (noting application of this idea to whole host of defenses). Recognizing that under section 210.3 defendants may base an EED claim on conditions that they have created, two states have amended their statutes to prohibit it, but with uncertain consequences in intimate homicide cases. See N.D. CENT. CODE § 12.1-16-01 (1985 & Supp. 1995); OR. REV. STAT. § 163.135(1) (1995).
24. See Paul H. Robinson, Causing the Conditions of One's Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine, 71 VA. L. REV. 1, 24 (1985) ("[E]very jurisdiction . . . acknowledges that such causing-one's-defense can be relevant to an actor's liability.") (noting application of this idea to whole host of defenses). Recognizing that under section 210.3 defendants may base an EED claim on conditions that they have created, two states have amended their statutes to prohibit it, but with uncertain consequences in intimate homicide cases. See N.D. CENT. CODE § 12.1-16-01 (1985 & Supp. 1995); OR. REV. STAT. § 163.135(1) (1995).
25. See Paul H. Robinson, Causing the Conditions of One's Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine, 71 VA. L. REV. 1, 24 (1985) ("[E]very jurisdiction . . . acknowledges that such causing-one's-defense can be relevant to an actor's liability.") (noting application of this idea to whole host of defenses). Recognizing that under section 210.3 defendants may base an EED claim on conditions that they have created, two states have amended their statutes to prohibit it, but with uncertain consequences in intimate homicide cases. See N.D. CENT. CODE § 12.1-16-01 (1985 & Supp. 1995); OR. REV. STAT. § 163.135(1) (1995).
26. See, e.g., State v. Traficonda, 612 A.2d 45, 48-49 (Conn. 1992) (reporting that trial court gave EED instruction in case in which appellate court found that "most" of evidence upon which defendant's claim relied was based on his own battering); Newell v. Delaware, No. 269, 1992 WL 53433 (Del. Super. Ct. Mar. 4, 1992) (reporting that defendant stipulated to his own prior bad acts of battering "to use that same evidence to buttress his defense of extreme emotional distress").
27. See infra Part III. Reform's defenders might claim that my argument concerning inconsistency depends upon transforming provocation from a partial excuse to a partial jurisdiction. Cf. Joshua Dressler, Comment, When "Heterosexual" Men Kill "Homosexual" Men: Reflections on Provocation Law, Sexual Advances, and the "Reasonable Man" Standard, 85 J. CRIM. L. & CRIMINOLOGY 726, 749-51 (1995) (dismissing argument that provocation defense is homophobic on grounds that argument transforms defense into justification) [hereinafter Dressler, Reflections]. The parallelism that I seek to emphasize does not depend upon comparing the provocation defense to defenses that are complete or partial justifications: Imperfect self-defense and duress, for example, have both been classified as excuses and both require triggering conduct that is unlawful or perceived as unlawful, unlike the EED defense. As Professor Dressler has noted, the idea that provocation should be limited to cases in which the defendant is "not to blame for his anger" is consistent with an excuse theory of provocation. See Joshua Dressler, Provocation: Partial Justification or Partial Excuse?, 51 MOD. L. REV. 467, 475 (1988) [hereinafter Dressler, Provocation].
28. See infra Part III. Reform's defenders might claim that my argument concerning inconsistency depends upon transforming provocation from a partial excuse to a partial jurisdiction. Cf. Joshua Dressler, Comment, When "Heterosexual" Men Kill "Homosexual" Men: Reflections on Provocation Law, Sexual Advances, and the "Reasonable Man" Standard, 85 J. CRIM. L. & CRIMINOLOGY 726, 749-51 (1995) (dismissing argument that provocation defense is homophobic on grounds that argument transforms defense into justification) [hereinafter Dressler, Reflections]. The parallelism that I seek to emphasize does not depend upon comparing the provocation defense to defenses that are complete or partial justifications: Imperfect self-defense and duress, for example, have both been classified as excuses and both require triggering conduct that is unlawful or perceived as unlawful, unlike the EED defense. As Professor Dressler has noted, the idea that provocation should be limited to cases in which the defendant is "not to blame for his anger" is consistent with an excuse theory of provocation. See Joshua Dressler, Provocation: Partial Justification or Partial Excuse?, 51 MOD. L. REV. 467, 475 (1988) [hereinafter Dressler, Provocation].
29. Although some scholars have been adamant about the defense's normative character, see, e.g., GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW § 4.2.1, at 243 (1978), demonstrations of normative conflict are typically reserved for bizarre cases in which defendants are hypothesized to have grown up in terrorist enclaves, see, e.g., PAUL H. ROBINSON, THE FUNDAMENTALS OF CRIMINAL LAW 619 (1988).
30. Although some scholars have been adamant about the defense's normative character, see, e.g., GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW § 4.2.1, at 243 (1978), demonstrations of normative conflict are typically reserved for bizarre cases in which defendants are hypothesized to have grown up in terrorist enclaves, see, e.g., PAUL H. ROBINSON, THE FUNDAMENTALS OF CRIMINAL LAW 619 (1988).
31. Most MPC scholarship tends to see the important question as one that asks about the personal characteristics of defendants in the situation. See infra Part III (discussing liberal focus on identity to answer questions involving provocation defense).
32. To the extent that provocation honors "emotional realities" about relationships after those relationships have ended, it actually extends the merger of women into relationships from the ancient rule of marital unity into a modem one of emotional unity. Cf. 1 WILLIAM BLACKSTONE, COMMENTARIES *430 ("[T]He very being or legal existence of the woman is suspended during the marriage . . . . ").
33. The "reward" granted here to men for a trait typically deemed "feminine" (emotion) is a double-edged sword because it carries with it the associated judgment that the man lacks moral agency. See Anne Coughlin, Excusing Women, 82 CAL. L. REV. 1, 26-43 (1994) (explaining long tradition in criminal law in which married women were deemed to lack moral agency).
34. See WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY (1995).
35. I do not mean to diminish the effect of these rules upon women. I think it important however, to remember that stereotypes take "two" to create and this can have important, and damaging spillover effects on men as well. See Mary Anne C. Case, Disaggregating Gender from Seex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 9 (1995); Mary Anne Case, Of Richard Epstein and Other Radical Feminist, 18 HARV. J.L. & PUB. POL'Y 369, 370-71 (1995) ("[F]eminism is not simply about women. Feminism is about the sexes - there are two of them.") [hereinafter Case, Of Richard Epstein].
36. I do not mean to diminish the effect of these rules upon women. I think it important however, to remember that stereotypes take "two" to create and this can have important, and damaging spillover effects on men as well. See Mary Anne C. Case, Disaggregating Gender from Seex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 9 (1995); Mary Anne Case, Of Richard Epstein and Other Radical Feminist, 18 HARV. J.L. & PUB. POL'Y 369, 370-71 (1995) ("[F]eminism is not simply about women. Feminism is about the sexes - there are two of them.") [hereinafter Case, Of Richard Epstein].
37. I argue below that the law needs to increase its protection of emotion in some circumstances. See infra notes 417-19 and accompanying text.
38. I do not seek to celebrate the end of intimacy or endorse a heartless independence. I do not believe in an "ethics of autonomy," the claim that our morals depend on human beings who can be described "without relationships." See THOMAS L. SHAFFER & MARY M. SHAFFER, AMERICAN LAWYERS AND THEIR COMMUNITIES 20-21 (1991) (rejecting this position). Relationships are relevant to our identities. See, e.g., Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thought and Possibilities, 1 YALE J.L. & FEMINISM 7, 35-36 (1989) (arguing that respect for autonomy must also recognize role of social relationships in constituting individual). Is I argue later, the law of provocation itself constructs and depends upon a particular idea of loyalty within relationships. See infra text accompanying notes 277-305. The ultimate question here is not whether we should replace loyalty with autonomy. The question is whether the law imposes, rather than reflects, a preexisting ideal of loyalty, an ideal that is based on an image of gendered relationships long ago abandoned.
39. I do not seek to celebrate the end of intimacy or endorse a heartless independence. I do not believe in an "ethics of autonomy," the claim that our morals depend on human beings who can be described "without relationships." See THOMAS L. SHAFFER & MARY M. SHAFFER, AMERICAN LAWYERS AND THEIR COMMUNITIES 20-21 (1991) (rejecting this position). Relationships are relevant to our identities. See, e.g., Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thought and Possibilities, 1 YALE J.L. & FEMINISM 7, 35-36 (1989) (arguing that respect for autonomy must also recognize role of social relationships in constituting individual). Is I argue later, the law of provocation itself constructs and depends upon a particular idea of loyalty within relationships. See infra text accompanying notes 277-305. The ultimate question here is not whether we should replace loyalty with autonomy. The question is whether the law imposes, rather than reflects, a preexisting ideal of loyalty, an ideal that is based on an image of gendered relationships long ago abandoned.
40. See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 33 (1968) (relying on "common sense generalizations" about "human nature" for conclusion that men are "capable of self-control when confronted with an open till but not when confronted with a wife in adultery").
41. Even the best-intentioned efforts at reform may, in the end, simply entrench status regimes. For an extraordinarily insightful examination of the way in which challenges to status regimes sustain as they transform, see Reva B. Siegel, "The Rule of Love": Wife Beating As Prerogative and Privacy, 105 YALE L.J. 2117 (1996). See also infra Part III (noting that by "naturalizing" status relations within minds and hearts of "reasonable men," reform actually entrenched norms about relationship).
42. See 2 CHARLES TAYLOR, PHILOSOPHY AND THE HUMAN SCIENCES: PHILOSOPHICAL PAPERS 15-32 (1985) (discussing this intellectual habit in social sciences generally). Lest there be any confusion at the start, my thesis does not depend upon communitarian notions of the self or the communitarian's attempt to place relationships of loyalty prior to the self. On the other hand, I do not seek to celebrate the victim's autonomy interest as prior to the defendant's. I am asking whether the defendant's claim is really one of autonomy (the right to "choose") or a claim that the defendant is entitled to impose his particular normative view of relationships upon others (the right to "legislate").
43. My understanding of normativity is that it is inherently "relational." Norms are not simply values, they are commitments we make to one another to act in particular ways in the future. If this is correct, an intellectual method that places all of the normative issues within individuals will, from the start, make norms in the image of the individual. I believe that this method, although quite common in the law, is essentially hostile toward candid thinking about our normative commitments. It also makes for obvious conflicts between liberals and feminists. See infra Part III.
44. My diagnosis of the defense's failures as well as my argument for its reconstruction apply to most jurisdictions, not simply those adopting the MPC. The MPC practice is the logical, and most extreme, example of intellectual habits found in many other jurisdictions that have focused on the emotions of "reasonable persons."
45. Lest the idea of an "emotional judgment" seem outlandish from the start, I argue in Part IV that this position is far more consistent with modern ideas of psychology - and even brain science - than the position that emotions are purely behavioral. Nor is it particularly new; one can trace the idea of emotion as essential to moral rationality to philosophers as ancient as Aristotle and Hume. See Annette C. Baier, Hume, the Women i Moral Theorist?, in WOMEN AND MORAL THEORY 37 (Eva Feder Kittay & Diana T. Meyers eds., 1987) (discussing Hume's ideas of "sympathetic" correspondence between persons essential to moral judgments); Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 290-91 (1996) (discussing earlier Aristotelian ideal of emotion as reflection of judgment).
46. Lest the idea of an "emotional judgment" seem outlandish from the start, I argue in Part IV that this position is far more consistent with modern ideas of psychology - and even brain science - than the position that emotions are purely behavioral. Nor is it particularly new; one can trace the idea of emotion as essential to moral rationality to philosophers as ancient as Aristotle and Hume. See Annette C. Baier, Hume, the Women i Moral Theorist?, in WOMEN AND MORAL THEORY 37 (Eva Feder Kittay & Diana T. Meyers eds., 1987) (discussing Hume's ideas of "sympathetic" correspondence between persons essential to moral judgments); Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 290-91 (1996) (discussing earlier Aristotelian ideal of emotion as reflection of judgment).
47. As I argue later, judgments of "wrongfulness" include both intellectual and emotional components. See infra Part IV.
48. Scholarly consideration of the provocation defense has focused a good deal of energy on the question of whether the defense is an excuse or a justification. See, e.g., A.J. Ashworth, The Doctrine of Provocation, 35 CAMBRIDGE L.J. 292, 292-97 (1976); Dressler, Provocation, supra note 24, at 480 (arguing that courts have been "insufficiently concerned about the justification-excuse distinctions" in provocation). I argue in Part IV that the defense remains a partial excuse, but one that requires us to evaluate critically the relationship between the defendant's claims of emotion, and the claims' implicit normative judgments, to other norms the law expresses. I call this a "warranted excuse." See infra Part IV.
49. Scholarly consideration of the provocation defense has focused a good deal of energy on the question of whether the defense is an excuse or a justification. See, e.g., A.J. Ashworth, The Doctrine of Provocation, 35 CAMBRIDGE L.J. 292, 292-97 (1976); Dressler, Provocation, supra note 24, at 480 (arguing that courts have been "insufficiently concerned about the justification-excuse distinctions" in provocation). I argue in Part IV that the defense remains a partial excuse, but one that requires us to evaluate critically the relationship between the defendant's claims of emotion, and the claims' implicit normative judgments, to other norms the law expresses. I call this a "warranted excuse." See infra Part IV.
50. In this, my view is similar to that recently proposed by Dan Kahan and Martha Nussbaum, although I disagree with their proposed solution to the problem. It is necessary, but not sufficient, in my view, to replace a descriptive theory of emotion with an evaluative one. See infra Part IV; cf. Kahan & Nussbaum, supra note 38, at 364-65 (advocating evaluative understanding of emotion).
51. Traditionally, it is thought that excuses and justifications are mutually exclusive - that if action is warranted (and therefore justified), it cannot be excused because, by definition, conduct that needs to be excused is unwarranted. See Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. CRIM. L. & CRIMINOLOGY 421, 438 (1982). This understanding, however, assumes that the proper focus of the inquiry is on the "act" itself; my claim is built upon the idea that we are evaluating the defendant's emotional claims, not his acts. In this world, it is perfectly consistent to say that the act is unjustified overall and, at the same time, that the emotion may be "warranted." See infra Part IV.
52. See Susan Estrich, Don't Be Surprised If O.J. Gets Off Easy, USA TODAY, June 23, 1994, at 1A.
53. See JEREMY HORDER, PROVOCATION AND RESPONSIBILITY 186-87 (1992) (presenting data from English practice to support claim of abolition based on disparate impact on women). Both Horder and Estrich rely upon a disparate impact argument, Estrich apparently relying upon sentencing data in California, Horder on data from Britain as a whole. See id. at 187-88; Estrich, supra note 43; see also Dressler, Reflections, supra note 24, at 735-37 (suggesting, albeit rejecting, argument that abolition is plausible utilitarian position because of gender bias). My argument is not based on statistical impact nor on utilitarian premises.
54. See JEREMY HORDER, PROVOCATION AND RESPONSIBILITY 186-87 (1992) (presenting data from English practice to support claim of abolition based on disparate impact on women). Both Horder and Estrich rely upon a disparate impact argument, Estrich apparently relying upon sentencing data in California, Horder on data from Britain as a whole. See id. at 187-88; Estrich, supra note 43; see also Dressler, Reflections, supra note 24, at 735-37 (suggesting, albeit rejecting, argument that abolition is plausible utilitarian position because of gender bias). My argument is not based on statistical impact nor on utilitarian premises.
55. The classic statement of this controversy appears in Dressler, Provocation, supra note 24, at 467-72.
56. See id. at 467 ("[T]he trend in England and the United States of America is to treat the defense as an excuse, focusing less on the decedent's wrongful conduct and more on the accused's lack of self-control.").
57. The MPC aspired to be an "ideal penal code." See Herbert Wechsler, A Thoughtful Code of Substantive Law, 45 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 524, 525 (1954-55),
58. quoted in Herbert Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 COLUM. L. REV. 1425, 1427 (1968).
59. See Dressler, Reflections, supra note 24, at 733 ("The rigid common law categories of 'adequate provocation' have largely given way to the view that the issue is one for the jury to decide.").
60. The drafters articulated their intent this way: [T]hat the provocative circumstance must be sufficient to deprive a reasonable or an ordinary man of self-control, leaves much to be desired since it totally excludes any attention to the special situation of the actor. . . . [F]ormulation in the draft affords sufficient flexibility to differentiate between those special factors in the actor's situation which should be deemed material . . . and those which properly should be ignored. MODEL PENAL CODE § 201.3 commentary at 47-48 (Tentative Draft 1959) [hereinafter Tentative Draft].
61. People v. Patterson, 347 N.E.2d 898, 908 (N.Y. 1976), aff'd, Patterson v. New York, 432 U.S. 197 (1977).
62. LAFAVE & SCOTT, supra note 14, at 660.
63. Today, eleven states and two territories have adopted, in whole or in part, the MPC "extreme emotional distress" formulation. For a list of the states and the relevant statutes, see infra note 88. For a comprehensive analysis of the particular nuances and differing formulations of these statutes, see PAUL H. ROBINSON, 1 CRIMINAL LAW DEFENSES § 102(a) (1984 & Supp. 1997).
64. Academic commentary during the 1970s and 1980s almost uniformly praised the MPC's "subjectification" of the defense. See, e.g., Dolores A. Donovan & Stephanie M. Wildman, Is the Reasonable Man Obsolete? A Critical Perspective on Self-Defense and Provocation, 14 LOY. L.A. L. REV. 435, 449-50, 462 (1981) (arguing for elimination of "reasonable excuse or explanation" limitation); Richard Singer, The Resurgence of Mens Rea: I - Provocation, Emotional Disturbance, and the Model Penal Code, 27 B.C. L. REV. 243, 317-22 (1986) (discussing legal commentary).
65. Academic commentary during the 1970s and 1980s almost uniformly praised the MPC's "subjectification" of the defense. See, e.g., Dolores A. Donovan & Stephanie M. Wildman, Is the Reasonable Man Obsolete? A Critical Perspective on Self-Defense and Provocation, 14 LOY. L.A. L. REV. 435, 449-50, 462 (1981) (arguing for elimination of "reasonable excuse or explanation" limitation); Richard Singer, The Resurgence of Mens Rea: I - Provocation, Emotional Disturbance, and the Model Penal Code, 27 B.C. L. REV. 243, 317-22 (1986) (discussing legal commentary).
66. See, e.g., People v. Pouncey, 471 N.W.2d 346, 350 (Mich. 1991) (refusing to adopt common law's "mere words" rule based on theory, found quite clearly in MPC commentary, that there are some "'emotions so intense that they distort the very process of choosing'") (citation omitted); State v. Crisantos, 508 A.2d 167, 170 n.2, 172 (N.J. 1986) (noting that New Jersey rejected EED formula but relying upon MPC commentary for approach that is flexible and nonformulaic); Commonwealth v. McCusker, 292 A.2d 286, 290 (Pa. 1972) (adopting "slow burn" rule in non-MPC jurisdiction similar to rule advocated in MPC commentary).
67. Although the MPC's provocation formula did not prompt mass legislative conversion, its impact within the academic community has far outstripped its legislative reality. Indeed, if casebooks are any measure, the MPC's EED approach is taught in every criminal law classroom in America. See, e.g., GEORGE E. DIX & M. MICHAEL SHARLOT, CRIMINAL LAW: CASES AND MATERIALS 430-42 (4th ed. 1996); SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 416-37 (6th ed. 1995); JOHN KAPLAN ET AL., CRIMINAL LAW: CASES AND MATERIALS 443-44, 447-49 (3d ed. 1996); LOW ET AL., supra note 1, at 896-903; ROBINSON, supra note 25, at 612-19.
68. Although the MPC's provocation formula did not prompt mass legislative conversion, its impact within the academic community has far outstripped its legislative reality. Indeed, if casebooks are any measure, the MPC's EED approach is taught in every criminal law classroom in America. See, e.g., GEORGE E. DIX & M. MICHAEL SHARLOT, CRIMINAL LAW: CASES AND MATERIALS 430-42 (4th ed. 1996); SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 416-37 (6th ed. 1995); JOHN KAPLAN ET AL., CRIMINAL LAW: CASES AND MATERIALS 443-44, 447-49 (3d ed. 1996); LOW ET AL., supra note 1, at 896-903; ROBINSON, supra note 25, at 612-19.
