Heat of Passion/ Manslaughter

Distinctions within the group of crimes known as “homicide” depend on more than the different mens rea levels associated with a killing. Knowing that a person killed someone (act) with the MPC equivalent of purpose or knowledge (mens rea) does not necessarily mean that the person committed “murder.” Criminal law sometimes takes additional circumstances into account when assigning blame. In the case of knowingly or purposefully killing someone, provocation or extreme emotional disturbance might mitigate the crime of murder down to voluntary manslaughter. 

When we ask why courts allow such mitigation, it is helpful to examine the history of provocation manslaughter. Is it because killings that occur in the midst of provocation or extreme emotional disturbance are relatable? Is it because it is something men do? 

The following excerpt from Mitchell N. Berman and Ian P. Farrell’s Article: Provocation Manslaughter as Partial Justification and Partial Excuse sheds light on the history of provocation manslaughter. 

[In the seventeenth century,] the law came to recognize four distinct--and exhaustive--categories of provocative conduct considered “sufficiently grave to warrant the reduction from murder to manslaughter of a hotblooded intentional killing.” The categories were: (1) a grossly insultive assault; (2) witnessing an attack upon a friend or relative; (3) seeing an Englishman unlawfully deprived of his liberty; and (4) witnessing one’s wife in the act of adultery. 

Jeremy Horder argues that, at their inception, both the heat of passion requirement and the categories of adequate provocation reflected the “touchy, quixotic concern for honour” that was prevalent in early modern England. According to this social code, disdainful or contemptuous conduct was considered an “affront,” an intentional attempt to undermine a man’s (presumptively virtuous) reputation. To protect his honor, a man had to retaliate: he had to respond physically and with anger. Only a passionate and physical response demonstrated that the affronted man possessed the Aristotelian virtues of courage and “spirit.” But such virtues were, by definition, the mean between extremes. The retaliation, although passionate, had to be proportionate to the gravity of the affront. 

The four categories of adequate provocation captured circumstances that were considered affronts serious enough to warrant a violent response, but not serious enough to warrant a lethal response, in order to reestablish an honorable reputation. A man who killed in response to provocation falling within one of the four categories “departed from the mean in point of retributive justice by inflicting excessive retaliation, although, given the gravity of the provocation, it [was] not greatly excessive.” As the killer’s actions were an overreaction--but not a gross overreaction--manslaughter rather than murder was the appropriate offense. If the provocation was so extreme that killing in anger was considered an appropriate response, no criminal liability was imposed. On the other hand, if the provocation was less grave than that which the four categories of adequate provocation covered, killing in anger was grossly excessive and therefore considered murder. 

As the cases below demonstrate, different courts have taken different approaches in defining whether and what circumstances might lessen the seriousness of a purposeful killing. As you read these cases, consider the challenges that courts face when they downgrade a crime committed with the same basic act, result, and mens rea. Where and how do courts draw lines between which circumstances mitigate murder and which circumstances don’t? Do any of the original four categories of provocative conduct appear to persist today?