Provocation by Shame

-- By AjaySaini - 17 Apr 2010

The availability of a provocation defense to alleviate the degree of homicide from murder to voluntary manslaughter presupposes a model of human decision-making that does not accord with the manner in which choices are usually made. If the underlying assumptions of a rule must accord with actual human behavior for individual accuracy of result, then the provocation defense finds its justification elsewhere. Given its typical invocation in contexts involving shame and humiliation, the defense might be said to provide protection for the conventional value of honor.

How We Choose

An Outdated Model

Provocation as a defense provides an insight into the underlying legal assumptions about human choice and behavior. The defense is invoked where a person kills another under the influence of emotion elicited by a legally sufficient stimulus. In responding to most stimuli in his environment the reasonable person makes decisions rationally and thereby prevents any inappropriate emotional impulses that might arise at that moment and influence his calculation. If the stimulus is particularly intense, however, even the reasonable man might lose the ability to control his inappropriate emotions and he might, as a result, reasonably act unreasonably. Human choice, therefore, is determined by the relative strength of rationality and inappropriate emotion in influencing responses to the environment, and culpability of those responses is determined by the extent to which the failure to control the inappropriate emotions is understandable to the judge (and case law) and jury.

Towards a Modern Understanding

The model of human decision making described above does not accurately describe human behavior. First we must recognize that emotions (and rationality for that matter) are evolved phenomena, but where they contributed to the fitness of our hominid ancestors on the savannah some hundreds of thousands of years ago, they fit awkwardly within the context of modern post-industrial life. As a result, where extreme anxiety might have proven an appropriate and effective response to the encroachment of a predator, its appropriateness and effectiveness to the stressors of a first year law student is much more difficult to justify. Second the model of a rational force wrestling with the basic passions in an effort to subsume them and ultimately influence the decision is fundamentally flawed. Studies in neurological patients suggest that deficiencies in the ability to emote have serious debilitating effects on the ability to make even the most arbitrary of choices, for instance whether to use a blue or black pen in signing documents. While not diminishing the importance of human rational faculties, an individual’s ability to control his emotional responses and ultimately determine his behavior is greatly exaggerated in the legal model above, and often the influence of a human body’s emotional state will have subtle but decisive persuasion over the eventual choice (as in the expression of preference for blue over black in the example above). Human decision making, therefore, is more often than not the product of emotional responses to environmental stimuli, which in the context of the rapidly changing and variable modern world are often inappropriate and ineffective in addressing the stimuli they are invoked against.

Why Retain a Provocation Defense?

Must a scheme of culpability accord with actual human behavior so that it can be accurately applied to an individual case? Here, there is an instance of legal standard justified on an outdated understanding of human behavior. Incorporating a modern understanding of choice might entail scrapping the provocation defense altogether or at least reformulating it to account for the complexities of decision making. The continued existence of its traditional form in many jurisdictions suggests some other concern besides individual accuracy has motivated its persistence.

Empathy and Decisions of Culpability

Decisions on the level of culpability of a defendant invoking the provocation defense are often made with regard to whether the judge or jury can empathize with that defendant. His act is acceptable when the contextual factors bearing upon him are understandable, and his act is blameworthy when the judge or jury believes those contextual factors would not be enough to move them. The line is therefore drawn between which intense emotional responses are acceptable and which are blameworthy, but it can be drawn with still greater precision. Provocation has involved cases of adulterous wives, uninvited homosexual advances, responses to assaults and vengeance in a number of other contexts. Shame and humiliation are the central emotions supplying the context for the defendant’s action, and providing a defense to those responsible for deciding his fate. Judges and juries might therefore be described as drawing lines, based on personal sympathy, between perceived slights that excuse what would otherwise be murder, and those that are too insignificant to provide a sufficient excuse.

Protecting Honor Through Acceptable Shame

Shame is a social emotion responsible for assimilating divergent individuals into group norms. Given its close relationship to the conventional value of honor, it is no surprise that it elicits special treatment here. Generally through lived experience, people will learn and carry deeply held assumptions about the importance of honor to an individual, and mark of shame accompanying besmirchment. These feelings play a significant role in the determination of culpability for a potentially provoked defendant. By recognizing the experience of sufficient shame and humiliation as a defense courts are effectively protecting conventional perspectives on honor.

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