69. Although the MPC's provocation formula did not prompt mass legislative conversion, its impact within the academic community has far outstripped its legislative reality. Indeed, if casebooks are any measure, the MPC's EED approach is taught in every criminal law classroom in America. See, e.g., GEORGE E. DIX & M. MICHAEL SHARLOT, CRIMINAL LAW: CASES AND MATERIALS 430-42 (4th ed. 1996); SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 416-37 (6th ed. 1995); JOHN KAPLAN ET AL., CRIMINAL LAW: CASES AND MATERIALS 443-44, 447-49 (3d ed. 1996); LOW ET AL., supra note 1, at 896-903; ROBINSON, supra note 25, at 612-19.
70. Although the MPC's provocation formula did not prompt mass legislative conversion, its impact within the academic community has far outstripped its legislative reality. Indeed, if casebooks are any measure, the MPC's EED approach is taught in every criminal law classroom in America. See, e.g., GEORGE E. DIX & M. MICHAEL SHARLOT, CRIMINAL LAW: CASES AND MATERIALS 430-42 (4th ed. 1996); SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 416-37 (6th ed. 1995); JOHN KAPLAN ET AL., CRIMINAL LAW: CASES AND MATERIALS 443-44, 447-49 (3d ed. 1996); LOW ET AL., supra note 1, at 896-903; ROBINSON, supra note 25, at 612-19.
71. See HORDER, supra note 44, at ch. 2.
72. See Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. CAL. REV. L. & WOMEN'S STUD. 71, 80 (1992) (citing Note, Manslaughter and the Adequacy of Provocation: The Reasonableness of the Reasonable Man, 106 U. PA. L. REV. 1021, 1023-24 (1958), on "nineteenth century four").
73. See Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. CAL. REV. L. & WOMEN'S STUD. 71, 80 (1992) (citing Note, Manslaughter and the Adequacy of Provocation: The Reasonableness of the Reasonable Man, 106 U. PA. L. REV. 1021, 1023-24 (1958), on "nineteenth century four").
74. See KADISH & SCHULHOFER, supra note 55, at 413 ("[T]He long-standing common law rule . . . permits the jury to find adequate provocation only in a few narrowly defined circumstances."). For a comprehensive understanding of the categories and limiting rules, see HORDER, supra note 44, at ch. 2; Ashworth, supra note 40, at 293.
75. See HORDER, supra note 44, at 97-99.
76. See id.
77. Thus, a defendant who killed in response to adultery (a breach of a property relation between husband and wife at common law) was entitled to claim the defense, while a defendant who observed the infidelity of his fiancée, to whom there was no legal relationship, was not entitled to the defense. See Dressler, Provocation, supra note 24, at 474. From the perspective of "self-control," of course, this distinction makes little sense.
78. See Coker, supra note 57, at 72 ("[S]cholars repeatedly refer to adultery as the paradigm example of provocation . . . .").
79. The story of adultery's grounding in older property norms has been told elsewhere and need not be repeated here. See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 221-22 (1993) (discussing "unwritten" law that found "justifiable" killing of unfaithful wives' lovers); see also KAPLAN ET AL., supra note 55, at 427-31; Laurie J. Taylor, Comment, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 UCLA L. REV. 1679, 1694-95 (1986).
80. The story of adultery's grounding in older property norms has been told elsewhere and need not be repeated here. See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 221-22 (1993) (discussing "unwritten" law that found "justifiable" killing of unfaithful wives' lovers); see also KAPLAN ET AL., supra note 55, at 427-31; Laurie J. Taylor, Comment, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 UCLA L. REV. 1679, 1694-95 (1986).
81. The story of adultery's grounding in older property norms has been told elsewhere and need not be repeated here. See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 221-22 (1993) (discussing "unwritten" law that found "justifiable" killing of unfaithful wives' lovers); see also KAPLAN ET AL., supra note 55, at 427-31; Laurie J. Taylor, Comment, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 UCLA L. REV. 1679, 1694-95 (1986).
82. See Dressler, Provocation, supra note 24, at 480 ("Confusion surrounds the provocation defense."); Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591, 636 (1981) ("[T]here exists no convincing interpretation of reasonable provocation.");
83. See Dressler, Provocation, supra note 24, at 480 ("Confusion surrounds the provocation defense."); Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591, 636 (1981) ("[T]here exists no convincing interpretation of reasonable provocation.");
84. Glanville Williams, Provocation and the Reasonable Man, 1954 CRIM. L. REV. 740, 741-42 (raising fundamental questions about theory of provocation).
85. See Coker, supra note 57, at 78 (arguing that provocation defense protects batterers); Robert B. Mison, Comment, Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation, 80 CAL. L. REV. 133, 135-36 (1992) (arguing that provocation defense is homophobic); Taylor, supra note 63, at 1689-92 (arguing that provocation defense applies male standard of reasonableness).
86. The offense of "manslaughter" is specifically defined by the MPC as something "other than" and "lesser than" murder. See MODEL PENAL CODE § 210.3 (1985) (manslaughter); id. § 210.2 (murder). The Code's commentaries and its penalties support that view: While a murder verdict may yield a sentence of life imprisonment, the maximum Code penalty for manslaughter is 10 years. See id. § 210.3; see also DEL. CODE ANN. tit. 11, §§ 632, 4205 (1995) (10-year maximum); HAW. REV. STAT. §§ 707-702, 706-660 (1988) (same). Actual time served for most manslaughter offenses appears to have remained steady at approximately five to eight years. See CRAIG PERKINS, BUREAU OF JUSTICE STATISTICS, OFFICE OF JUSTICE PROGRAMS, U.S. DEP'T OF JUSTICE, NATIONAL CORRECTIONS REPORTING PROGRAM, 1992, at 46 tbl.2-12 (1994) (reporting 61 months mean time served based on mean sentence of 136 months for nonnegligent manslaughter); see also PATRICK A. LANGAN & JOHN M. DAWSON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPOUSE MURDER DEFENDANTS IN LARGE URBAN COUNTIES at iv (Sept. 1995) (showing average time served of six to eight years in spousal murder cases yielding nonnegligent manslaughter disposition). However, legislatively prescribed maximums for manslaughter sentences have been gradually rising in MPC and other states. See, e.g., KY. REV. STAT. ANN. §§ 507.030, 532.060 (Banks-Baldwin 1994) (20-year maximum); OR. REV. STAT. §§ 163.118, 161.605 (1995) (20-year maximum).
87. The offense of "manslaughter" is specifically defined by the MPC as something "other than" and "lesser than" murder. See MODEL PENAL CODE § 210.3 (1985) (manslaughter); id. § 210.2 (murder). The Code's commentaries and its penalties support that view: While a murder verdict may yield a sentence of life imprisonment, the maximum Code penalty for manslaughter is 10 years. See id. § 210.3; see also DEL. CODE ANN. tit. 11, §§ 632, 4205 (1995) (10-year maximum); HAW. REV. STAT. §§ 707-702, 706-660 (1988) (same). Actual time served for most manslaughter offenses appears to have remained steady at approximately five to eight years. See CRAIG PERKINS, BUREAU OF JUSTICE STATISTICS, OFFICE OF JUSTICE PROGRAMS, U.S. DEP'T OF JUSTICE, NATIONAL CORRECTIONS REPORTING PROGRAM, 1992, at 46 tbl.2-12 (1994) (reporting 61 months mean time served based on mean sentence of 136 months for nonnegligent manslaughter); see also PATRICK A. LANGAN & JOHN M. DAWSON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPOUSE MURDER DEFENDANTS IN LARGE URBAN COUNTIES at iv (Sept. 1995) (showing average time served of six to eight years in spousal murder cases yielding nonnegligent manslaughter disposition). However, legislatively prescribed maximums for manslaughter sentences have been gradually rising in MPC and other states. See, e.g., KY. REV. STAT. ANN. §§ 507.030, 532.060 (Banks-Baldwin 1994) (20-year maximum); OR. REV. STAT. §§ 163.118, 161.605 (1995) (20-year maximum).
88. The offense of "manslaughter" is specifically defined by the MPC as something "other than" and "lesser than" murder. See MODEL PENAL CODE § 210.3 (1985) (manslaughter); id. § 210.2 (murder). The Code's commentaries and its penalties support that view: While a murder verdict may yield a sentence of life imprisonment, the maximum Code penalty for manslaughter is 10 years. See id. § 210.3; see also DEL. CODE ANN. tit. 11, §§ 632, 4205 (1995) (10-year maximum); HAW. REV. STAT. §§ 707-702, 706-660 (1988) (same). Actual time served for most manslaughter offenses appears to have remained steady at approximately five to eight years. See CRAIG PERKINS, BUREAU OF JUSTICE STATISTICS, OFFICE OF JUSTICE PROGRAMS, U.S. DEP'T OF JUSTICE, NATIONAL CORRECTIONS REPORTING PROGRAM, 1992, at 46 tbl.2-12 (1994) (reporting 61 months mean time served based on mean sentence of 136 months for nonnegligent manslaughter); see also PATRICK A. LANGAN & JOHN M. DAWSON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPOUSE MURDER DEFENDANTS IN LARGE URBAN COUNTIES at iv (Sept. 1995) (showing average time served of six to eight years in spousal murder cases yielding nonnegligent manslaughter disposition). However, legislatively prescribed maximums for manslaughter sentences have been gradually rising in MPC and other states. See, e.g., KY. REV. STAT. ANN. §§ 507.030, 532.060 (Banks-Baldwin 1994) (20-year maximum); OR. REV. STAT. §§ 163.118, 161.605 (1995) (20-year maximum).
89. The offense of "manslaughter" is specifically defined by the MPC as something "other than" and "lesser than" murder. See MODEL PENAL CODE § 210.3 (1985) (manslaughter); id. § 210.2 (murder). The Code's commentaries and its penalties support that view: While a murder verdict may yield a sentence of life imprisonment, the maximum Code penalty for manslaughter is 10 years. See id. § 210.3; see also DEL. CODE ANN. tit. 11, §§ 632, 4205 (1995) (10-year maximum); HAW. REV. STAT. §§ 707-702, 706-660 (1988) (same). Actual time served for most manslaughter offenses appears to have remained steady at approximately five to eight years. See CRAIG PERKINS, BUREAU OF JUSTICE STATISTICS, OFFICE OF JUSTICE PROGRAMS, U.S. DEP'T OF JUSTICE, NATIONAL CORRECTIONS REPORTING PROGRAM, 1992, at 46 tbl.2-12 (1994) (reporting 61 months mean time served based on mean sentence of 136 months for nonnegligent manslaughter); see also PATRICK A. LANGAN & JOHN M. DAWSON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPOUSE MURDER DEFENDANTS IN LARGE URBAN COUNTIES at iv (Sept. 1995) (showing average time served of six to eight years in spousal murder cases yielding nonnegligent manslaughter disposition). However, legislatively prescribed maximums for manslaughter sentences have been gradually rising in MPC and other states. See, e.g., KY. REV. STAT. ANN. §§ 507.030, 532.060 (Banks-Baldwin 1994) (20-year maximum); OR. REV. STAT. §§ 163.118, 161.605 (1995) (20-year maximum).
90. The offense of "manslaughter" is specifically defined by the MPC as something "other than" and "lesser than" murder. See MODEL PENAL CODE § 210.3 (1985) (manslaughter); id. § 210.2 (murder). The Code's commentaries and its penalties support that view: While a murder verdict may yield a sentence of life imprisonment, the maximum Code penalty for manslaughter is 10 years. See id. § 210.3; see also DEL. CODE ANN. tit. 11, §§ 632, 4205 (1995) (10-year maximum); HAW. REV. STAT. §§ 707-702, 706-660 (1988) (same). Actual time served for most manslaughter offenses appears to have remained steady at approximately five to eight years. See CRAIG PERKINS, BUREAU OF JUSTICE STATISTICS, OFFICE OF JUSTICE PROGRAMS, U.S. DEP'T OF JUSTICE, NATIONAL CORRECTIONS REPORTING PROGRAM, 1992, at 46 tbl.2-12 (1994) (reporting 61 months mean time served based on mean sentence of 136 months for nonnegligent manslaughter); see also PATRICK A. LANGAN & JOHN M. DAWSON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPOUSE MURDER DEFENDANTS IN LARGE URBAN COUNTIES at iv (Sept. 1995) (showing average time served of six to eight years in spousal murder cases yielding nonnegligent manslaughter disposition). However, legislatively prescribed maximums for manslaughter sentences have been gradually rising in MPC and other states. See, e.g., KY. REV. STAT. ANN. §§ 507.030, 532.060 (Banks-Baldwin 1994) (20-year maximum); OR. REV. STAT. §§ 163.118, 161.605 (1995) (20-year maximum).
91. The offense of "manslaughter" is specifically defined by the MPC as something "other than" and "lesser than" murder. See MODEL PENAL CODE § 210.3 (1985) (manslaughter); id. § 210.2 (murder). The Code's commentaries and its penalties support that view: While a murder verdict may yield a sentence of life imprisonment, the maximum Code penalty for manslaughter is 10 years. See id. § 210.3; see also DEL. CODE ANN. tit. 11, §§ 632, 4205 (1995) (10-year maximum); HAW. REV. STAT. §§ 707-702, 706-660 (1988) (same). Actual time served for most manslaughter offenses appears to have remained steady at approximately five to eight years. See CRAIG PERKINS, BUREAU OF JUSTICE STATISTICS, OFFICE OF JUSTICE PROGRAMS, U.S. DEP'T OF JUSTICE, NATIONAL CORRECTIONS REPORTING PROGRAM, 1992, at 46 tbl.2-12 (1994) (reporting 61 months mean time served based on mean sentence of 136 months for nonnegligent manslaughter); see also PATRICK A. LANGAN & JOHN M. DAWSON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPOUSE MURDER DEFENDANTS IN LARGE URBAN COUNTIES at iv (Sept. 1995) (showing average time served of six to eight years in spousal murder cases yielding nonnegligent manslaughter disposition). However, legislatively prescribed maximums for manslaughter sentences have been gradually rising in MPC and other states. See, e.g., KY. REV. STAT. ANN. §§ 507.030, 532.060 (Banks-Baldwin 1994) (20-year maximum); OR. REV. STAT. §§ 163.118, 161.605 (1995) (20-year maximum).
92. The offense of "manslaughter" is specifically defined by the MPC as something "other than" and "lesser than" murder. See MODEL PENAL CODE § 210.3 (1985) (manslaughter); id. § 210.2 (murder). The Code's commentaries and its penalties support that view: While a murder verdict may yield a sentence of life imprisonment, the maximum Code penalty for manslaughter is 10 years. See id. § 210.3; see also DEL. CODE ANN. tit. 11, §§ 632, 4205 (1995) (10-year maximum); HAW. REV. STAT. §§ 707-702, 706-660 (1988) (same). Actual time served for most manslaughter offenses appears to have remained steady at approximately five to eight years. See CRAIG PERKINS, BUREAU OF JUSTICE STATISTICS, OFFICE OF JUSTICE PROGRAMS, U.S. DEP'T OF JUSTICE, NATIONAL CORRECTIONS REPORTING PROGRAM, 1992, at 46 tbl.2-12 (1994) (reporting 61 months mean time served based on mean sentence of 136 months for nonnegligent manslaughter); see also PATRICK A. LANGAN & JOHN M. DAWSON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPOUSE MURDER DEFENDANTS IN LARGE URBAN COUNTIES at iv (Sept. 1995) (showing average time served of six to eight years in spousal murder cases yielding nonnegligent manslaughter disposition). However, legislatively prescribed maximums for manslaughter sentences have been gradually rising in MPC and other states. See, e.g., KY. REV. STAT. ANN. §§ 507.030, 532.060 (Banks-Baldwin 1994) (20-year maximum); OR. REV. STAT. §§ 163.118, 161.605 (1995) (20-year maximum).
93. Compare Commonwealth v. McCusker, 292 A.2d 286 (Pa. 1972) (adopting cumulative provocation rule), with State v. Gadson, 442 S.E.2d 594 (S.C. 1994) (holding that passage of time negates heat of passion).
94. Compare People v. Pouncey, 471 N.W.2d 346 (Mich. 1991) (refusing to adopt rule that words may never be adequate provocation), with Metheney v. State, 538 N.E.2d 1202 (Ind. 1992) ("[M]ere words alone cannot constitute sufficient provocation.").
95. State v. Utz, 513 A.2d 1191, 1192 (Conn. 1986).
96. See id.
97. See id. at 1192-93.
98. See id. at 1194.
99. State v. Wille, 858 P.2d 128, 130 (Or. 1993).
100. Id.
101. See id. at 130-31 ("The trial court advised the jury that the EED defense could reduce the crime of intentional murder to manslaughter, [but was not a defense to felony murder].").
102. Smith v. Commonwealth, 734 S.W.2d 437, 440 (Ky. 1987).
103. Id.
104. See id.
105. See id. at 449.
106. This conclusion holds true for MPC states and the "mixed" jurisdictions that I studied. Sixty-five percent of all MPC claims (86/133) in my data set involved a "separated couple" as compared to 47% of claims (63/133) involving infidelity. See supra note 454 (defining "separated couple"). Seventy percent (37/53) of all claims in "mixed" jurisdictions involved a "separated couple" as compared to 47% (25/53) involving infidelity. This also holds true for claims that reached juries. See infra Table A (reporting that in MPC states 67% (66/99) of claims reaching juries involved element of separation as compared to 54% (53/99) that involved infidelity); see id. (reporting in mixed jurisdictions that 66% (23/35) of claims reaching juries involved separation as compared to 49% (17/35) involving infidelity). But cf. id (reporting that in traditional jurisdictions, separation appears in only 39% (15/38) of cases reaching juries as compared to infidelity, which was involved in 45% (17/38) of cases). Often, of course, these factors go hand in hand: One sees claims that an ex-spouse or ex-partner had begun a new sexual relationship that inspired the violence. That these cases involve "infidelity" does not diminish the fact that they also involve separation.
107. See Mahoney, supra note 4, at 71-79.
108. It is important not to confuse the sex ratio of homicides involving separated couples with the sex ratio in homicide generally or intimate homicide itself. Relative to all homicides, females are more than nine times as likely to be killed by a husband, ex-husband, or boyfriend as are men to be killed by a wife, ex-wife, or girlfriend. See RONET BACHMAN & LINDA E. SALTZMAN, U.S. DEP'T OF JUSTICE, VIOLENCE AGAINST WOMEN: ESTIMATES FROM THE REDESIGNED SURVEY 4 (1995) (reporting that 28% of female homicide victims versus 3% of male victims were killed by opposite-sex partners). Within the universe of intimate homicide, however, the precise sex distribution of perpetrators is a subject of some controversy. In Anglo-Saxon countries generally, men are far more likely to kill their married female partners than the reverse (in Canada, the ratio is 3 to 1; in England, the ratio is 4 to 1; in Scotland, the ratio is 2.5 to 1). Data for the United States is based on studies of selected cities showing rates as low as 1 to 1. See Margo I. Wilson & Martin Daly, Who Kills Whom in Spouse Killings?: On the Exceptional Sex Ratio of Spousal Homicides in the United States, 30 CRIMINOLOGY 189, 191 tbl.1 (1992); see also Franklin Zimring et al., Intimate Violence: A Study of Intersexual Homicide in Chicago, 50 U. CHI. L. REV. 910, 914 (1983) (reporting that "the war between the sexes takes its casualties in almost equal measure [in Chicago in 1981]"). This discrepancy may reflect the peculiar demographics of urban-based studies; in any event, such comparisons should not be read to imply symmetry in the circumstances of the killings. Existing studies tend to suggest, for example, that women often kill in self-defense, a factor that might well exclude them from cases in which provocation is claimed. See LANGAN & DAWSON, supra note 66, at iv (noting that in 44% of cases studied in which wives kill husbands, killing occurred at or about time of physical assault upon wife by husband as opposed to 10% of husband defendants); see also Angela Browne & Kirk R. Williams, Exploring the Effect of Resource Availability and the Likelihood of Female-Perpetrated Homicides, 23 L. & SOC'Y REV. 75, 76 (1989) (finding that homicides by women are more likely to be in response to male violence than male-perpetrated homicides are to be in response to female violence); Wilson & Daly, supra, at 206 (emphasizing that men "often hunt down and kill spouses who have left them [and] . . . . kill in response to revelations of wifely infidelity; women almost never respond similarly . . . . Men often kill wives after subjecting them to lengthy periods of coercive abuse and assaults; the roles in such cases are seldom if ever reversed.").
109. It is important not to confuse the sex ratio of homicides involving separated couples with the sex ratio in homicide generally or intimate homicide itself. Relative to all homicides, females are more than nine times as likely to be killed by a husband, ex-husband, or boyfriend as are men to be killed by a wife, ex-wife, or girlfriend. See RONET BACHMAN & LINDA E. SALTZMAN, U.S. DEP'T OF JUSTICE, VIOLENCE AGAINST WOMEN: ESTIMATES FROM THE REDESIGNED SURVEY 4 (1995) (reporting that 28% of female homicide victims versus 3% of male victims were killed by opposite-sex partners). Within the universe of intimate homicide, however, the precise sex distribution of perpetrators is a subject of some controversy. In Anglo-Saxon countries generally, men are far more likely to kill their married female partners than the reverse (in Canada, the ratio is 3 to 1; in England, the ratio is 4 to 1; in Scotland, the ratio is 2.5 to 1). Data for the United States is based on studies of selected cities showing rates as low as 1 to 1. See Margo I. Wilson & Martin Daly, Who Kills Whom in Spouse Killings?: On the Exceptional Sex Ratio of Spousal Homicides in the United States, 30 CRIMINOLOGY 189, 191 tbl.1 (1992); see also Franklin Zimring et al., Intimate Violence: A Study of Intersexual Homicide in Chicago, 50 U. CHI. L. REV. 910, 914 (1983) (reporting that "the war between the sexes takes its casualties in almost equal measure [in Chicago in 1981]"). This discrepancy may reflect the peculiar demographics of urban-based studies; in any event, such comparisons should not be read to imply symmetry in the circumstances of the killings. Existing studies tend to suggest, for example, that women often kill in self-defense, a factor that might well exclude them from cases in which provocation is claimed. See LANGAN & DAWSON, supra note 66, at iv (noting that in 44% of cases studied in which wives kill husbands, killing occurred at or about time of physical assault upon wife by husband as opposed to 10% of husband defendants); see also Angela Browne & Kirk R. Williams, Exploring the Effect of Resource Availability and the Likelihood of Female-Perpetrated Homicides, 23 L. & SOC'Y REV. 75, 76 (1989) (finding that homicides by women are more likely to be in response to male violence than male-perpetrated homicides are to be in response to female violence); Wilson & Daly, supra,
110. It is important not to confuse the sex ratio of homicides involving separated couples with the sex ratio in homicide generally or intimate homicide itself. Relative to all homicides, females are more than nine times as likely to be killed by a husband, ex-husband, or boyfriend as are men to be killed by a wife, ex-wife, or girlfriend. See RONET BACHMAN & LINDA E. SALTZMAN, U.S. DEP'T OF JUSTICE, VIOLENCE AGAINST WOMEN: ESTIMATES FROM THE REDESIGNED SURVEY 4 (1995) (reporting that 28% of female homicide victims versus 3% of male victims were killed by opposite-sex partners). Within the universe of intimate homicide, however, the precise sex distribution of perpetrators is a subject of some controversy. In Anglo-Saxon countries generally, men are far more likely to kill their married female partners than the reverse (in Canada, the ratio is 3 to 1; in England, the ratio is 4 to 1; in Scotland, the ratio is 2.5 to 1). Data for the United States is based on studies of selected cities showing rates as low as 1 to 1. See Margo I. Wilson & Martin Daly, Who Kills Whom in Spouse Killings?: On the Exceptional Sex Ratio of Spousal Homicides in the United States, 30 CRIMINOLOGY 189, 191 tbl.1 (1992); see also Franklin Zimring et al., Intimate Violence: A Study of Intersexual Homicide in Chicago, 50 U. CHI. L. REV. 910, 914 (1983) (reporting that "the war between the sexes takes its casualties in almost equal measure [in Chicago in 1981]"). This discrepancy may reflect the peculiar demographics of urban-based studies; in any event, such comparisons should not be read to imply symmetry in the circumstances of the killings. Existing studies tend to suggest, for example, that women often kill in self-defense, a factor that might well exclude them from cases in which provocation is claimed. See LANGAN & DAWSON, supra note 66, at iv (noting that in 44% of cases studied in which wives kill husbands, killing occurred at or about time of physical assault upon wife by husband as opposed to 10% of husband defendants); see also Angela Browne & Kirk R. Williams, Exploring the Effect of Resource Availability and the Likelihood of Female-Perpetrated Homicides, 23 L. & SOC'Y REV. 75, 76 (1989) (finding that homicides by women are more likely to be in response to male violence than male-perpetrated homicides are to be in response to female violence); Wilson & Daly, supra, at 206 (emphasizing that men "often hunt down and kill spouses who have left them [and] . . . . kill in response to revelations of wifely infidelity; women almost never respond similarly . . . . Men often kill wives after subjecting them to lengthy periods of coercive abuse and assaults; the roles in such cases are seldom if ever reversed.").
111. It is important not to confuse the sex ratio of homicides involving separated couples with the sex ratio in homicide generally or intimate homicide itself. Relative to all homicides, females are more than nine times as likely to be killed by a husband, ex-husband, or boyfriend as are men to be killed by a wife, ex-wife, or girlfriend. See RONET BACHMAN & LINDA E. SALTZMAN, U.S. DEP'T OF JUSTICE, VIOLENCE AGAINST WOMEN: ESTIMATES FROM THE REDESIGNED SURVEY 4 (1995) (reporting that 28% of female homicide victims versus 3% of male victims were killed by opposite-sex partners). Within the universe of intimate homicide, however, the precise sex distribution of perpetrators is a subject of some controversy. In Anglo-Saxon countries generally, men are far more likely to kill their married female partners than the reverse (in Canada, the ratio is 3 to 1; in England, the ratio is 4 to 1; in Scotland, the ratio is 2.5 to 1). Data for the United States is based on studies of selected cities showing rates as low as 1 to 1. See Margo I. Wilson & Martin Daly, Who Kills Whom in Spouse Killings?: On the Exceptional Sex Ratio of Spousal Homicides in the United States, 30 CRIMINOLOGY 189, 191 tbl.1 (1992); see also Franklin Zimring et al., Intimate Violence: A Study of Intersexual Homicide in Chicago, 50 U. CHI. L. REV. 910, 914 (1983) (reporting that "the war between the sexes takes its casualties in almost equal measure [in Chicago in 1981]"). This discrepancy may reflect the peculiar demographics of urban-based studies; in any event, such comparisons should not be read to imply symmetry in the circumstances of the killings. Existing studies tend to suggest, for example, that women often kill in self-defense, a factor that might well exclude them from cases in which provocation is claimed. See LANGAN & DAWSON, supra note 66, at iv (noting that in 44% of cases studied in which wives kill husbands, killing occurred at or about time of physical assault upon wife by husband as opposed to 10% of husband defendants); see also Angela Browne & Kirk R. Williams, Exploring the Effect of Resource Availability and the Likelihood of Female-Perpetrated Homicides, 23 L. & SOC'Y REV. 75, 76 (1989) (finding that homicides by women are more likely to be in response to male violence than male-perpetrated homicides are to be in response to female violence); Wilson & Daly, supra, at 206 (emphasizing that men "often hunt down and kill spouses who have left them [and] . . . . kill in response to revelations of wifely infidelity; women almost never respond similarly . . . . Men often kill wives after subjecting them to lengthy periods of coercive abuse and assaults; the roles in such cases are seldom if ever reversed.").
112. See George W. Barnard et al., Till Death Do Us Part: A Study of Spouse Murder, 10 BULL. AM. ACAD. PSYCHIATRY & L. 271, 274 tbl.2 (1982) (finding that 56.5% of wife killers studied were estranged from their wives as opposed to 9.1% of husband killers); Jacquelyn C. Campbell, "If I Can't Have You, No One Can": Power and Control in Homicide of Female Partners, in FEMICIDE 99, 106-07 (Jill Radford & Diana E.H. Russell eds., 1992) (reporting study of Dayton, Ohio murder police files showing that of 33 intimate murders by former or present husbands, boyfriends, or casual lovers, 48% involved separation (5 former casual sex partners plus 11 estranged husbands or boyfriends)); Barbara Hart, Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody Mediation, 7 MEDIATION Q. 317, 324 (1990) ("Almost a quarter of the women killed by their male partners in one study in Philadelphia and Chicago were separated or divorced from the men who killed them; 28.6 percent of the women were attempting to end the relationship when they were killed.") (citation omitted); Margo Wilson & Martin Daly, Spousal Homicide Risk and Estrangement, 8 VIOLENCE & VICTIMS 3, 4 (1993) (reporting Australian study finding that 45% of women slain by husbands "had left their killers or were in the process of leaving").
113. See George W. Barnard et al., Till Death Do Us Part: A Study of Spouse Murder, 10 BULL. AM. ACAD. PSYCHIATRY & L. 271, 274 tbl.2 (1982) (finding that 56.5% of wife killers studied were estranged from their wives as opposed to 9.1% of husband killers); Jacquelyn C. Campbell, "If I Can't Have You, No One Can": Power and Control in Homicide of Female Partners, in FEMICIDE 99, 106-07 (Jill Radford & Diana E.H. Russell eds., 1992) (reporting study of Dayton, Ohio murder police files showing that of 33 intimate murders by former or present husbands, boyfriends, or casual lovers, 48% involved separation (5 former casual sex partners plus 11 estranged husbands or boyfriends)); Barbara Hart, Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody Mediation, 7 MEDIATION Q. 317, 324 (1990) ("Almost a quarter of the women killed by their male partners in one study in Philadelphia and Chicago were separated or divorced from the men who killed them; 28.6 percent of the women were attempting to end the relationship when they were killed.") (citation omitted); Margo Wilson & Martin Daly, Spousal Homicide Risk and Estrangement, 8 VIOLENCE & VICTIMS 3, 4 (1993) (reporting Australian study finding that 45% of women slain by husbands "had left their killers or were in the process of leaving").
114. See George W. Barnard et al., Till Death Do Us Part: A Study of Spouse Murder, 10 BULL. AM. ACAD. PSYCHIATRY & L. 271, 274 tbl.2 (1982) (finding that 56.5% of wife killers studied were estranged from their wives as opposed to 9.1% of husband killers); Jacquelyn C. Campbell, "If I Can't Have You, No One Can": Power and Control in Homicide of Female Partners, in FEMICIDE 99, 106-07 (Jill Radford & Diana E.H. Russell eds., 1992) (reporting study of Dayton, Ohio murder police files showing that of 33 intimate murders by former or present husbands, boyfriends, or casual lovers, 48% involved separation (5 former casual sex partners plus 11 estranged husbands or boyfriends)); Barbara Hart, Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody Mediation, 7 MEDIATION Q. 317, 324 (1990) ("Almost a quarter of the women killed by their male partners in one study in Philadelphia and Chicago were separated or divorced from the men who killed them; 28.6 percent of the women were attempting to end the relationship when they were killed.") (citation omitted); Margo Wilson & Martin Daly, Spousal Homicide Risk and Estrangement, 8 VIOLENCE & VICTIMS 3, 4 (1993) (reporting Australian study finding that 45% of women slain by husbands "had left their killers or were in the process of leaving").
115. See George W. Barnard et al., Till Death Do Us Part: A Study of Spouse Murder, 10 BULL. AM. ACAD. PSYCHIATRY & L. 271, 274 tbl.2 (1982) (finding that 56.5% of wife killers studied were estranged from their wives as opposed to 9.1% of husband killers); Jacquelyn C. Campbell, "If I Can't Have You, No One Can": Power and Control in Homicide of Female Partners, in FEMICIDE 99, 106-07 (Jill Radford & Diana E.H. Russell eds., 1992) (reporting study of Dayton, Ohio murder police files showing that of 33 intimate murders by former or present husbands, boyfriends, or casual lovers, 48% involved separation (5 former casual sex partners plus 11 estranged husbands or boyfriends)); Barbara Hart, Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody Mediation, 7 MEDIATION Q. 317, 324 (1990) ("Almost a quarter of the women killed by their male partners in one study in Philadelphia and Chicago were separated or divorced from the men who killed them; 28.6 percent of the women were attempting to end the relationship when they were killed.") (citation omitted); Margo Wilson & Martin Daly, Spousal Homicide Risk and Estrangement, 8 VIOLENCE & VICTIMS 3, 4 (1993) (reporting Australian study finding that 45% of women slain by husbands "had left their killers or were in the process of leaving").
116. Wilson & Daly, supra note 83, at 8. Each country studied (Canada, Australia, the United States (Chicago)) showed a significant increased homicide risk to women who were estranged from their husbands or boyfriends. See id. at 7 tbl.1 (reporting ratio of female to male victims in coresiding versus estranged couples as 3.77 to 9 in Canada, 2.91 to 15.33 in Australia, and 1.02 to 2.25 in Chicago). Because the idea that "separation" may increase the risk of violence is controversial for some, see, e.g., ALAN M. DERSHOWITZ, THE ABUSE EXCUSE 34-35 (1994), it is worth noting that Wilson and Daly are evolutionary psychologists, not radical feminists. On the relationship between sociobiology, libertarianism, and feminism with reference to Wilson and Daly's work, see Case, Of Richard Epstein, supra note 30, at 395-97. See also David M. Buss, Evolution and Human Mating, 18 HARV. J.L. & PUB. POL'Y 537, 538-40 (1995) (discussing evolutionary psychology and male violence).
117. Wilson & Daly, supra note 83, at 8. Each country studied (Canada, Australia, the United States (Chicago)) showed a significant increased homicide risk to women who were estranged from their husbands or boyfriends. See id. at 7 tbl.1 (reporting ratio of female to male victims in coresiding versus estranged couples as 3.77 to 9 in Canada, 2.91 to 15.33 in Australia, and 1.02 to 2.25 in Chicago). Because the idea that "separation" may increase the risk of violence is controversial for some, see, e.g., ALAN M. DERSHOWITZ, THE ABUSE EXCUSE 34-35 (1994), it is worth noting that Wilson and Daly are evolutionary psychologists, not radical feminists. On the relationship between sociobiology, libertarianism, and feminism with reference to Wilson and Daly's work, see Case, Of Richard Epstein, supra note 30, at 395-97. See also David M. Buss, Evolution and Human Mating, 18 HARV. J.L. & PUB. POL'Y 537, 538-40 (1995) (discussing evolutionary psychology and male violence).
118. This number (86/133) is based on my estimate of "separated couples" in the MPC data set (all claims in which the parties are estranged, living apart, divorced, or separated at the time of the killing or in which we know that the provoking party sought to leave). See Appendix A; Table F. Table F shows that 67% (82/122) of male defendant claims as opposed to 36% (4/11) of female defendant claims involved a couple that was "separated" in this sense. These figures (1.9 to 1) are close to the lower end ratios, shown by other social science research, of male versus female killings in estranged situations. See Wilson & Daly, supra note 83, at 7. Note that the number of "separated couples" is actually larger than the number of "separation" claims because some separated defendants' provocation claims may not be based on "separation" in whole or in part. See supra note 454.
119. It is possible, of course, that my data set misses relevant cases. If so, this should not impugn the integrity of my research as long as my methodology proceeds without bias. See Appendix A.
120. An "adult intimate relationship" is defined to include opposite sex as well as same-sex relationships. For more on this definition, see Appendix A.
121. Today, eleven states and two territories have adopted, in whole or in part, the MPC "extreme emotional distress" formulation; Arkansas, ARK. CODE ANN. § 5-10-104(a)(1) (Michie 1993); Connecticut, CONN. GEN. STAT. ANN. §§ 53a-54a(a) (West 1994); Delaware, DEL. CODE ANN. tit. 11, §§ 632(3), 641 (1995); Hawaii, HAW. REV. STAT. ANN. § 707-702(2) (Michie 1995); Kentucky, KY. REV. STAT. ANN. §§ 507.020(1)(a), 507.030(1)(b) (Michie 1985); Montana, MONT. CODE ANN. § 45-5-103(1) (1995); New Hampshire, N.H. REV. STAT. ANN. § 630:2 (1996); New York, N.Y. PENAL LAW §§ 125.20(2), 125.25(1)(a), 125.27(2)(a) (McKinney 1996); North Dakota, N.D. CENT. CODE § 12.1-16-01(2) (1985); Oregon, OR. REV. STAT. §§ 163.115(1 )(a), 163.118(1)(b), 163.135 (1995); Utah, UTAH CODE ANN. § 76-5-205(1)(b) (1995); American Samoa, AM. SAMOA CODE ANN. § 46.3504(a)(2) (1987); and Guam, 9 GUAM CODE ANN. § 16.50(a)(2) (1992). Two of the states - New Hampshire and Utah - have adopted only part of the MPC formulation but are included here to provide the broadest possible coverage. See Singer, supra note 53, at 292-94. The District of Columbia has considered the adoption of the MPC approach by judicial interpretation but has not reached a final decision. See Simpson v. United States, 632 A.2d 374, 377 (D.C. 1993) (discussing dispute about recognition of EED defense). For an analysis of the particular nuances and differing formulations of these statutes, see ROBINSON, supra note 52, § 102(a), at 481 n.9; id. Supp. at 75.
122. The "provoking party" is typically the victim, but not always. Imagine a defendant who finds out that his wife is having an affair and who kills a bystander. The "provoking party" is the wife; the victim is the bystander.
123. For the method by which these jurisdictions were chosen, see Appendix A.
124. The "traditional" state sample is derived from all cases reporting that a provocation claim was made in an intimate homicide case from 1980-95 in the states of Illinois and Alabama. Most states have moved away from the "categories" and associated limiting rules, but Alabama and Illinois are not alone in retaining some or all of them. For a discussion of the factors that led to the choice of Illinois and Alabama, see id.
125. For a description of the common law rules limiting provocation claims, see supra text accompanying notes 57-60.
126. The "mixed" state sample is derived from all cases reporting a provocation claim in an intimate homicide case from 1980-95 in the states of California and Minnesota. "Mixed" states tend to be the norm in the United States. Because these states often follow different mixtures of doctrinal rules, however, it is difficult to compare practices across jurisdictions. For example, if a jurisdiction retains the "words alone" rule but in all other respects looks like a "reform" jurisdiction, one's results would be skewed based on that one particular rule. I have chosen California and Minnesota because their mixture of rules appears similar and representative of moderate reform - some subjectification of the defense but retention of rules such as the "third party" rule (barring use of the defense when the defendant kills someone other than the provoking party). I hope, in further work, to be able to provide a comprehensive survey of the law of traditional and mixed jurisdictions. In this work, however, because my purpose is to identify the changes wrought by legal reform, I have limited my survey to selected jurisdictions. For a discussion of the factors that led to the choices of Minnesota and California, see Appendix A.
127. This included reports that the parties had divorced, were separated, lived apart, or were estranged, as well as reports that the defendant had been ordered to avoid contact with the provoking party or where there was evidence that the provoking party sought to leave or rejected the relationship. For more on the definition of "separation," see id.
128. In a sense, these categories are quite artificial. Indeed, it is possible to describe many of these cases, including cases that involve "another" party, as claims based on attempts by the victim to separate from a relationship hindered by the defendant's efforts at control. For these reasons, I have deliberately avoided the terminology of "separation assault," see Mahoney, supra note 4, at 5-6 & passim, which covers a broader class of cases than the category of "separation" or "departure." I have chosen these categories to isolate the claimed effect of "infidelity" on the legal and rhetorical construction of these cases. For my definition of "separation," see Appendix A.
129. These figures were determined by summing every case in which "separation" or "infidelity" or "physical violence" appeared in the factual circumstances of the cases listed in Appendix B. They do not add up to 100% because some cases involve more than a single factor (e.g., separation and infidelity appear together quite frequently).
130. I chose to conduct the analysis in this way, rather than through a standard regression analysis, because I believe that, to most traditionally trained lawyers, a focus on the "exclusive" categories would be more easily accessible and ultimately more persuasive. I also believe that a more sophisticated statistical analysis might have suggested that my argument is based on a "disparate impact" theory. See supra note 44 (noting other scholars' reliance on disparate impact theories). My argument uses the recurrence of "separation" and of "departure" in these cases to destabilize current understandings of a "passionate murder" long enough to make a normative argument. Without such data, I feared that my analysis could too easily be dismissed as anecdotal. My argument about why reform has failed or how the defense should be reconstructed could as easily be made with 10 cases as with 200. For the statistical validity of the separation and departure proportion, see Appendix A.
131. If there was any doubt about the "separation" aspect of the case, it was coded as "simple infidelity." See, e.g., Lovelace v. Lopes, 632 F. Supp. 306, 308 (D. Conn. 1986) (containing one line suggesting victim had moved to mother's home, and classified as simple infidelity); Estes v. Commonwealth, No. 85-CA-1143-MR, available in LEXIS, States Library, Kycts file (Ky. Ct. App. May 20, 1986) (slip op.) (describing case in which victim is at mother's home, suggesting departure, classified as simple infidelity).
132. For example, the presence of physical violence might be a sufficient reason to reach the jury, without regard to the influence of departure or infidelity. In the case of an overlap between "physical violence" and "other," the case was categorized as "physical violence."
133. For a more rigorous definition of these exclusive categories, see Appendix A.
134. This includes manslaughter dispositions obtained both by plea and jury verdict. See LANGAN & DAWSON, supra note 66, at iii (stating that while 70% of those "arrested . . . for spouse murder were charged with first degree murder, most persons convicted (52%) of spouse murder" were convicted of manslaughter or negligent manslaughter); id. at 6 (stating that 24% of spousal homicide defendants tried and convicted were convicted of voluntary manslaughter and 9% were convicted of negligent manslaughter); id. at 11 (stating that 58% of spousal homicide defendants who pled guilty pled to voluntary manslaughter while 12% pled to negligent manslaughter); id. at 17 (stating that 42% of spouse murder convictions were for nonnegligent manslaughter). These figures do not include divorced couples, nor are the voluntary manslaughter dispositions limited to cases of provoked manslaughter as opposed to reckless manslaughter or manslaughter based on imperfect self-defense.
135. To determine the number of separated couples in my MPC data set, one cannot simply add the "departure" and "separation and infidelity" categories in this table. For example, the departure category only includes those separations known to be initiated by the provoking party. Note that the columns may not add to 100% because of rounding.
136. The numerator in this fraction refers to the total number of claims resulting in jury instructions. The denominator refers to the total number of claims in the data set, whether or not they reached a jury.
137. Not surprisingly, the vast majority of cases in my MPC sample are cases in which the law permitted the jury to reach a manslaughter verdict based on EED, but the jury chose to return a murder verdict.
138. For a similar measure of success, see Holly Maguigan, Battered Women anil Self-Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. PA. L. REV. 379, 406 (1991) (basing empirical study of self-defense claims on question of whether defendant is "able to get to the jury" on self-defense issue).
139. Courts do not ordinarily keep criminal dockets in ways that permit searches for all cases by type of verdict or charge or defense. Cases are filed and compiled in ways that make it easier for courts and lawyers to do their jobs - by case name and number. To find all claims in which a heat of passion defense is raised before or during trial, one would have to cull police files to find all intimate homicides, then follow each police file through to the prosecutor's files and then to the trial transcript and appeal (if any). In short, the effort would be enormous and the result might well be anomalous.
140. For example, if one picked Albany, Hartford, and Portland as one's sample cities, one would achieve results that would tend to suggest that the entire country follows the "reform" approach, a conclusion that is not correct.
141. Most notably the sample leaves out cases resolved by guilty plea or dismissed before trial. See LANGAN & DAWSON, supra note 66, at 5, 11 (indicating that, in spousal homicide cases, 43% of arrests result in a guilty plea and 13% do not lead to prosecution). One might argue that by omitting cases that led to pleas, I have overemphasized the "hard" cases and that is why we are likely to see more "departure/separation" cases than expected. This argument makes several assumptions, however, that are unlikely to hold. First, if my data were skewed toward departure/separation because departure cases were more often appealed or reported, one would expect my overall results to be inconsistent with existing data on separation drawn from other sources. In fact, my results on "separation" are quite consistent with data drawn from other sources. See supra note 85. Second, this argument assumes that separation would have a significant legal impact on the decision to plead when in fact this may not be the case. At least within an MPC or mixed jurisdiction, there is nothing "harder" or "easier" about a case because of departure or separation. Indeed, there is good reason to believe that most of the cases in my MPC and mixed samples would be classified as "easy" provocation claims since the vast majority were never appealed on the provocation question. Third, even if the hard cases going to trial are the ones about "departure" and the easy ones about "infidelity" were pled, this would not account for the role of "departure" in the infidelity cases. Assuming that all of the departure cases that I identify turned out to include infidelity, that would not change my basic conclusion that the role of departure is "ignored" in these cases and that courts and commentators had wrongly assumed that infidelity was the sole determining factor.
142. This applies to studies of trial or appellate cases, based on reported outcomes in civil or criminal contexts. See, e.g., Vicki Schultz, Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 HARV. L. REV. 1749, 1766 n.71 (1990).
143. "Holdings" on provocation typically occur when there has been a failure to instruct on provocation. A sample based on appellate holdings would yield, by definition, very few successful cases. It would also tend to provide a rather skewed picture of legal practice because it would not give any sense of the cases in which juries were actually instructed on provocation.
144. Instead, the cases reached the appellate court for other reasons. See, e.g., State v. Fair, 496 A.2d 461, 462-63 (Conn. 1985) (appealing on grounds that compelled psychiatric examination violated privilege against self-incrimination and that admission of psychiatric testimony based on presentence report was improper).
145. One might argue that appellate cases will inevitably skew results because the facts are told from the prosecution's view when the claim on appeal is insufficient evidence to support the jury's verdict. That is only one, however, of the many types of claims raised on appeal in my data set. Other claims, based on evidentiary objections or the propriety of particular wording of instructions, view the evidence from precisely the opposite direction. There is no reason to believe that there is a single set of biases reflected in the report of factual material.
146. See Appendix A for a discussion of the statistical viability of the comparisons made across jurisdictions.
147. Perry v. Commonwealth, 839 S.W.2d 268, 269 (Ky. 1992).
148. Id. at 270.
149. See id.
150. People v. Guevara, 521 N.Y.S.2d 292, 293 (App. Div. 1987).
151. Id.
152. See also id. at 294 ("The court's charge on extreme emotional disturbance was proper . . . .").
153. I have chosen in what follows to let the data dictate the pronouns. Combining all categories except physical violence, 97% of the MPC defendants are male; to use the term "he or she" in these circumstances would be inaccurate. In physical violence cases, however, where the distribution of sexes is far more even, I have used the term "he or she."
154. State v. Fair, 496 A.2d 461, 462 (Conn. 1985) ("On December 26, 1980, the victim left the defendant, taking the child with her. She notified the defendant on December 28 that she intended to move to Boston and that he would never see their son again.").
155. People v. Fardan, 628 N.E.2d 41, 42 (N.Y. 1993) ("At trial, defendant's principal contention was that he acted under extreme emotional disturbance, brought on by the victim's refusal to have sex, and therefore was liable only for manslaughter and not murder.").
156. Matthews v. Commonwealth, 709 S.W.2d 414, 418-19 (Ky. 1985) (noting that defendant used his wife's "supposedly unjustified bringing of warrants" to explain his emotional state).
157. State v. Dilger, 338 N.W.2d 87, 88 (N.D. 1983) (stating that after argument in bar next door to apartment, victim made two trips bringing defendant's belongings to bar, and defendant was teased that he would have to sleep in bar).
158. See Appendix B (listing MPC "departure" cases).
159. This figure is based on the departure cases that reached juries (26) as compared to the total number of claims that reached juries (99) in the MPC data set. See supra Table B. As a percentage of all claims, reaching juries or not, departures represented 33 of 133, or 25%. See id.
160. It is possible, of course, that appellate reports simply fail to report an affair. I do not claim that these opinions are always factually accurate; on the other hand, I see no reason to believe that there would be systematic bias against reporting infidelities in these cases. Indeed, the cases are far more likely to omit mention of departure or intent to depart unless it is central to the situation triggering an EED claim. Even if it turned out, upon examination of the trial transcripts in these cases, that a significant number involved a third party, that would not undermine my overarching claim about the "legal rationality" of departure. The same reports on which I rely are the ones that lawyers and judges will use to determine the boundaries of the defense. Moreover, my point is not simply to emphasize cases involving departure alone. Even if all of these cases turned out to involve claims of infidelity as well, it would still mean that departure is as significant an element in the cases as infidelity, a conclusion that challenges the law's standard image of intimate homicide and provoking circumstances.
161. The prosecution made the "departure" claim in this case. See People v. Ambrose, 553 N.Y.S.2d 896, 896 (App. Div. 1990) (noting defendant's claims that she killed because of abuse and threats to her child and prosecution's claim that she killed because he was going to "leave her").
162. See, e.g., Perry v. Commonwealth, 839 S.W.2d 268, 269-70 (Ky. 1992) (reporting that defendant claimed extreme emotional disturbance as defense to incident after defendant was served restraining order); Matthews v. Commonwealth, 709 S.W.2d 414, 417-18 (Ky. 1985) (wife's "swearing out warrants," one of which was based on sexual abuse of daughter, was part of marital strife underlying provocation claim). Protective orders figured in a number of cases, although it is not clear in all of them whether the defendant relied upon the orders as part of his EED claim. See, e.g., State v. Wille, 858 P.2d 128, 130 (Or. 1993) (stating that victim had obtained temporary restraining order preventing defendant from entering her residence); see also cases cited infra note 177.
163. See People v. Wood, 568 N.Y.S.2d 651, 652 (App. Div. 1991) (noting defendant's claim at second trial that he snapped, "triggered by his dissatisfaction with the victim who reportedly turned her back on him and went to sleep after they engaged in sexual intercourse"), aff'd, 591 N.E.2d 1178 (N.Y. 1992); see also People v. Fardan, 628 N.E.2d 41, 42 (N.Y. 1993) (defendant claimed victim's refusal to have sex triggered "extreme emotional disturbance").
164. See State v. Reams, 616 P.2d 498, 499 (Or. Ct. App. 1980), aff'd and remanded, 636 P.2d 913 (Or. 1981).
165. See People v. Benedict, 609 N.Y.S.2d 100, 100 (App. Div. 1994) ("At trial - in an attempt to prove that he was acting under extreme emotional disturbance as a defense to the intentional murder charge - defendant explained that he had been arguing with his wife over her suggestion that they separate.").
166. See, e.g., People v. Guevara, 521 N.Y.S.2d 292, 292-94 (App. Div. 1987) (noting that defendant and his wife "argued . . . about her intent to institute a divorce proceeding" and that after fatally beating his wife, defendant searched room for divorce papers); Wille, 858 P.2d at 130 ("Defendant was very upset that his wife had filed for a dissolution.").
167. In all cases classified as "departure," the case reported that the provoking party sought to leave or had left the relationship. This includes a case in which the defendant is the one who actually leaves the home, but it is at the victim/provoking party's initiative. See, e.g., State v. Blades, 626 A.2d 273, 275 (Conn. 1993) (reporting that defendant left home because of marital difficulties and that victim wanted him to leave because she was afraid of him and wanted divorce).
168. That the defendant blames the provoking party for the disintegration of the relationship does not disqualify the claim as a "departure." For even when the defendant asserts a reason for the leaving or the breakup (e.g., her complaints), those reasons depend for their plausibility upon their context within a relationship that is ending or over. Imagine that a defendant claimed that his brother "complained" too much and that was the "reason" for his rage and one quickly sees how the context (e.g., the breakup) is essential to the defendant's claims.
169. As I indicated earlier, I use the term "her" to reflect my data. In my data set, there was only one MPC case in which a female defendant's claim was predicated on "departure" and the "departure" claim was made by the prosecution. See People v. Ambrose, 553 N.Y.S.2d 896, 896 (App. Div. 1990) (reporting defendant's claim that she killed because of abuse and fear for her child and prosecution's claim that she killed because he was going to "leave her").
170. See McGee v. Delaware, 1990 WL 254349, at **1 (Del. Super. Ct. Dec. 11, 1990) (reporting defendant's argument that he was entitled to an EED instruction because his wife's "complaints about his drug use" caused him stress); Jones v. Hawaii, 902 P.2d 965, 967 (Haw. 1995) (reporting defendant's claim that victim refused to speak to him about child visitation); Matthews v. Commonwealth, 709 S.W.2d 414 (Ky. 1985) (reporting defendant's argument that victim had no basis to obtain warrant for his arrest based on charges that he sexually assaulted his daughter).
171. 612 A.2d 45 (Conn. 1992).
172. Id. at 47.
173. Id. ("Sergeant Robert Flannigan testified that he had been called to the defendant's residence to investigate a domestic dispute less than two weeks before the victim's death. The victim, who had a cut and bruised lip, had urged Flannigan to remove the '30-30' caliber Winchester rifle from their home.").
174. See id. ("[The lawyer] testified that he had noticed bruises on her legs, arms and neck. He testified that the victim had told him that she was afraid that if she divorced her husband, he would attempt to obtain custody of their young child.").
175. Id. at 49.
176. The defendant's brief in Traficonda indicates that the defendant had accused the victim of "cheating on him." Brief for Defendant-Appellant at 6, State v. Traficonda, 612 A.2d 45 (Conn. 1992) (No. S.C. 14310). Although the defendant does not appear to have relied upon this as the basis for the EED claim, nor did the appellate court mention it, I have classified Traficonda, for purposes of my statistical analysis, as a "separation and infidelity" claim. Nothing in the presence of those allegations, however, takes away from the analysis of the issues raised in this paragraph.
177. Often, of course, courts sitting as triers of fact reject these claims. See, e.g., People v. Rivera, 507 N.Y.S.2d 266, 266-67 (App. Div. 1986) (upholding trial court's rejection of extreme emotional disturbance defense where defendant relied upon marital situation for claim of compassion when his relationship with "estranged wife was plagued by constant strife, as evidenced by their periodic separations, and was punctuated by sporadic instances of physical abuse by the defendant") (emphasis added).
178. People v. Guevara, 521 N.Y.S.2d 292 (App. Div. 1987).
179. Perry v. Commonwealth, 839 S.W.2d 268 (Ky. 1992).
180. See Brief for Appellant at A-7, Perry v. Commonwealth, 839 S.W.2d 268 (Ky. 1992) (No. 91-SC-93-MR) (reporting that defendant's version of affidavit supporting protective order included claim that Perry had "refused and failed" to vacate and thai his wife had expressed her fear that Perry "will seriously harm her"). The protective order was sought in connection with an action by the defendant's daughter-in-law to annul the recent marriage of the defendant to her mother, who was dying of cancer. See id. at 12-13, app. at A-2. The Supreme Court's opinion indicates that Perry had no basis for believing that the protective order was procedurally or substantively defective. See Perry, 839 S.W.2d at 271.
181. In fairness to the defendant, he claimed at trial that his daughter-in-law had taken his wife, without his knowledge or approval, and that he was upset because his wife was dying. See Brief for Appellant at 12-13, Perry (No. 91-SC-93-MR).
182. That "jurors invoke certain rules within a ruleless EED redounds not to the EED, but to the jurors." Norman J. Finkel, Achilles Fuming, Odysseus Stewing, and Hamlet Brooding: On the Story of the Murder/Manslaughter Distinction, 74 NEB. L. REV. 742, 803 (1995); cf. Dressler, Reflections, supra note 24, at 752-53 (arguing that jurors' ultimate rejection of provocation defense in homosexual advance cases undercuts argument that defense is homophobic).
183. That "jurors invoke certain rules within a ruleless EED redounds not to the EED, but to the jurors." Norman J. Finkel, Achilles Fuming, Odysseus Stewing, and Hamlet Brooding: On the Story of the Murder/Manslaughter Distinction, 74 NEB. L. REV. 742, 803 (1995); cf. Dressler, Reflections, supra note 24, at 752-53 (arguing that jurors' ultimate rejection of provocation defense in homosexual advance cases undercuts argument that defense is homophobic).
184. See generally Jana B. Singer, The Privatization of Family Law, 1992 WIS. L. REV. 1443 (noting emergence of notions of individual privacy and decisional autonomy in family law).
185. I am not an advocate of the traditional approach. My point here is simply to contrast the legal practice of reform jurisdictions with that of more conservative ones.
186. By "% of total," I mean the number of departure cases reaching juries as a percentage of all cases reaching juries.
187. "Success rate" means the percentage of all "departure" claims reaching juries.
188. In part, we have not seen it because juries quite frequently reject such claims. As I have already indicated, that wisdom speaks better of the jurors than of the law. See supra note 149.
189. See, e.g., People v. Murden, 593 N.Y.S.2d 837, 838 (App. Div. 1993) (affirming failure to instruct based on defendant's "engaging in an argument with the victim prior to the crime" or "claimed difficulties between the defendant and his girlfriend"); People v. Feris, 535 N.Y.S.2d 17, 18 (App. Div. 1988) (affirming in memorandum opinion failure to instruct based on "defendant's jealousy and anger over the complainant's new boyfriend"). But see People v. White, 581 N.Y.S.2d 651, 653 (1992) (stating that "defendant may have met his burden with respect to the first element of the affirmative defense by evidence of a violent and tumultuous relationship with his wife"); People v. Guevara, 521 N.Y.S.2d 292, 293 (App. Div. 1987) (reporting that EED instructions was given in case in which wife's "intent to institute a divorce proceeding" prompted fatal beating).
190. 404 N.E.2d 1310 (N.Y. 1980). 157. See, e.g., KADISH & SCHULHOFER, supra note 55, at 420-23; LOW ET AL., supra note 1, at 896-902.
191. Casassa, 404 N.E.2d at 1312.
192. See id.
193. See id. at 1313.
194. MODEL PENAL CODE § 210.3 (1985).
195. See Singer, supra note 53, at 298-304 (discussing psychological focus of MPC defense).
196. Based on his research, Professor Norman Finkel, a professor of psychology, argues that the MPC's subjective formulation tends to influence judges and juries to view the defendant's claims through the lens of a "naive," "anything goes" psychology. See Finkel, supra note 149, at 798-99.
197. See Wellman v. Commonwealth, 694 S.W.2d 696, 697-98 (Ky. 1985) ("[M]ental illness may be considered when there is probative, tangible and independent evidence of initiating circumstances, such as provocation at the time of his act which is contended to arouse extreme emotional disturbance. It is not such a disturbance standing alone.").
198. See People v. Casassa, 404 N.E.2d 1310, 1316 (N.Y. 1980) ("The ultimate test . . . is objective; there must be 'reasonable' explanation or excuse for the actor's disturbance.") (citing MODEL PENAL CODE § 201.3 commentary at 41 (1959)).
199. State v. Hull, 556 A.2d 154, 157 (Conn. 1989).
200. Id.
201. Id.
202. See id. at 165.
203. Rodebaugh v. State, No. 436, 1990 WL 254365, at **1 (Del. Nov. 27, 1990).
204. Id.
205. Id. These facts are drawn from an unpublished opinion that appears at 586 A.2d 1203 (Del. 1990) but appears in full at Rodebaugh, No. 436, 1990 WL 254365. The facts about the trial instruction appear in State v. Rodebaugh, CR.A. Nos. IN88-04-0668R2, IN88-04-0669R2, 1993 WL 603334, at *1 (Del. Super. Ct. Mar. 5, 1993), aff'd. No. 123, 1994 WL 91251 (Del. Mar. 16, 1994).
206. See Rodebaugh, 1993 WL 603334, at *1 (noting that "[t]he Court gave appropriate instructions regarding . . . the defendant's burden of proof on his claim of extreme emotional distress").
207. See Appendix B (listing "separation and infidelity" cases).
208. See id. (listing "simple infidelity" cases).
209. State v. Hull, 556 A.2d 154 (Conn. 1989).
210. See id. at 157 ("In May, 1985, the victim filed for divorce and a restraining order was issued against the defendant"; in June, she was killed by her husband.). Other cases in the "separation and infidelity" category also involved protective orders. See People v. Fediuk, 480 N.Y.S.2d 913, 914-16 (App. Div. 1984) (describing case in which defendant's wife moved out and obtained protective order, and when defendant found out she loved another man, he killed his rival), aff'd. 489 N.E.2d 732 (N.Y. 1985); see also People v. White, 590 N.E.2d 236, 238 (N.Y. 1992) (describing court's finding that defendant meets objective prong of EED standard based on "violent and tumultuous relationship with his wife," relationship that produced protective order and arrest based on incident in which, among other things, her avowals of her infidelities had caused him to beat her with iron pipe "in self-defense") (citing People v. White, 564 N.Y.S.2d 314, 315 (App. Div. 1991)).
211. Hull, 556 A.2d at 165.
212. Id. at 166 (quoting witness testimony).
213. See State v. Rivera, 612 A.2d 749, 750-51 (Conn. 1992).
214. See id. at 750 ("Some time in 1986, . . . the couple separated, and in August of 1989 [the month of the murder], Bellido was dating the victim.").
215. See, e.g., State v. Chicano, 584 A.2d 425 (Conn. 1990) (describing case in which two months after relationship deteriorates, defendant sees victim visited by another, overhears sounds he believes are sexual activity, waits for half-hour, hides in house for one hour, and kills rival); State v. Ricketts, 659 A.2d 188, 189-90 (Conn. App. Ct. 1995) (describing case in which defendant moves out of lover's apartment in early 1991; in July of 1991, defendant kills victim when he sees another man attempting to visit her); State v. Burgos, 656 A.2d 238, 239-40 (Conn. App. Ct. 1995) (describing case in which defendant moves out in summer of 1991 because victim is having an affair; on September 28, 1991, defendant kills victim after she tells him she is leaving him); Re v. State, 540 A.2d 423, 424-25 (Del. 1988) (describing case in which after short and violent marriage, defendant goes to house where victim is staying; when she returns with a date, he kills her); Casalvera v. State, 410 A.2d 1369, 1371 (Del. 1980) (describing case in which defendant moves away and victim seeks to end relationship; they set date to see each other, but victim refuses to call him; when victim tells him that "things had changed" and she was seeing someone else, defendant kills victim); State v. Steedley, Nos. IK90-06-0183R1, IK90-06-0184R1, IK90-06-0185R1, IK90-06-0186R1, 1994 WL 750302, at *1-2 (Del. Super. Ct. Dec. 8, 1994) (describing case in which defendant filed for divorce in 1989, victim rejected reconciliation attempt seven months later after defendant threatened to kill her; the weekend after divorce becomes final, defendant kills ex-wife and new lover); State v. Maurer, 770 P.2d 981, 981-82 (Utah 1989) (describing case in which victim breaks off engagement when she feels affection for another; as they are discussing this and she is moving defendant's possessions out of apartment, he kills her after learning that she has had sexual relations with his rival).
216. Rodebaugh v. State, 586 A.2d 1203 (Del. 1990) (reported in full at No. 436, 1990 WL 254365, at *1 (Del. Nov. 27, 1990)); see State v. Rodebaugh, CR.A. Nos. IN88-04-0668R2, IN88-04-0669R2, 1993 WL 603334 (Del. Super. Ct. Mar. 5, 1993), aff'd. No. 123, 1994 WL 91251 (Del. Mar. 16, 1994).
217. See, e.g., State v. Gaynor, 880 P.2d 947, 948-50 (Or. Ct. App. 1994) (describing case in which parties separated and then divorced; three months after divorce and nine months after split, husband killed man his wife had just recently begun to date). This phenomenon is not limited to MPC jurisdictions. See, e.g., People v. Ogen, 215 Cal. Rptr. 16, 17-18 (Ct. App. 1985) (describing case in which victim moved away in February 1980, and sought to end relationship completely in July 1981; five months later, defendant raped victim; while on bail, he killed victim; provocation instruction given).
218. See, e.g., Steedley, 1994 WL 750302 (describing case in which parties were divorced at time of killing; jury instructed on EED); State v. Lyon, 672 P.2d 1358, 1359 (Or. Ct. App. 1983) (describing case in which defendant was divorced and his "ex-wife" was seeing the victim; jury instructed on EED).
219. See State v. Wood, 545 A.2d 1026, 1030 (Conn. 1988).
220. See People v. Fediuk, 480 N.Y.S.2d 913, 915 (App. Div. 1984), aff'd, 489 N.E.2d 732 (N.Y. 1985).
221. See, e.g., State v. Burgos, 656 A.2d 238, 240 (Conn. App. Ct. 1995) (reporting "separation and infidelity" case in which, during argument, defendant told victim "that he would kill her before he let her go anywhere"); Re v. State, 540 A.2d 423, 425 (Del. 1988) (reporting "separation and infidelity" case in which defendant said: "'Don't leave me, because if you do, I'll kill you.'") (citation omitted); People v. Hartsock, 592 N.Y.S.2d 511, 511 (App. Div. 1993) (reporting "separation and infidelity" case in which, "[i]n the course of an argument, during which the victim refused to reconcile with defendant and insisted that it was over between them, defendant shouted 'if I can't have you nobody else [will]'; he then fired three shots at her from his 12-gauge shotgun").
222. See supra note 19 and accompanying text (discussing "lawfulness" restrictions on other MPC defenses).
223. People v. McCarthy, 547 N.E.2d 459, 463 (Ill. 1989).
224. Id.; see also People v. Santiago, 582 N.E.2d 1304, 1312-13 (Ill. App. Ct. 1991) (refusing instruction where parties' "marital-type relationship" had ended); People v. Elder, 579 N.E.2d 420, 424 (Ill. App. Ct. 1991) (refusing instruction where nonmarital relationship had ended two months previously).
225. These figures were calculated by determining the total number of "simple infidelity" or "separation and infidelity" claims and then determining the percentage of similarly classified claims leading to jury instructions.
226. Dixon v. State, 597 S.W.2d 77, 78 (Ark. 1980).
227. Id.
228. Id.
229. See id. at 78-79. The appellate court found that there was sufficient evidence to support the verdict on either an EED or a recklessness theory. See id. at 78.
230. People v. David, 533 N.Y.S.2d 627, 629 (App. Div. 1988).
231. Id.
232. State v. Saxon, 86 A. 590, 594 (Conn. 1913).
233. See LAFAVE & SCOTT, supra note 14, § 7.10, at 656-57 ("The modern tendency is to extend the rule of mitigation beyond the narrow situation where one spouse actually catches the other in the act of committing adultery.").
234. 591 A.2d 155 (Conn. App. Ct. 1991).
235. See id. at 156 (jury returned manslaughter verdict on theory that defendant intended to cause serious injury that caused death).
236. 568 N.Y.S.2d 651 (App. Div. 1991) (reporting defendant's claim that he snapped "because of an extreme emotional disturbance triggered by his dissatisfaction with the victim who reportedly turned her back on him and went to sleep after they engaged in sexual intercourse").
237. Id. at 652; see also People v. Wood, 488 N.E.2d 86 (N.Y. 1985) (prior appeal).
238. See Appendix B (listing "simple infidelity" claims).
239. Of 133 total claims in the MPC sample, only four (three percent) involved a "simple infidelity" claim that involved a current partner in anything approaching a "discovery" situation. See Worring v. State, 638 S.W.2d 678, 679 (Ark. Ct. App. 1982) (stating that defendant followed husband and found him seated in parked car with alleged lover); State v. Valera, 848 P.2d 376, 378 & n.2 (Haw. 1993) (stating that defendant followed wife to parking lot where he found her in car with alleged lover with his "pants undone"); Smith v. Commonwealth, 737 S.W.2d 683, 685 (Ky. 1987) (stating that defendant discovered his lover and victim with "pants down" in truck); People v. Rowe, 568 N.Y.S.2d 648, 649 (App. Div. 1991) (stating that defendant found rival in bedroom). Four other cases involving seven claims (another five percent) involved discovery in the context of a relationship that was ending or over. See State v. Chicano, 584 A.2d 425, 428 (Conn. 1990) (reporting that defendant waited outside bedroom window and heard "sounds of sexual activity" whereupon he entered house, hid in bathroom for one hour, then killed his former girlfriend, her boyfriend, and her son); People v. Berk, 629 N.Y.S.2d 588, 589-90 (App. Div. 1995) (reporting that defendant discovered rival in bed with estranged wife who had initiated divorce proceedings), aff'd, 88 N.Y.2d 257 (1996); State v. Lyon, 672 P.2d 1358, 1359 (Or. Ct. App. 1983) (reporting that defendant found ex-wife in bed with new lover); State v. Florez, 777 P.2d 452, 453 (Utah 1989) (reporting that defendant returned to former home and found ex-girlfriend in bed with lover).
240. See, e.g., Lovelace v. Lopes, 632 F. Supp. 306, 308 (D. Conn.) (noting confession of infidelity), aff'd, 802 F.2d 443 (2d Cir. 1986); People v. David, 533 N.Y.S.2d 627, 629 (App. Div. 1988) (noting discovery of letter alluding to another relationship); People v. Maggio, 494 N.Y.S.2d 424, 425 (App. Div. 1985) (noting declaration of infidelity); State v. Davis, 606 P.2d 671, 672 (Or. 1980) (noting "alleged sexual affair" victim had with neighbor).
241. Dixon v. State, 597 S.W.2d 77, 78 (Ark. 1980). Similarly, another case noted that: Two weeks before the victim's death, the defendant, the victim's former boyfriend, had seen the victim dancing with another man. The night before the victim's death, the defendant was seen throwing rocks at her window. The defendant also had been seen lingering in the vicinity of the victim's apartment for two days prior to the incident. State v. Martinez, 591 A.2d 155, 156 (Conn. 1991).
242. People v. Aphaylath, 499 N.Y.S.2d 823, 824 (App. Div.), rev'd on other grounds, 68 N.Y.2d 945 (1986); see also 68 N.Y.2d at 946 (characterizing claim as defendant's "jealousy over his wife's apparent preference for an ex-boyfriend" including unidentified displays of affection and "receiving phone calls from an unattached man"). But see People v. Checo, 599 N.Y.S.2d 244, 244 (App. Div. 1993) ("[Defendant's] explanation that he experienced 'emotion' and 'jealousy' at the mere sight of his former wife in the company of another man, did not provide a 'reasonable explanation or excuse.'").
243. See State v. Ott, 686 P.2d 1001, 1004 (Or. 1984) (reporting that defendant was "angered and disappointed when his wife's new lover appeared at the hospital").
244. See supra note 20 and accompanying text (detailing MPC defenses requiring proportionality between violence and triggering circumstances in self-defense, duress, and necessity).
245. See, e.g., People v. Chevalier, 544 N.E.2d 942, 944 (Ill. 1989) ("[M]ere words are insufficient provocation . . . no matter how aggravated, abusive, opprobrious or indecent the language."); People v. Cedeno, 635 N.E.2d 1047, 1052 (Ill. App. Ct. 1994) (applying "mere words" rule); People v. Hightower, 629 N.E.2d 1197, 1201 (Ill. App. Ct. 1994) (applying "mere words" rule and defending it against alleged exception).
246. See, e.g., People v. Burts, 628 N.E.2d 515, 519 (Ill. App. Ct. 1993) (expressing skepticism about defendant's claims of infidelity unsupported by other evidence), vacated, 630 N.E.2d 845 (Ill. 1994).
247. People v. Schorle includes a typical statement: [Defendant did not kill his wife immediately after discovering her in an adulterous act, or immediately prior to or after an act of adultery. The record shows that defendant loaded his gun, waited for his wife, and shot her seconds after she smiled and verbally admitted that she enjoyed the adulterous act. [These words were not] legally sufficient to reduce defendant's homicide to voluntary manslaughter.
248. N.E.2d 84, 89 (Ill. App. Ct. 1990).
249. See, e.g., Rodebaugh v. State, No. 436, 1990 WL 254365, at **1 (Del. Nov. 27, 1990) (reporting that defendant arrived at scene armed and killed man now dating his ex-girlfriend and that EED instruction was given); Re v. State, 540 A.2d 423, 425 (Del. 1988) ("On the night he killed his wife Re went to the house where she was staying and waited for her to return.") (EED instruction given); State v. Lyon, 672 P.2d 1358, 1359 (Or. Ct. App. 1983) ("He arrived there armed with a rifle and a pistol[, which he used to kill his ex-wife's new boyfriend.]") (EED instruction given).
250. As the court noted in one such case in which an EED instruction was given, Davis, who was then separated from his wife, called his wife and threatened to kill her and her boyfriend Baird, with a gun. Davis told his wife that he was coming to the apartment complex where she lived and that he would kill both her and Baird if they were there. Davis v. State, 522 A.2d 342, 342 (Del. 1987).
251. See State v. Martinez, 591 A.2d 155, 156 (Conn. App. Ct. 1991) ("Two weeks before the victim's death, the defendant, the victim's former boyfriend, had seen the victim dancing with another man.") (EED defense raised).
252. See People v. Patterson, 347 N.E.2d 898, 908 (N.Y. 1976), aff'd sub nom. Patterson v. New York, 432 U.S. 197 (1977).
253. Kelman, supra note 64, at 601.
254. See, e.g., People v. Elder, 579 N.E.2d 420, 424 (Ill. App. Ct. 1991) (refusing provocation instruction in traditional jurisdiction because lack of "sudden passion" was demonstrated by fact that defendant "carried a loaded gun" and followed victim). I do not advocate a "sudden passion" rule over the "slow burn" rule. The temporal dimensions of the rule, in my opinion, stand in for other considerations. If the defense is transformed in the ways I believe that it should be, a "cumulative provocation" approach might well remain appropriate. See infra Part IV (arguing for "warranted excuse" theory of passion defense).
255. See Appendix B (listing physical violence cases).
256. Of all 22 MPC physical violence cases, 64% (14/22) involved male defendants.
257. See State v. D'Antuono, 441 A.2d 846, 850 (Conn. 1982) (suggesting that court might have accepted EED defense based on defendant's testimony that he '"freaked out' when she scratched him with the carving fork," but affirming bench trial rejection of this claim).
258. People v. Crum, 539 N.E.2d 196, 202-03 (Ill. App. Ct. 1989) (citing People v. Matthews, 314 N.E.2d 15, 15 (Ill. App. Ct. 1974)).
259. See Commonwealth v. Stonehouse, 555 A.2d 772, 780 (Pa. 1989) (reporting that counsel was held ineffective for failing to seek instruction on cumulative provocation in case where woman was harassed and stalked over period of time and then killed her ex-boyfriend). Pennsylvania is not an MPC state, but it has adopted a cumulative provocation rule similar to the one the MPC commentary suggests.
260. See, e.g., People v. Garcia, 651 N.E.2d 100, 110 (Ill. 1995) (finding no "mutual combat" as matter of law in case where victim allegedly struck female defendant); People v. Falconer, 522 N.E.2d 903, 906-07 (Ill. App. Ct. 1988) (holding victim's slap insufficient to constitute "mutual combat" despite history of past violence by victim against female defendant).
261. See, e.g., People v. Ambrose, 553 N.Y.S.2d 896, 896 (App. Div. 1990) (defendant claims she killed because of abuse and threats to her child; prosecution claims she killed because her partner was going to "leave her").
262. In MPC jurisdictions, "other" claims represented only 7% (7/99) of claims reaching juries and 15% (20/133) of all claims. Of the total 20 claims, only 7 reached juries, revealing a 35% success rate. These results are not unlike those in "traditional" jurisdictions where "other" claims represented 11% (4/38) of all claims and 3% (1/38) of cases reaching juries, revealing a 25% success rate.
263. Some cases, of course, did not fall into any of these groups. See, e.g., People v. Matthews, 632 N.Y.S.2d 298 (App. Div. 1995) (reporting that defendant was distraught because he believed he had been infected by sexually transmitted disease and noting that no instruction was ordered because no evidence of subjective loss of self-control); People v. Morrison, 464 N.Y.S.2d 245 (App. Div. 1983) (reporting that defendant was distraught over wife's multiple threats and attempts to commit suicide).
264. If a claim was based on an argument about departure, it was classified as a "departure" claim, not an "other" claim. In the interest of a conservative approach, I made one exception for a case that could be interpreted as "rejection," but which appeared significantly different from most departure/separation scenarios. That case was classified as "other." See People v. Moye, 489 N.E.2d 736, 738 (N.Y. 1985) (reporting that defendant decapitated woman who taunted his impotence, laughing at him and telling him: "[G]o on little boy. I don't need you.").
265. See, e.g., State v. Skjonsby, 319 N.W.2d 764, 779 (N.D. 1982) (defendant asserted the following as factors that establish EED: "(1) failing businesses and several lawsuits concerning those businesses; (2) problems with his relationship with Charlotte; (3) putting his grandmother in a nursing home; (4) telephone call from Kurtz and Skonsby's knowledge about Kurtz; and (5) his fear that Charlotte was in trouble").
266. See, e.g., State v. Marino, 462 A.2d 1021, 1028 (Conn. 1983) ("[T]he evidence of the relationship of the defendant to the victim [boyfriend/girlfriend], the quarrel which preceded the shooting and his distraught appearance at the time the police arrived [means that] . . . . [w]e cannot say that the evidence was legally insufficient to establish [EED]."). But cf. People v. Adams, 422 N.E.2d 537 (N.Y. 1981) (noting that defendant claimed that he was entitled to EED instruction in case of murdering police officer based on claim he argued with his girlfriend about money before incident).
267. For a case in which the defendant received a heat of passion manslaughter instruction for killing his wife while she slept after a long, bitter argument, see State v. Schmit, 388 N.W.2d 748 (Minn. 1986). Similarly, in State v. Werman, 388 N.W.2d 748, 749 (Minn. Ct. App. 1986), the defendant "was angry that his wife had not returned home with him, and he threw things around the house, including leftover dinner." He "passed out" and when he came to, she had returned and they "argued about the messy house"; he then retrieved his gun and shot her. The jury was instructed on heat of passion manslaughter. But see State v. Hoffman, 328 N.W.2d 709, 718 (Minn. 1982) (denying heat of passion manslaughter instruction where defendant "testified that when Carol rejected his sexual advances and told him, 'Why don't you go downstairs and fuck your fat mama,' he lost control and began to choke her").
268. See, e.g., People v. Smalley, 621 N.E.2d 7, 10 (Ill. App. Ct. 1991) ("It is not sufficient to constitute intense provocation that the unarmed decedent and defendant had argued.").
269. See Herbert Wechsler & Jerome Michael, A Rationale of the Law of Homicide: I, 37 COLUM. L. REV. 701, 717-20 (1937) (hereinafter Wechsler & Michael, Homicide I]; Jerome Michael & Herbert Wechsler, A Rationale of the Law of Homicide II, 37 COLUM. L. REV 1261, 1280-81 (1937) [hereinafter Michael & Wechsler, Homicide II]; MODEL PENAL CODE § 210.3 commentary at 60-62 (1985).
270. See Herbert Wechsler & Jerome Michael, A Rationale of the Law of Homicide: I, 37 COLUM. L. REV. 701, 717-20 (1937) (hereinafter Wechsler & Michael, Homicide I]; Jerome Michael & Herbert Wechsler, A Rationale of the Law of Homicide II, 37 COLUM. L. REV 1261, 1280-81 (1937) [hereinafter Michael & Wechsler, Homicide II]; MODEL PENAL CODE § 210.3 commentary at 60-62 (1985).
271. See Herbert Wechsler & Jerome Michael, A Rationale of the Law of Homicide: I, 37 COLUM. L. REV. 701, 717-20 (1937) (hereinafter Wechsler & Michael, Homicide I]; Jerome Michael & Herbert Wechsler, A Rationale of the Law of Homicide II, 37 COLUM. L. REV 1261, 1280-81 (1937) [hereinafter Michael & Wechsler, Homicide II]; MODEL PENAL CODE § 210.3 commentary at 60-62 (1985).
272. Virtually every criminal law scholar treats the MPC defense in terms of self-control, even if ideas differ about the nature of that self-control and its relationship to normative judgments. See, e.g., FLETCHER, supra note 25, § 4.2.1, at 249 (arguing that "self-control" issue turns on determination of what impulses "we expect people to completely control"); LAFAVE & SCOTT, supra note 14, § 7.10(b), at 654 ("[W]hat is really meant by 'reasonable provocation' is provocation which causes a reasonable man to lose his normal self-control."); Dressler, Reflections, supra note 24, at 747-48 (arguing that "at some point, anger becomes so intense that people find it extremely difficult to control themselves").
273. See HART, supra note 33.
274. See id. at 46-53; Tentative Draft, supra note 49, § 210.3, at 47 (discussing reasons for adding defense to MPC).
275. See HART, supra note 33, at 49 ("In this way, the criminal law respects the claims ot the individual as such, or at least as a choosing being.").
276. As Hart put it, "Justice requires that those who have special difficulties to face in keeping the law which they have broken should be punished less." Id. at 24.
277. Id. at 33 (noting that these factors come into play because of "difficulty of proof of subjective states).
278. See MODEL PENAL CODE § 210.3 commentary at 61-63 (1985) (clarifying subjectivity of emotional distress standard).
279. See id. commentary at 62.
280. Although the MPC does not rely exclusively on this theory, it does not discourage it either. The Code itself provides that there must be "extreme" emotional distress or disturbance. See id. § 210.3; see also Michael & Wechsler, Homicide II, supra note 235, at 1281 (suggesting that reasonable persons "intensity" of feeling increases the "greater the provocation"). For applications of EED, see, e.g., State v. Elliott, 411 A.2d 3, 8 (Conn. 1979) ('To be 'extreme' the disturbance had to be excessive and violent in its effect upon the individual driven to kill under it."), and People v. Patterson, 347 N.E.2d 898, 901 (N.Y. 1976) (noting that lower court's conclusion that "extreme" emotion required by MPC precludes mere annoyance or unhappiness or anger"), aff'd sub nom. Patterson v. New York, 432 U.S. 197 (1977).
281. See, e.g., People v Shelton, 385 N.Y.S.2d 708, 717 (Sup. Ct. 1976) (emphasizing exposure to "extremely unusual and overwhelming stress" and "extreme" reaction to that stress, resulting in "intense feelings" that overpower self-control and reason).
282. "It has never been a sufficient, as opposed to a necessary, condition of mitigation that defendant satisfy the excusatory element, by proving simply that they killed in anger." HORDER, supra note 44, at 111.
283. MODEL PENAL CODE § 210.3; see also KENT GREENAWALT, LAW & OBJECTIVITY 119 (1992) (noting that "the phrase 'reasonable explanation or excuse' envisions some moral judgment by the jurors about defendant's culpability").
284. A diminished capacity defense is premised on the theory that the defendant, because of a mental disturbance not amounting to insanity, is less culpable than an intentional killer. It is "entirely subjective in character See MODEL PENAL CODE § 210.3 commentary at 71. Most states have, however, refused to find the MPC's EED defense indistinguishable from a diminished capacity defense. See, e.g., McClellan v. Commonwealth, 715 S.W.2d 464, 468 (Ky. 1986) (rejecting idea that MPC's EED defense is based on lesser form of insanity and disapproving earlier opinions suggesting that MPC formulation should be equated with diminished capacity defense).
285. MODEL PENAL CODE § 210.3 commentary at 62.
286. See Michael & Wechsler, Homicide II, supra note 235, at 1280 ("By provocation we mean the power possessed by some kind of things and events external to human beings, of arousing in them desires by which they are moved to particular acts."); id. at 1281 (noting that greater the passion, more likely are we to attribute "lack of self-control" to "the extraordinary character of the situation").
287. See MODEL PENAL CODE § 210.3 commentary at 62.
288. See Michael S. Moore, Causation and the Excuses, 73 CAL. L. REV. 1091 (1985) (discussing causal theory generally).
289. See Dressler, Reflections, supra note 24, at 745-46 (stressing that MPC provocation defense is classic "excuse").
290. See Michael & Wechsler, Homicide II, supra note 235, at 1281.
291. There were approximately 1,215,000 American divorces in 1992. See STATISTICAL ABSTRACT OF THE UNITED STATES 105 (1994).
292. See Michael & Wechsler, Homicide II, supra note 235, at 1281 ("[T]he point is that the more strongly [most men] would be moved to kill by [such] circumstances . . . the less does his succumbing serve to differentiate his character from theirs.").
293. The normative character of the inquiry is clear from Hart's work. He states that it is cruel to punish one who lacks self-control because such individuals do not have a "fair opportunity to choose between keeping the law . . . or paying the penalty." HART, supra note 33, at 23 (emphasis omitted). If this is so, the provocation defense cannot be fully explained without also explaining the "fairness" of certain kinds of situations from the unfairness of others. Hart himself suggests the normativity of the inquiry by stating that the loss of self-control required is one in which conformity to the law is "a matter of special difficulty . . . as compared with normal persons normally placed." Id. at 15 (emphasis added); see also id. at 153 (describing provoked defendants as those for whom self-control is "abnormally] difficult") (emphasis added).
294. See MODEL PENAL CODE § 210.3 commentary at 61 (1985) ("[I]t is for the trier of fact to decide, in light of all the circumstances of the case, whether there exists a reasonable explanation or excuse for the actor's mental condition.").
295. GREENAWALT, supra note 247, at 119 ("'[R]easonable explanation or excuse' envisions some moral judgment by the jurors about defendant's culpability.").
296. The impulse here is natural. MPC drafters were worried that if they simply asked jurors to be "reasonable people" that jurors would automatically reject the defense since "reasonable people" do not kill. See, e.g., Tentative Draft, supra note 49, at 47 ("[T]he reasonable man quite plainly does not kill."); Michael & Wechsler, Homicide II, supra note 235, at 1281 ("[M]ost men do not kill on even the gravest provocation . . . ."). The MPC answer to this is to separate the killing from the emotion and to maintain that the question is not whether a reasonable person kills but whether a reasonable person would experience the kind of emotion that might lead to a murderous rage. See MODEL PENAL CODE § 210.3 commentary at 60-62; Michael & Wechsler, Homicide II, supra note 235, at 1281. Separating the person and his emotions from the act is consistent with the liberal focus on excuse, but it has also led scholars to focus almost exclusively on how we characterize the person. Today, the most pervasive questions raised about the provocation defense depend on whether a reasonable person bears such characteristics as impotence, disability, or terrorist upbringings. See FLETCHER, supra note 25, § 4.2.1, at 247-48; Kelman, supra note 64, at 636-37. In this world, Professor Dan-Cohen is surely right to conclude that the provocation question has become more than a question about emotion or situation, but about how we define the "self." See Meir Dan-Cohen, Responsibility and the Boundaries of Self, 105 HARV. L. REV. 959 (1992).
297. The impulse here is natural. MPC drafters were worried that if they simply asked jurors to be "reasonable people" that jurors would automatically reject the defense since "reasonable people" do not kill. See, e.g., Tentative Draft, supra note 49, at 47 ("[T]he reasonable man quite plainly does not kill."); Michael & Wechsler, Homicide II, supra note 235, at 1281 ("[M]ost men do not kill on even the gravest provocation . . . ."). The MPC answer to this is to separate the killing from the emotion and to maintain that the question is not whether a reasonable person kills but whether a reasonable person would experience the kind of emotion that might lead to a murderous rage. See MODEL PENAL CODE § 210.3 commentary at 60-62; Michael & Wechsler, Homicide II, supra note 235, at 1281. Separating the person and his emotions from the act is consistent with the liberal focus on excuse, but it has also led scholars to focus almost exclusively on how we characterize the person. Today, the most pervasive questions raised about the provocation defense depend on whether a reasonable person bears such characteristics as impotence, disability, or terrorist upbringings. See FLETCHER, supra note 25, § 4.2.1, at 247-48; Kelman, supra note 64, at 636-37. In this world, Professor Dan-Cohen is surely right to conclude that the provocation question has become more than a question about emotion or situation, but about how we define the "self." See Meir Dan-Cohen, Responsibility and the Boundaries of Self, 105 HARV. L. REV. 959 (1992).
298. The impulse here is natural. MPC drafters were worried that if they simply asked jurors to be "reasonable people" that jurors would automatically reject the defense since "reasonable people" do not kill. See, e.g., Tentative Draft, supra note 49, at 47 ("[T]he reasonable man quite plainly does not kill."); Michael & Wechsler, Homicide II, supra note 235, at 1281 ("[M]ost men do not kill on even the gravest provocation . . . ."). The MPC answer to this is to separate the killing from the emotion and to maintain that the question is not whether a reasonable person kills but whether a reasonable person would experience the kind of emotion that might lead to a murderous rage. See MODEL PENAL CODE § 210.3 commentary at 60-62; Michael & Wechsler, Homicide II, supra note 235, at 1281. Separating the person and his emotions from the act is consistent with the liberal focus on excuse, but it has also led scholars to focus almost exclusively on how we characterize the person. Today, the most pervasive questions raised about the provocation defense depend on whether a reasonable person bears such characteristics as impotence, disability, or terrorist upbringings. See FLETCHER, supra note 25, § 4.2.1, at 247-48; Kelman, supra note 64, at 636-37. In this world, Professor Dan-Cohen is surely right to conclude that the provocation question has become more than a question about emotion or situation, but about how we define the "self." See Meir Dan-Cohen, Responsibility and the Boundaries of Self, 105 HARV. L. REV. 959 (1992).
299. The impulse here is natural. MPC drafters were worried that if they simply asked jurors to be "reasonable people" that jurors would automatically reject the defense since "reasonable people" do not kill. See, e.g., Tentative Draft, supra note 49, at 47 ("[T]he reasonable man quite plainly does not kill."); Michael & Wechsler, Homicide II, supra note 235, at 1281 ("[M]ost men do not kill on even the gravest provocation . . . ."). The MPC answer to this is to separate the killing from the emotion and to maintain that the question is not whether a reasonable person kills but whether a reasonable person would experience the kind of emotion that might lead to a murderous rage. See MODEL PENAL CODE § 210.3 commentary at 60-62; Michael & Wechsler, Homicide II, supra note 235, at 1281. Separating the person and his emotions from the act is consistent with the liberal focus on excuse, but it has also led scholars to focus almost exclusively on how we characterize the person. Today, the most pervasive questions raised about the provocation defense depend on whether a reasonable person bears such characteristics as impotence, disability, or terrorist upbringings. See FLETCHER, supra note 25, § 4.2.1, at 247-48; Kelman, supra note 64, at 636-37. In this world, Professor Dan-Cohen is surely right to conclude that the provocation question has become more than a question about emotion or situation, but about how we define the "self." See Meir Dan-Cohen, Responsibility and the Boundaries of Self, 105 HARV. L. REV. 959 (1992).
300. When confronted with Wechsler's plea that the jury is '"asked to show whatever empathy it can,'" one court replied that Wechsler's statement "may explain the rationale of the draftsmen but . . . ignore[s] the realities of the courtroom." State v. Elliott, 411 A.2d 3, 7-8 (Conn. 1979) (quoting Herbert Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 COLUM. L. REV. 1425, 1446 (1968)).
301. See State v. Raguseo, 622 A.2d 519, 522-23 (Conn. 1993).
302. See id. at 526 ("[T]he jury sought reinstruction again on extreme emotional disturbance, requesting that the trial court focus on . . . whose norm is relevant, society's or the defendant's . . . .").
303. On the utilitarian theory of excuse, see generally FLETCHER, supra note 25, § 10.3.5, at 813-17.
304. On the limits of deterrence, see HART, supra note 33, at 50 ("Human beings in the main do what the law requires without first choosing between the advantage and the cost of disobeying, and when they obey it is not usually from fear of the sanction.").
305. See Williams, supra note 64, at 742 ("[I]t is a curious confession of failure on the part of the law to suppose that, notwithstanding the possibility of heavy punishment, an ordinary person will commit it. If the assertion were correct, it would raise serious doubts whether the offence should continue to be punished.").
306. EED does not negate intent. See, e.g., State v. D'Antuono, 441 A.2d 846, 849 (Conn. 1982) ("Extreme emotional disturbance does not negate intent."); State v. Gaynor, 880 P.2d 947, 951 (Or. Ct. App. 1994) ("To the extent that defendant suggests that evidence of his EED negates the state's evidence of intentional conduct, he is wrong.").
307. See LANGAN & DAWSON, supra note 66, at 21 tbl.35. In 51% of the cases in which wives killed, the victim had a prior arrest or conviction. See id.; cf. BRIAN A. REAVES & PHENY Z. SMITH, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, FELONY DEFENDANTS IN LARGE URBAN COUNTIES, 1992 (1995) (reporting that among all defendants charged with murder in 75 largest counties of United States, 56% had felony arrest record and 47% had prior conviction for misdemeanor or felony).
308. In Garcia v. Superior Court, 789 P.2d 960 (Cal. 1990), the defendant, while on parole for the murder of his first wife, began to live with another woman. When that woman left, he killed her. See id. at 962-63. In People v. Pickett, 210 Cal. Rptr. 85 (Ct. App. 1985). the defendant, who had previously been convicted of strangling his first wife, was tried for the murder of his second wife. See id. at 86-87.
309. 897 P.2d 481 (Cal. 1995), cert. denied, 116 S. Ct. 1825 (1996).
310. See id. at 503 & n.15.
311. 328 N.W.2d 136 (Minn. 1982).
312. In Phelps, the defendant hired his wife's brother, Wolfe, to kill defendant's wife (Vicky). Wolfe 7 subsequently killed his girlfriend (Kim) when she became engaged to another man. Wolfe pled guilty to manslaughter for Kim's death and received immunity for the killing of Vicky in exchange for his testimony against defendant who was convicted of first degree murder of Vicky. See id. at 137-38. Phelps's request for a heat of passion manslaughter instruction was denied.
313. See People v. Kozel, 184 Cal. Rptr. 208, 213 (Ct. App. 1982).
314. In People v. Thompkins, 240 Cal. Rptr. 516 (Ct. App. 1987), the defendant became upset when his wife filed for divorce. He believed that she was "seeing someone else" and told a friend that he might have to "take him out." The friend tried to dissuade him from this course of action but defendant persisted "saying he was willing to 'do seven years for taking them out.'" Id. at 517.
315. See Re v. State, 540 A.2d 423, 429-30 (Del. 1988) (reporting testimony that defendant had told victim "one and one-half weeks" before her death, "'Don't leave me because if you do, I'll kill you'" and that when victim suggested that "he would go to jail," defendant was reported to have said "that he would just act like he was crazy and get off).
316. Although liberal theory justifies the defense in terms of self-control, scholars readily acknowledge the lurking normative questions. See FLETCHER, supra note 25, § 4.2.1, at 243-49 (emphasizing normative issues); Dan-Cohen, supra note 260, at 993-96 (noting temptation to evade normative issues).
317. See MODEL PENAL CODE § 210.3 (1985) ("The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.").
318. See id. commentary at 62 (rejecting notion that defendant's characteristics should include "idiosyncratic moral values").
319. See, e.g., ROBINSON, supra note 25, at 619.
320. See, e.g., State v. Ott, 686 P.2d 1001 (Or. 1984) (addressing question whether peculiar personality characteristics of defendant should be included in "situation"); MODEL PENAL CODE § 210.3 commentary at 62-63 (discussing characteristics question generally); Dressler, Reflections, supra note 24, at 752-53 (same); see also Dan-Cohen, supra note 260, at 993-96 (discussing this issue in context of famous case of Bedder v. Director of Pub. Prosecutions, 2 All E.R. 801 (H.L. 1954)); infra text accompanying notes 404-12.
321. See Rex v. Greening, 3 K.B. 846, 849 (1913) (holding when there is no legal - i.e., marriage - relationship, defendant "has no such right to control" over his faithless lover); Dressler, Provocation, supra note 24, at 440 (noting traditional approach in which killing for unfaithfulness of wife yields manslaughter but killing for unfaithfulness of "lover or fiancé is murder[]").
322. See, e.g., Frazier v. State, 828 S.W.2d 838, 839 (Ark. 1992) ("The fact that one friend teases another is not a reasonable excuse for a state of emotional disturbance so great as to excuse killing."); Farr v. State, No. CACR 94-1256, 1995 Ark. App. LEXIS 565, at *5 (Ark. Ct. App. 1995) ("'[E]ven if appellant's irritation from being teased could somehow constitute extreme emotional disturbance, there was no proof that it was reasonable'") (quoting Frazier, 828 S.W.2d at 839).
323. See, e.g., Frazier, 828 S.W.2d at 839 (holding that EED instruction was unnecessary in case in which defendant, male friend of victim, said "'Ooh, Dana peed on hisself'" and defendant was "tired" of victim "'messing with him'"); Thompson v. Commonwealth, 862 S.W.2d 871, 877 (Ky. 1993) (holding that instruction defining EED was not required in case where prison inmate at work farm killed his supervisor after he became upset that his supervisor had criticized him, because "being 'upset' and 'uneasy' does not constitute extreme emotional disturbance" as defined by court); see also People v. Pride, 833 P.2d 643, 676 (Cal. 1992) (holding in mixed jurisdiction, janitor's written criticism of defendant's work was "insufficient-provocation).
324. See People v. White, 590 N.E.2d 236 (N.Y. 1992) ("The fact that defendant had been repeatedly humiliated by [his wife] was sufficient to establish the requisite provocation.").
325. See, e.g., People v. Moye, 658 N.E.2d 232 (N.Y. 1985) (reporting that defendant was insulted by woman with whom he was trying to have sex and reversing for failure to instruct on EED); People v. Benedict 609 N.Y.S.2d 100, 101 (App. Div. 1994) (reporting that jury heard EED claim based on argument in which an insult by victim "made him so angry" that "he lost control of himself").
326. I use the term "rational" emotion here as shorthand for the determination by a judge that the case should go to the jury, i.e., that a "rational jury" could conclude that there was a "reasonable explanation or excuse." See MODEL PENAL CODE § 210.3 (1985).
327. See State v. Russo, 734 P.2d 156, 160 (Haw. 1987) (holding that defendant presented no "'reasonable' explanation or excuse" by arguing that he murdered friends who were "leaving [him] out of their activities); see also Cecil v. Commonwealth, 888 S.W.2d 669, 671 (Ky. 1994) (holding that no instruction on EED available in case in which female defendant became "emotionally dependent" on her friend and increasingly "jealous" of time friend spent away from her).
328. People v. Wood 568 N.Y.S.2d 651, 652 (App. Div. 1991) ("At his second trial, the defendant's defense was that he had 'snapped' and was 'totally out of control' at the time of the killing" because of EED "triggered by his dissatisfaction with the victim who reportedly turned her back on him and went to sleep after they engaged in sexual intercourse").
329. See State v. Reams, 616 P.2d 498 (Or. Ct. App. 1980) (reporting that defendant's wife moved furniture out of house and that defendant relied on EED defense), aff'd in part and remanded, 636 P.2d 913 (Or. 1981).
330. See State v. Wilbanks, No. C9-90-2430, 1991 WL 171989, at *2 (Minn. Ct. App. Sept. 10, 1991) (expressing skepticism about "rational basis" of claim that defendant acted in heat of passion because "the prospect of eviction drove [him] over the edge").
331. Frederick Schauer would describe this as an "entrenched generalization." For example, if a "No dogs allowed" rule were applied to ban a seeing eye dog, the generalization underlying the rule (dogs are badly behaved and create disturbances) would be "entrenched": It would apply "even in those cases in which that generalization failed to serve [the rule's] underlying justification." FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 48-49 (1991) (amphasis omitted). Applying the generalization in this way transforms it, in my view, from a description to a norm.
332. See ALLAN GIBBARD, WISE CHOICES, APT FEELINGS: A THEORY OF NORMATIVE JUDGMENT 162 (1990) (describing use of term "rational" as commitment to norms that would permit act to be described as "rational").
333. As Frederick Schauer has observed: [D]escriptive possibilities that may exist in theory are blocked in practice by the way in which existing generalizations steer understanding . . . . The generalizations channel our perceptions, making it difficult to jump the channels of existing apprehension. Insofar as available generalizations are entrenched, some descriptive options will never be seen, others will become substantially harder to express, and still others will become less understandable than they would have been had not certain generalizations been entrenched. SCHAUER, supra note 292, at 44.
334. Often, when the defendant's claim is of such a nature, courts will be tempted to say that the defendant "indulged" his emotions, betraying that what they mean is that the defendant "should" have controlled them. See HORDER, supra note 44, at 97-99 (discussing early analogue of this view based on "weakness of will").
335. See, e.g., People v. Fediuk, 480 N.Y.S.2d 913, 914-15 (App. Div. 1984) (Weinstein, J., dissenting) (describing separation as rejection), aff'd, 489 N.E.2d 732 (N.Y. 1985).
336. See, e.g., GEORGE P. FLETCHER, LOYALTY: AN ESSAY ON THE MORALITY OF RELATIONSHIPS 7 (1993) ("[T]he question of loyalty does not arise in the abstract but only in the context of particular relationships. Further, by definition, these ties generate partialities in loyalties, loves and hates, dispositions to trust and distrust.").
337. See, e.g., People v. Rivera, 507 N.Y.S.2d 266, 267 (App. Div. 1986) (upholding trial courts rejection of EED on basis that defendant's relationship "with his estranged wife was plagued by constant strife, as evidenced by their periodic separations, and was punctuated by sporadic instances of physical abuse by the defendant") (emphasis added); see also State v. Traficonda, 612 A.2d 45 (Conn. 1992) (affirming jury's rejection of EED defense based on defendant's own battering); Fediuk, 489 N.E.2d 732 (rejecting EED defense over dissenting opinion below in case where victim was trying to leave and had stayed at battered women's shelter), aff'g Fediuk, 480 N.Y.S.2d 913. For the dissent below, see Fediuk, 480 N.Y.S.2d at 914-15 (Weinstein, J., dissenting) (arguing for reduction to manslaughter verdict).
338. Feminist theory posits, of course, that this kind of rhetorical transformation sits at the core of "liberal legalism." See, e.g., Catharine A. MacKinnon, Feminism, Marxism. Method, and the State: Toward Feminist Jurisprudence, reprinted in CRITICAL LEGAL STUDIES 56, 62 (Allan C. Hutchinson ed., 1989) (stating that liberal legalism "legitimizes itself by reflecting its view of existing society, a society it made and makes by so seeing it, and calling that view, and that relation, practical rationality").
339. See, e.g., State v. Fair, 496 A.2d 461, 462 (Conn. 1985) (reporting that defendant relied upon EED defense in case where defendant was upset because his ex-girlfriend moved and told him he would never see his son); State v. Werman, 388 N.W.2d 748, 749 (Minn. Ct. App. 1986) (reporting that jury was instructed on provocation in case where parties argued and argument included dispute about messy house); State v. Reams, 616 P.2d 498 (Or. Ct. App. 1980) (reporting defendant relied upon EED defense in case where defendant claimed he snapped when his wife moved furniture out), aff'd in part and remanded, 636 P.2d 913 (Or. 1981).
340. 455 A.2d 1041 (N.H. 1983).
341. See id. at 1043 ("[W]e hold that a lawful act cannot provide sufficient provocation to support a finding of manslaughter.").
342. 462 A.2d 117 (N.H. 1983). The trial judge had given the jury a manslaughter instruction even though the provoking situation involved the victim's attempt to end the relationship. See id. at 118.
343. See id. at 118-19 (discussing Smith, 455 A.2d 1041).
344. New Hampshire is not the only state in which this appears to have happened. In New Mexico, a non-MPC state, the supreme court ruled in State v. Manus, 597 P.2d 280 (N.M. 1979), that no lawful act may constitute provocation. See id. at 285. Later, in a departure case, the court made no mention of this point. Instead, it held that rejection did not amount to a "sudden quarrel" sufficient to give rise to adequate provocation. See State v. Robinson, 616 P.2d 406, 413 (N.M. 1980).
345. See infra Part III (arguing that differences between feminists and reform's defenders depends upon excuse).
346. See MODEL PENAL CODE § 3.04 (1985) (providing that deadly force must be proportional); see supra note 20 (identifying other defenses with proportionality requirements).
347. See MODEL PENAL CODE §§ 2.09(2), 3.04(2)(b)(i), 3.09.
348. See infra Part IV (arguing against abolition position because law needs to protect emotion as essential to our attachment to law itself).
349. See id. (arguing that sincere emotion may be relevant to sentencing or grade of offense).
350. See ROBERT C. SOLOMON, THE PASSIONS: EMOTIONS AND THE MEANING OF LIFE 187 (1976).
351. See, e.g., Dressler, Reflections, supra note 24, at 746 n.107 (arguing that MPC's provocation formula is clearly based on concept of "excuse"). An "excuse" is a defense that adjudges the defendant less culpable, typically because of the defendant's state of mind (e.g., insanity); a "justification" is a defense that adjudges the defendant less culpable because his acts, all things considered, were the right things to do in the circumstances (e.g., necessity). This division is a rough approximation, not a rule. See generally Kent Greenawalt, The Perplexing Borders of Justification anil Excuse, 84 COLUM. L. REV. 1897 (1984) (arguing that Anglo-American criminal law should not attempt to distinguish systematically between justification and excuse).
352. See, e.g., Dressler, Reflections, supra note 24, at 746 n.107 (arguing that MPC's provocation formula is clearly based on concept of "excuse"). An "excuse" is a defense that adjudges the defendant less culpable, typically because of the defendant's state of mind (e.g., insanity); a "justification" is a defense that adjudges the defendant less culpable because his acts, all things considered, were the right things to do in the circumstances (e.g., necessity). This division is a rough approximation, not a rule. See generally Kent Greenawalt, The Perplexing Borders of Justification anil Excuse, 84 COLUM. L. REV. 1897 (1984) (arguing that Anglo-American criminal law should not attempt to distinguish systematically between justification and excuse).
353. See infra Part IV.
354. 2 JAMES, supra note 16, at 452 (espousing physicalist view of emotion). There is some evidence that learning of infidelity increases male, but not female, heart rates by up to five beats a minute (the apparent equivalent of a jolt of three cups of coffee). See Buss, supra note 84, at 543 (reporting results from experiment). This, of course, does not explain why we should not want to partially excuse the use of violence in response to such emotional "jolts." A "behavioral" model would not only have to explain the emotional reaction, but also the physical or behavioral compulsion or quasi-compulsion to use violence in response to the three-cups-of-coffee reaction.
355. See supra Subsection II.B.2.
356. In theory, the defense could be practiced as an excuse if it operated as a diminished capacity defense. One might define, for example, a "reasonable excuse or explanation" as a mental disorder. Some courts have seemed to approach, but have ultimately refused to embrace, such a formulation. See, e.g., State v. Dumlao, 715 P.2d 822, 829-31 (Haw. Ct. App. 1986) (suggesting that MPC's EED defense is partial diminished capacity defense).
357. See Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625, 625 (1984) (arguing that separation between decision and conduct rules presents inherent conflicts in criminal law).
358. An example may help to see this distinction: The provocation defense applied in a murder case creates a conflict between what Professor Dan-Cohen sees as a conduct rule (the rule against murder) and a decision rule (the rule of provocation). See id. at 626-27 (describing and defining decision versus conduct rules). But the defense itself incorporates an unacknowledged conduct rule (as I have construed it) relative to the provoking behavior that is a condition of the defense. That conflict is one within the defense, not between the defense as decision rule and offense as conduct rule.
359. As Professor Dan-Cohen notes, selective transmission may operate illegitimately in precisely those cases in which the law uses the distinction between conduct rules and decision rules to achieve something that it could not otherwise achieve. See id. at 665 n.110.
360. By this I mean that these defenses are typically unavailable if the acts triggering the defendant's claims are lawful.
361. People v. Wood, 568 N.Y.S.2d 651, 652 (App. Div. 1991).
362. See Coker, supra note 57, at 75; Mahoney, supra note 4, at 79-80; Taylor, supra note 63, at 1689-92.
363. See HORDER, supra note 44, at 62-63.
364. As contemporary common law jurisdictions explain this formulation, the cooling off prohibition is the objective counterpart to the heat of passion requirement. See Tripp v. State, 374 A.2d 384, 391 (Md. Ct. Spec. App. 1977).
365. See, e.g., KADISH & SCHULHOFER, supra note 55, at 411-14 (explaining move toward reasonable person formulation).
366. See, e.g., MODEL PENAL CODE § 210.3 commentary at 62 (1985).
367. See HORDER, supra note 44, at 62-63 (noting that early modern law recognized passion as deliberate act of retaliatory anger, anger that depended upon judgments of "wrongdoing and of appropriate response").
368. See Case, Of Richard Epstein, supra note 30, at 370 (explaining that feminism "asks what, from a feminist perspective, is wrong with the world; how much does the law have to do with creating, reinforcing and meaning what is wrong; what would the ideal world look like; and how can law help us to get to that ideal").
369. One form of feminist argument proceeds to "uncover and claim as valid the experience of women." MacKinnon, supra note 299, at 57. To the extent that such an argument takes its normative authority solely from sex, it is often confused with a kind of victimology, an argument that gains authority by a "state of injury." See generally BROWN, supra note 29 (exploring how injury has become basis of political and legal identity). Although such claims have done much to jolt the debate, they also present problems. Cf. Martha L.A. Fineman, Feminist Theory and Law, 18 HARV. J.L. & PUB. POL'Y 349, 356 (1995) (noting it is problematic to rely upon "mere presence of a characteristic or set of characteristics [that give] the individual . . . authority and legitimacy"). My effort here has not been to privilege the characteristic or quality of "sex" in any particular way. Instead, I use what I believe are rather conventional legal tools to demonstrate the ways in which legal discourse has made normative commitments regarding gender and, in particular, relationship as sex, impossible to see. This is not a simple claim that "neutrality" has led us here; it is an investigation into the intellectual habits of neutrality.
370. See MacKinnon, supra note 299, at 57 (observing that feminism "is creating a new process of theorizing and a new form of theory [in opposition to] male dominance['s] . . . paradigm of order").
371. R.M. HARE, THE LANGUAGE OF MORALS 147 (1972).
372. See id at 127 ("When we commend or condemn anything, it is always in order, at least indirectly, to guide choices, our own or other people's, now or in the future.").
373. Unfortunately, many of the drafting choices made by reformers only intensified the degree to which the defense seemed no to be making judgment at all. Consider the MPC's rejection of the common law's specific categories. See supra text accompanying notes 48-49. Once one commits to an intellectual strategy of descriptions, generality will actually worsen the law's passivity by obscuring relevant features of the normative inquiry. This is why common law jurisdictions with their more specific categories have an easier time addressing changing cultural norms: Although they may apply the categories mindlessly, their specificity actually focuses them on the idea of relationship. See supra text accompanying notes 190-91 (discussing how traditional states' focus on departure stems from adultery category). Similar effects can be seen in the MPC's choice to embrace the jury as the solution to the defense's normative problem. See supra note 258 and accompanying text. One may well decide, it seems to me, that juries are the appropriate place to debate normative conflict. To believe, however, that juries' decisions do away with the normative decisions elsewhere in the system can only increase normative passivity. See supra text accompanying notes 258-59 (arguing that sending case to jury does not eliminate question about which cases should go to juries). If we believe that someone else is doing all the normative work, we will be tempted to think that we are doing none.
374. See GILBERT RYLE, THE CONCEPT OF MIND 303 (1949) (rejecting idea that theorizing is best understood "by analogies with seeing": "the prompt, effortless and correct visual recognition of what is familiar, expected and sunlit").
375. Norms, in my view, are commitments we make to each other. In this sense, the normative inquiry necessarily rejects passivity and requires engagement; it does not look backwar, but forward.
376. My claim that one cannot locate answer to the provocation defense within attributes of persons is not an argument that norms do not exist or cannot be known. None of our most cherished legal commitments (e.g., freedom, justice, security) "exist" or are "knowable" in the observational sense of the term. Nor it is an argument that norms exist independent of fact or vice versa. One can quite readily accept that "no identifiable normative interpretation stands neatly separable from descriptive interpretations," GREENWALT, supra note 247, at 75, and still conclude that observation and normative judgment entail identifiably different intellectual habits, see id. at 75-76.
377. This insight finds some resonance in the work of other scholars, albeit in different contexts and on different topics. See, e.g., George P. Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949, 953 (1985) (arguing that idea of reasonable man packs into itself both extensions and limitations of relevant norms); Kelman, supra note 64, at 645-46 (arguing that character theories incorporate our judgments about appropriate behavior into character at very start).
378. I say this not because a feminist argument cannot or should not be made. Such arguments have been made. Here, however, I am trying to show why it is that liberals cannot see or appreciate the feminist argument.
379. This may explain why reform's defenders could understand the potential for normative conflict in theory but fail to see it in practice. Conflict was only perceived when the defendant's entire description amounted to a normative proposition, when the defendant was defined by his terrorist upbringing. See ROBINSON, supra note 25, at 619.
380. When feminists ask the descriptive question, they tend to find themselves facing similar circumstances. Consider, for example, the debate about the adoption of "reasonable woman" standards. As soon as courts began to adopt such standards, arguments quickly erupted within feminism over whether the standard was too "objective" because it left out other individual characteristics or whether, by including subgroups of women, the defense would become "oversubjectified." See Fineman, supra note 329, at 360-65 (discussing this question in context of sexual harassment law). Here, feminists are simply borrowing the attributional logic of liberalism and having the same never-ending circular arguments about objectivity and subjectivity, rephrased as essentialism and difference. If feminism seeks to be normative, in my view, it must seek answers in relational understandings, not attributions.
381. See Kelman, supra note 64, at 633-37 (arguing that "broad and narrow" views of defendant dictate outcomes in variety of criminal law cases, including provocation cases).
382. See Dan-Cohen, supra note 260.
383. See Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 1-3 (1988).
384. This view governs excuses that cover women as well as men. See Coughlin, supra note 28, at 26-43 (discussing traditional ideas of moral agency in context of understanding criminal law's approach toward moral agency of women).
385. See People v. White, 590 N.E.2d 236, 237 (N.Y. 1992) (stating "that defendant may have met his burden with respect to the first element of the [EED] defense by evidence of a violent and tumultuous relationship with his wife"); see also State v. Marino, 462 A.2d 1021, 1028 (Conn. 1983) (finding sufficient evidence to convict on EED manslaughter based on "the evidence of the relationship of the defendant to the victim, the quarrel which preceded the shooting and his distraught appearance").
386. See, e.g., SUSAN ESTRICH, REAL RAPE 4 (1987) ("[T]he law's abhorrence of the rapist in stranger cases . . . has been matched only by its distrust of the victim who claims to have been raped by a friend or neighbor or acquaintance."); Mahoney, supra note 4, at 61-63 (arguing against public assumption that continued physical presence of victim after pattern of abuse constitutes partial consent).
387. MacKinnon, supra note 299, at 64.
388. ESTRICH, supra note 346, at 103 (quoting People v. Gauntlett, 352 N.W.2d 310, 313 (Mich. Ct. App. 1984)).
389. When I gave a version of this Article at a women's conference, one of the participants remarked that my argument depended upon a feminist approach identified with "second-generation" feminism, exposing a purportedly neutral law for all its nonneutrality, rather than relying on women's experience or other "third-generation" feminist analytic techniques. This comment poses the interesting question of why a legal standard that fails "easy" feminist arguments still exists or, even if the law has not changed, why this Article had never been written before. One could, I suppose, simply say that gender bias keeps the law and scholarship in place. What I have tried to show, however, is that given current assumptions about the theory of excuse, defenders of the EED defense do not have the intellectual equipment that permits them to see the law as biased. This says something more than that the law is nonneutral; it exposes the intellectual techniques that keep liberals and feminists talking past each other.
390. Cf. Martha Albertson Fineman, Preface to MARTHA ALBERTSON FINEMAN & ROXANNE MYKITIUK, THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE at xiii (1994) (noting successful feminist challenges in "war" to redefine role of women).
391. See, e. g., Commonwealth v. Stonehouse, 555 A.2d 772 (Pa. 1989) (describing situation in which woman killed her former boyfriend who had stalked and harassed her and finding on appeal that she was entitled to assert provocation theory based on cumulative impact of earlier events). This assumes, of course, that there is some time lag between the rape and the killing, or the stalking and the killing; otherwise, the defendants would have perfect or imperfect self-defense claims.
392. See ROBINSON, supra note 52, § 102, at 479.
393. See MODEL PENAL CODE § 210.3 (1985) (citing State v. Gounagias, 153 P. 9 (Wash. 1915)).
394. See Kahan & Nussbaum, supra note 38, passim.
395. See ANTONIO R. DAMASIO, DESCARTES' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN at xii (1994) ("[E]motions and feelings may not be intruders in the bastion of reason at all: they may be enmeshed in its networks, for worse and for better."); see also W. Gerrod Parrott & Jay Schulkin, Neuropsychology and the Cognitive Nature of Emotions, 7 COGNITION & EMOTION 43, 56-57 (1993) (arguing that emotion and sensation cannot be independent of cognition). Thanks to Ann Althouse for introducing me to Damasio's fascinating book.
396. See ANTONIO R. DAMASIO, DESCARTES' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN at xii (1994) ("[E]motions and feelings may not be intruders in the bastion of reason at all: they may be enmeshed in its networks, for worse and for better."); see also W. Gerrod Parrott & Jay Schulkin, Neuropsychology and the Cognitive Nature of Emotions, 7 COGNITION & EMOTION 43, 56-57 (1993) (arguing that emotion and sensation cannot be independent of cognition). Thanks to Ann Althouse for introducing me to Damasio's fascinating book.
397. See, e.g., JAMES R. AVERILL, ANGER AND AGGRESSION: AN ESSAY ON EMOTION 7-13 (1982) (arguing that emotions are social constructions); Richard S. Lazarus, Cognition and Motivation in Emotion, 46 AM. PSYCHOLOGIST 352, 352-54 (1991) (arguing for cognitivist position). A psychologist has recently taken to the law reviews for the express purpose of showing that the provocation defense is "bad" psychology. See Finkel, supra note 149, at 796-803. For the recognition of similar ideas in evolutionary biology and anthropology, see Kahan & Nussbaum, supra note 38, at 291-92.
398. See, e.g., JAMES R. AVERILL, ANGER AND AGGRESSION: AN ESSAY ON EMOTION 7-13 (1982) (arguing that emotions are social constructions); Richard S. Lazarus, Cognition and Motivation in Emotion, 46 AM. PSYCHOLOGIST 352, 352-54 (1991) (arguing for cognitivist position). A psychologist has recently taken to the law reviews for the express purpose of showing that the provocation defense is "bad" psychology. See Finkel, supra note 149, at 796-803. For the recognition of similar ideas in evolutionary biology and anthropology, see Kahan & Nussbaum, supra note 38, at 291-92.
399. See DOUGLAS WALTON, THE PLACE OF EMOTION IN ARGUMENT I (1992) ("[A]ppeals to emotion have a legitimate, even important, place as arguments in persuasion dialogue.").
400. See RONALD DE SOUSA, THE RATIONALITY OF EMOTION 107-11 (1987); EXPLAINING EMOTIONS (Amélie Rorty ed., 1980); GIBBARD, supra note 293, at 126-32; ROBERT C. SOLOMON, THE PASSIONS: EMOTIONS AND THE MEANING OF LIFE at ix (1993). This view is accepted by philosophers working within a variety of traditions. See, e.g., MARK JOHNSON, MORAL IMAGINATION: IMPLICATIONS OF COGNITIVE SCIENCE FOR ETHICS 58-59, 132-33 (1993); RYLE, supra note 334, at 114-15; 1 CHARLES TAYLOR, HUMAN AGENCY AND LANGUAGE: PHILOSOPHICAL PAPERS 50 (1985); ROBERTO MANGABEIRA UNGER, PASSION: AN ESSAY ON PERSONALITY 101-07 (1984). Many thanks to David Luban for steering me toward Solomon's and Gibbard's works.
401. See RONALD DE SOUSA, THE RATIONALITY OF EMOTION 107-11 (1987); EXPLAINING EMOTIONS (Amélie Rorty ed., 1980); GIBBARD, supra note 293, at 126-32; ROBERT C. SOLOMON, THE PASSIONS: EMOTIONS AND THE MEANING OF LIFE at ix (1993). This view is accepted by philosophers working within a variety of traditions. See, e.g., MARK JOHNSON, MORAL IMAGINATION: IMPLICATIONS OF COGNITIVE SCIENCE FOR ETHICS 58-59, 132-33 (1993); RYLE, supra note 334, at 114-15; 1 CHARLES TAYLOR, HUMAN AGENCY AND LANGUAGE: PHILOSOPHICAL PAPERS 50 (1985); ROBERTO MANGABEIRA UNGER, PASSION: AN ESSAY ON PERSONALITY 101-07 (1984). Many thanks to David Luban for steering me toward Solomon's and Gibbard's works.
402. See RONALD DE SOUSA, THE RATIONALITY OF EMOTION 107-11 (1987); EXPLAINING EMOTIONS (Amélie Rorty ed., 1980); GIBBARD, supra note 293, at 126-32; ROBERT C. SOLOMON, THE PASSIONS: EMOTIONS AND THE MEANING OF LIFE at ix (1993). This view is accepted by philosophers working within a variety of traditions. See, e.g., MARK JOHNSON, MORAL IMAGINATION: IMPLICATIONS OF COGNITIVE SCIENCE FOR ETHICS 58-59, 132-33 (1993); RYLE, supra note 334, at 114-15; 1 CHARLES TAYLOR, HUMAN AGENCY AND LANGUAGE: PHILOSOPHICAL PAPERS 50 (1985); ROBERTO MANGABEIRA UNGER, PASSION: AN ESSAY ON PERSONALITY 101-07 (1984). Many thanks to David Luban for steering me toward Solomon's and Gibbard's works.
403. See RONALD DE SOUSA, THE RATIONALITY OF EMOTION 107-11 (1987); EXPLAINING EMOTIONS (Amélie Rorty ed., 1980); GIBBARD, supra note 293, at 126-32; ROBERT C. SOLOMON, THE PASSIONS: EMOTIONS AND THE MEANING OF LIFE at ix (1993). This view is accepted by philosophers working within a variety of traditions. See, e.g., MARK JOHNSON, MORAL IMAGINATION: IMPLICATIONS OF COGNITIVE SCIENCE FOR ETHICS 58-59, 132-33 (1993); RYLE, supra note 334, at 114-15; 1 CHARLES TAYLOR, HUMAN AGENCY AND LANGUAGE: PHILOSOPHICAL PAPERS 50 (1985); ROBERTO MANGABEIRA UNGER, PASSION: AN ESSAY ON PERSONALITY 101-07 (1984). Many thanks to David Luban for steering me toward Solomon's and Gibbard's works.
404. See RONALD DE SOUSA, THE RATIONALITY OF EMOTION 107-11 (1987); EXPLAINING EMOTIONS (Amélie Rorty ed., 1980); GIBBARD, supra note 293, at 126-32; ROBERT C. SOLOMON, THE PASSIONS: EMOTIONS AND THE MEANING OF LIFE at ix (1993). This view is accepted by philosophers working within a variety of traditions. See, e.g., MARK JOHNSON, MORAL IMAGINATION: IMPLICATIONS OF COGNITIVE SCIENCE FOR ETHICS 58-59, 132-33 (1993); RYLE, supra note 334, at 114-15; 1 CHARLES TAYLOR, HUMAN AGENCY AND LANGUAGE: PHILOSOPHICAL PAPERS 50 (1985); ROBERTO MANGABEIRA UNGER, PASSION: AN ESSAY ON PERSONALITY 101-07 (1984). Many thanks to David Luban for steering me toward Solomon's and Gibbard's works.
405. See RONALD DE SOUSA, THE RATIONALITY OF EMOTION 107-11 (1987); EXPLAINING EMOTIONS (Amélie Rorty ed., 1980); GIBBARD, supra note 293, at 126-32; ROBERT C. SOLOMON, THE PASSIONS: EMOTIONS AND THE MEANING OF LIFE at ix (1993). This view is accepted by philosophers working within a variety of traditions. See, e.g., MARK JOHNSON, MORAL IMAGINATION: IMPLICATIONS OF COGNITIVE SCIENCE FOR ETHICS 58-59, 132-33 (1993); RYLE, supra note 334, at 114-15; 1 CHARLES TAYLOR, HUMAN AGENCY AND LANGUAGE: PHILOSOPHICAL PAPERS 50 (1985); ROBERTO MANGABEIRA UNGER, PASSION: AN ESSAY ON PERSONALITY 101-07 (1984). Many thanks to David Luban for steering me toward Solomon's and Gibbard's works.
406. See MARTHA NUSSBAUM, THE THERAPY OF DESIRE 507-10 (1994).
407. The first criminal law scholar to attack the conventional view and to recommend a more cognitively based idea of emotion was Samuel Pillsbury, who made the argument in the context of the death penalty. See Samuel H. Pillsbury, Emotional Justice: Moralizing the Passions of Criminal Punishment, 74 CORNELL L. REV. 655, 674-84 (1989). This challenge was asserted in a broader context by Kahan & Nussbaum, supra note 38. Both give excellent treatments of the arguments against a behaviorist view of emotion. For that reason, I do not repeat those arguments at length here.
408. See MODEL PENAL CODE § 210.3 (1985) (requiring that there be "reasonable excuse or explanation" for defendant's claim of emotional distress).
409. 2 TAYLOR, supra note 35, at 159 (referring to use of term by Romantic philosopher Friedrich Schiller); see FRIEDRICH SCHILLER, ON THE AESTHETIC EDUCATION OF A MAN IN A SERIES OF LETTERS 34-45 (Reginald Snell trans., 2d ed. 1965).
410. This is a far from radical proposition, nor is it one that is necessarily inconsistent with liberal philosophical traditions. See HANNAH ARENDT, LECTURES ON KANT'S POLITICAL PHILOSOPHY 72 (Ronald Beiner ed., 1982) (analyzing Kantian "judgment" in terms of communicability of feeling: "[W]hen one judges, one judges as a member of a community," judgments that depend upon our ability to communicate "our feeling" to others) (citing IMMANUEL KANT, CRITIQUE OF JUDGMENT § 49 (Werner S. Pluhar trans., 1937)); see id. at 110 ("If thinking . . . actualizes the difference between our identity . . . then judging . . . realizes thinking, makes it manifest in a world of appearances, where I am never alone . . . .).
411. This is a far from radical proposition, nor is it one that is necessarily inconsistent with liberal philosophical traditions. See HANNAH ARENDT, LECTURES ON KANT'S POLITICAL PHILOSOPHY 72 (Ronald Beiner ed., 1982) (analyzing Kantian "judgment" in terms of communicability of feeling: "[W]hen one judges, one judges as a member of a community," judgments that depend upon our ability to communicate "our feeling" to others) (citing IMMANUEL KANT, CRITIQUE OF JUDGMENT § 49 (Werner S. Pluhar trans., 1937)); see id. at 110 ("If thinking . . . actualizes the difference between our identity . . . then judging . . . realizes thinking, makes it manifest in a world of appearances, where I am never alone . . . .).
412. In his study of patients who have lost their ability to feel because of brain surgery or accident, Damasio found that loss of emotion was tied to these patients' inability to make decisions, to wed themselves to common ideals, and to evaluate (i.e., place values upon) different choices. See, e.g., DAMASIO, supra note 355, at 46-51, 53. He concluded that, from a neurobiological position, a "[r]eduction in emotion may constitute an equally important source of irrational behavior." Id. at 53 (entire quote italicized in original).
413. OLIVER SACKS, AN ANTHROPOLOGIST ON MARS 287-88 (1995) (attributing example to Damasio).
414. The traditional master/slave dichotomy of reason/emotion assumes from the very start that both reason and emotion are "within us" as atomistic individuals. To see emotion as that which binds us together is not only to challenge the reason/emotion relationship, it is to challenge the underlying intellectual commitment that we are alone with our emotions/reason.
415. It is in this sense that the defendant is "us," rather than in the sense that she is a "reasonable" person or in the sense that she has exhibited "human frailty."
416. See Williams, supra note 64, at 742 (asking this question).
417. This is a coherence argument and, like all coherence arguments, it provides a necessary, rather than a sufficient, condition of justice. I recognize that there may be cases that raise "hard" issues. I believe, however, that many of the most common provocation claims, particularly the claims I have emphasized in this Article, raise simple, rather than difficult, issues because they raise obvious issues of coherence.
418. See GIBBARD, supra note 293, at 172.
419. See Jean Hampton, Punishment as Defeat, in FORGIVENESS AND MERCY 124-28, 130 (Jeffrie G. Murphy & Jean Hampton eds., 1988) ("By victimizing me, the wrongdoer has declared himself elevated with respect to me, acting as a superior who is permitted to use me for his purposes.").
420. See Greenawalt, supra note 312, at 1903-11 (discussing different cases of warranted and unwarranted behavior as justified or excused).
421. See Dressler, Provocation, supra note 24, at 437 ("[E]xcuses only exist in circumstances where the conduct is unjustified.").
422. The focus of the defense, in my view, remains on the defendant's particular emotional response, not the provoking act itself. I reject the position, adopted by a theory based on partial justification, that the defendant's culpability is reduced by the victim's "bad" act. I also reject the idea that victims have "forfeited" their right to insist on life because of their bad acts. See id. at 450-59 (discussing comparative moral wrongdoing and forfeiture theories supporting partial justification theory of provocation defense). Moreover, as I indicate below, see infra text accompanying notes 375-80, I hold to none of the usual practical implications of a justification or partial justification theory, theories which reject the defendant's perception of the act, the defense's applicability in cases where third parties are killed, and the relevance of the defendant's personal characteristics. See Dressler, Reflections, supra note 24, at 745-49 (discussing doctrinal implications of excuse and justification theories of provocation).
423. See, e.g., Dressler, Provocation, supra note 24, at 440 (discussing how partial justification theory judges triggering act without regard to defendant's emotional reaction).
424. See, e.g., FLETCHER, supra note 25, § 4.2.1, at 249-50 (arguing that defense should defer to wide set of defendant's characteristics); see infra text accompanying notes 404-07 (discussing Bedder case and arguing that impotence may be relevant to one normative reconstruction of issues in case).
425. See KADISH & SCHULHOFER, supra note 55, at 414-15, 419-25 (discussing common law doctrine of cooling time).
426. See State v. Gounagias, 153 P. 9 (Wash. 1915) (holding that defendant who was sodomized, taunted for two weeks, and finally killed assaulter did not qualify for heat of passion defense because of adequate cooling time).
427. It is no surprise that the MPC defense adopted the cumulative provocation rule in the context of a case that fits our strongest intuitions about emotional judgments, in a case where the defendant was forcibly sodomized. See supra text accompanying note 353. Professor Finkel's recent research suggests that, despite all the controversy, "cooling time" may have little to do with juries' perceptions of the appropriateness of a manslaughter verdict when the triggering event is a serious wrong such as a rape. See Finkel, supra note 149, at 784.
428. See Commonwealth v. Stonehouse, 555 A.2d 772, 780 (Pa. 1989).
429. My proposal does not adopt the view that the unlawfulness of the provoking behavior is a sufficient test of warranted outrage. A defendant who claims that he was outraged by a traffic violation hould not reach a jury because no rational trier of fact could find that the traffic violation provoked the kind of outrage proportional to the use of deadly violence. Moreover, even in cases where the claim of outrage is based on conduct that appears lawful, the defendant's provocation claim may reflect warranted emotion under a different normative reconstruction of the provoking behavior See infra note 386 (discussing case in which Holocaust survivor killed marcher who was protected by Firs Amendment). Lawfulness is a guide to those kinds of outrage the law must protect. It is not a doctrinal standard. Nor should it be applied without regard to the ultimate purpose of the inquiry - to determine whethe the defendant is asking us to accept a claim that permits him to legislate emotional blame vis-à-vis his victim
430. See FRIEDMAN, supra note 63, 345-77 (reporting that fornication is generally no longer criminalized and adultery no longer punished); RICHARD A. POSNER, SEX AND REASON 260-61, 309 (1992) (discussing rarely enforced laws against adultery and consensual sodomy ; see also Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660, 1670-72, 1672 n.89 (1991) (arguing that criminal laws against adultery are unconstitutional and, in practice, selectively enforced).
431. See FRIEDMAN, supra note 63, 345-77 (reporting that fornication is generally no longer criminalized and adultery no longer punished); RICHARD A. POSNER, SEX AND REASON 260-61, 309 (1992) (discussing rarely enforced laws against adultery and consensual sodomy ; see also Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660, 1670-72, 1672 n.89 (1991) (arguing that criminal laws against adultery are unconstitutional and, in practice, selectively enforced).
432. It is not enough that the claimed outraged reflects widely shared social norms. Most people, I believe, see sexual infidelity as a grave wrong, but would not support a referendum to put adulterers in jail. Nor is it enough that the parties may have agreed to remain faithful, ex ante, when they were married. Marriage partners agree to remain faithful but do not agree that breaches may be punished by violence. My argument that coherence compels the criminal law to protect the emotions to which the State itself appeals to justify its use of violence depends upon the potential use of violence, not unlawfulness in name only, nor in the violation of widely held social norms.
433. A similar analysis follows in cases in which defendant's claimed outrage is based on consensual homosexual conduct or a nonviolent homosexual advance. In states where the law protects the privacy of such conduct, such cases are no different from departure claims and should not reach a jury. In states where the conduct is criminalized but remains unenforced, the analysis follows the same track as the adultery example and, again, should not reach a jury.
434. Outrage inspired by nominally unlawful acts, such as adultery, should not reach a jury. Similarly, outrage inspired by what might be lawful acts, see infra note 386, is not necessarily exempt from treatment as warranted outrage. For further explanation, see supra note 381.
435. Some cases may involve a conflict between norms. Imagine a Holocaust survivor who, outraged by a Nazi march, kills one of the marchers in a fit of rage. This case can be reconstructed in two ways. The defendant will argue that his emotion was warranted and proportional to the monstrosity of Nazi war crimes, an emotion triggered by the march. The prosecution will argue that the defendant's emotion was disproportionate and unwarranted as a punishment of behavior protected by the First Amendment. Putting the conflict this way does not make the case easy but seems a definite improvement over the question whether the defendant's survivor status counts as a relevant "characteristic" in this "situation."
436. See, e.g., Dressler, Provocation, supra note 24, at 479 (noting that under justification theory "there would not seem to be any reason why the provoked killing must occur during a moment of passion").
437. See e g., Maher v. People, 10 Mich. 212, 220 (1862) (noting that if all it takes is emotion, then "by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men").
438. See Dressler, Provocation, supra note 24, at 465-66 (arguing for full exculpation in cases where actor is incapable of controlling his conduct).
439. Our belief that persons who lack self-control deserve less punishment purports to depend upon an analogy with physical coercion: The emotion is seen as the "gun to the head" of the defendant. The problem with this analogy is that there is no intellectually defensible stopping point: If true, we should be excusing almost all defendants (because almost all defendants kill in a state of high emotion), and the provocation defense should not be a mitigating factor but a full defense. When we mitigate rather than acquit we acknowledge that this metaphor cannot be quite true. For one thing, the supposed coercion is not a gun; for another, the connection between the coercing force and the act does not lie in the hands of another person. Most importantly, however, we mitigate rather than acquit because we do not believe that emotions are like guns. We believe that we can reason ourselves out of emotion, indeed that emotion often embodies a kind of archaic reasoning that, once brought to light, often changes the emotion itself. See JONATHAN LEAR, LOVE AND ITS PLACE IN NATURE 29-68 (1990).
440. Saying that someone lacks self-control, like saying that his acts are involuntary, purports to be a statement about behavioral events. However, it is typically a statement that already incorporates a judgment about responsibility. Typically, when we say that someone acted without self-control, we have already decided that he or she is not blameworthy. Of course, blameworthiness is the ultimate question that we are trying to answer. See RYLE, supra note 334, at 69-74 (arguing that many statements of voluntariness are in fact judgments of responsibility rather than statements about mental fact).
441. See Kahan & Nussbaum, supra note 38, at 365.
442. Indeed, Professor Nussbaum's book The Therapy of Desire, NUSSBAUM, supra note 359, had an enormous impact upon my thinking about the defense.
443. See supra text accompanying notes 301-05.
444. Kahan & Nussbaum, supra note 38, at 365. These authors also argue for a greater legislative role, see id. at 364, without acknowledging the dangers of a heated rush to legislative punishment. I say this as one who detests vapid and uninformed criticism of legislatures and politics in general. However, having spent three years of my life on the floor of the Senate watching crime legislation come to life, I am aware of the political winds that will blow in these circumstances.
445. Id. at 374.
446. Id. at 362-65 (arguing that "evaluative view forces decisionmakers to accept responsibility for their moral assessments and to give reasons for them in a public way" and that "acknowledging the evaluative underpinnings of the law fully exposes decisionmakers' assessments to the public"); id. at 364 ("We have suggested that evaluative doctrines have the potential to counteract the problem of bad morality by exposing the resolution of contentious issues to plain view.").
447. See LAFAVE & SCOTT, supra note 14, § 7.10, at 656 ("It is the law practically everywhere that a husband who discovers his wife in the act of committing adultery is reasonably provoked, so that when, in his passion, he intentionally kills either his wife or her lover (or both), his crime is voluntary manslaughter rather than murder."). As Kahan and Nussbaum note, the public has recently shown "outrage" for some cases of wife-killing where the sentence meted out was quite low. See Kahan & Nussbaum, supra note 38, at 346-47. We have had outrage about such sentences in the past, however, and it has not led to any grand movements of reform either from the judiciary, within legislatures, or from the criminal law academy. See, e.g., Lynn H. Schafran, There's No Accounting for Judges, 58 ALB. L. REV. 1063, 1065-66 (1995) (arguing that "little has changed since 1984, when the Colorado judiciary came under siege after a local judge gave a minimal sentence, to be served on weekends, to a man who killed his wife when she tried to flee their abusive marriage").
448. For more on the debate between character and choice theories, see R.A. Duff, Choice, Character, and Criminal Liability, 12 LAW & PHIL. 345 (1993), which argues that the debate rests on a false dichonotomy.
449. Kahan and Nussbaum recognize this problem when they consider whether their proposal might enforce "bad morality." See Kahan & Nussbaum, supra note 38, at 362.
450. HART, supra note 33, at 33.
451. My reference to retribution here should not be taken to mean that I am in any way advocating a pure retributive theory of punishment. I believe that my argument is consistent with various theories of punishment, including both retributive and utilitarian theories. Indeed, Professors Kahan and Nussbaum have laid this out quite clearly in their article. See Kahan & Nussbaum, supra note 38, at 350-58. Perhaps more than theirs, however, my proposal's emphasis on an equal normative plane has obvious resonance with theories of punishment that include some recognition of the expressive and restorative aspects of punishment.
452. One can easily imagine a case, for example, in which coherence alone would not be enough. Imagine a different time and place in which the law punishes those who are members of particular political organizations. A defendant kills, provoked by the knowledge that his victim was a member of the outlawed organization and, hence, traitorous. If the State is willing to punish those who are members of the organization, then the defendant's claim poses no danger of incoherence. Not only is proportionality a clear limit on this exercise, comparing the defendant's reasons to legal sanctions is a guide; it is not sufficient alone. See supra note 381.
453. Bedder v. Director of Pub. Prosecutions, 2 All E.R. 801 (H.L. 1954).
454. See id. at 802-03. For an American case involving similar facts in which the appellate court ordered a new trial for failure to instruct on EED, see People v. Moye, 489 N.E.2d 736 738 (N.Y. 1985), which states that the defendant was jeered at by a woman for his impotence and told, "go on little boy. I dont' need you."
455. See Dan-Cohen, supra note 260, at 993-95 (noting traditional difficulties with case).
456. See, e.g., Taylor, supra note 63, at 1689-92 (arguing that passion has been understood from reasonable "male" standard, often reflecting male understandings of sexuality).
457. The jury should also have been instructed that it could consider whether Bedder intentionally created the conditions of his own defense either by refusing to allow the victim to leave (her "striking" him in this scenario is an act of self-defense) or by soliciting the prostitute knowing he was impotent.
458. Others appear to agree with this intuition. In Professor Finkel's study of mock jurors, a fact pattern similar to that in Bedder produced "significantly more" second degree murder verdicts than did a fact pattern based on the decision in State v. Gounagias, 153 P. 9 (Wash. 1915). See Finkel, supra note 149, at 783. Professor Finkel stressed the triggering event: "[T]he sodomy makes a difference: when there is no sodomy but only a taunt [as in Bedder], the voluntary manslaughter verdicts are the lowest." Id. at 784.
459. Professor Finkel's study again supports this intuition: He found that sentences "are higher in the impotence than in the no impotence condition," because jurors believed Bedder "chose to put himself in a situation where failure and provocation were all but inevitable." Id. at 785; see also id. at 789 (elaborating on this point). Moreover, when Professor Finkel posited that the victim "feared" the provoker (as in the case of a bias-motivated attack), the jurors returned lower sentences than when the Bedder-figure exhibited "anger." Id. at 784; see also id. at 789 ("[A] one word change from 'anger' to 'fear' produced a significant reduction in the sentences handed out.").
460. Professor Finkel's study suggests that the question of impotence makes no difference in jurors' determinations. See id. at 784 (finding that jurors' mock verdicts in Bedder case do not change when defendant's impotence is included or excluded from fact scenario).
461. This explains why some cases involving verbal insults should reach juries. For example, the defendant who kills because of racial epithets may well be evincing the kind of emotion that the community believes responds to a "grave wrong," a wrong that the law itself recognizes and punishes in "civil rights" or "hate crimes" statutes. Of course, if the insults themselves are accompanied by an implicit threat of injury, an emotional response to the implicit threat would be an independent reason to send the case to the jury. See, e.g., State v. Ott, 686 P.2d 1001, 1013 (Or. 1984) (citing hypothetical of racial slurs against Asian defendant interned in relocation camp). This obviously leaves some difficult decisions (e.g., whether the insult was sufficiently evocative of sincere emotion or whether the response was disproportionate to the verbal assault), but it places these cases on firmer normative ground than does current law.
462. This is particularly true in jurisdictions in which the "defense" mitigates from first to second degree murder, rather than manslaughter. See, e.g., WIS. STAT. ANN. §§ 939.44(2), 940.01(2)(a) (West 1996).
463. See supra note 267.
464. See Tentative Draft, supra note 49, at 46.
465. See Commonwealth v. Carroll, 194 A.2d 911, 916 (Pa. 1963) (expressing agreement with proposition that "'[t]he law fixes no length of time as necessary to form the intent to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury'") (citation omitted).
466. See, e.g., People v. Anderson, 447 P.2d 942, 945, 953 (Cal. 1968) (finding of premeditation unsustainable even though victim sustained over 60 wounds).
467. See, e.g., Elizabeth Rapaport, Capital Murder and the Domestic Discount: A Study of Capital Domestic Murder in the Post-Furman Era, 49 SMU L. REV. 1507, 1508 (1996) (arguing that courts apply domestic discount in death penalty cases).
468. Kahan & Nussbaum, supra note 38, at 374.