Provocation by Shame

-- By AjaySaini - 17 Apr 2010

The availability of a provocation defense to lower the degree of homicide from murder to voluntary manslaughter is based on a model of human decision-making that does not accurately portray the manner in which choices are usually made. If the underlying assumptions of a rule must reflect actual human behavior for individual application to be accurate , then the provocation defense must have another justification . Given its typical invocation in contexts involving shame and humiliation, the defense might be said to provide protection for the conventional value of honor.

Ajay, I think your contention that the ostensible reason for maintaining a provocation defense in criminal codes is bankrupt because it isn't based on true models of human behavior is very intriguing. You argue that instead, protecting honor is the real reason the defense is kept on.

Structurally, I think it might make sense to either mention honor first, or not at all. It is where your argument eventually heads--it is the answer to the question 'if the provocation defense does not really rest on accurate models of human decision making, then why is it still around?' So, I think that you might want to dedicate more discussion to the concept of honor, both within society and law, and what makes it such a strong feature that we'd want to protect it with this defense, even while most jurisdictions have abandoned the 'real man' doctrine for one of 'retreat when possible.'

The other option is limiting your paper to a deeper discussion of how the premises of the provocation defense are faulty without answering the question of what else could explain its presence. I realize this is probably not as satisfying, but I think your refutation of the standard basis for the provocation defense is provocative enough (pun not intended) to stand on its own.

How We Choose

An Outdated Model

The provocation 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.

As I understand it, you argue in this section that the emotional responses most of us have to stimuli in our daily lives are neither proportionate nor congruent, to borrow some ConLaw? language. Emotions such as anxiety are relics that we've yet to evolve past and they are no longer useful in meeting the demands of modern day life. However, consider the pay schemes of many large firms, aptly termed 'eat what you kill' where the partner only gets paid for the clients under his bill. In situations like that, is some anxiety at not landing the big client up for grabs really irrational and unjustifiable?

To use a different metaphor, think of law school as some institution that, back on the Savannah, teaches you to hunt and to provide for your own livelihood. Anything that interferes with that education will probably produce anxiety in a person, because it's jeopardizing one's chances of survival. Regardless of how functionally inaccurate this metaphor may be, many students do think of law school as something that will impact their modern day 'chances of survival.' So I guess my question is, even if irrational emotions have outlived their usefulness in our world today, is the fact that we all still experience them relevant? As long as humans do respond to certain stimuli with strong, irrational emotions that may override rational behavior, shouldn't there be some legal recognition of this reality?

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.

I think you have a very interesting and powerful idea here--that emotion is exactly what makes us 'rational' in the first place. Feelings of approval or sympathy at some act, manifested across most members of a society, tell us what we behaviors we value, and widespread repugnance or distress indicate what behaviors we condemn. Indeed, it is the emotional response of the judge and jury to the provocation defense raised that usually determines whether it is granted.

I would love to see a link to the studies you cite--I've read studies on clinical psychopaths that identify a lack of true, deep emotion as one major identifier. For lack of another fast but comprehensive site, here is the Wikipedia entry.

I'm curious as to how you distinguish between emotions within the normal, everyday range and those that are so extreme they cause violent reactions. It seems to me that in evaluating rationality, the law as it is applied necessarily includes normal emotions in rational behavior. The provocation defense seems to deal only with aberrant reactions.

Also, if, as you say, humans have less rational control over decision making and emotions dictate a far greater portion of our behavior, doesn't that completely justify a provocation defense? Shouldn't we actually strengthen the defense and widen its scope?

Why Retain a Provocation Defense?

Must a model of culpability correspond to actual human behavior so that it can be accurately applied to an individual case? The provocation defense is a legal standard justified by 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.

I'm not certain I fully understand your mention of choice--does it mean that in the modern world, we have more choice than we did on the savannah? Or does it mean that we have less [rational] choice because emotions have a hand in almost every decision we make?

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. However, I believe that most jurisdictions won't allow the provocation defense where only words were involved (like verbally notifying a husband of his wife's infidelity instead of actually catching them in the act)or where there has been enough 'cooling time' between the initial offense and the homicide. How do these qualifications square with honor as the actual justification for the provocation defense? The insult to someone's honor has been done either way--why does the court allow or disallow the defense based on how the news was delivered or whether there was time in-between? 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 slander . 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.

I know the word limit is a big consideration, but I would either allocate more room of your paper to this idea that courts recognize shame and humiliation of the offender as a mitigating factor when determining culpability, or I would not broach this issue. It is a VERY interesting argument and I think that a few sentences don't do it justice. You discuss the normative value of shame and I agree with you that shame has enormous power to bring deviant behavior into conformity with the societal standard. There is a great deal of discussion as to whether longer sentences are more effective at deterring white-collar crimes because some argue that the prospect of going to prison is enough shame and embarrassment to deter those that can be deterred, and that a longer sentence would be only marginally more effective.

I'd like to see a bit of clarification as to what kind of shame you mean when you talk about shame in this part. Do you mean shame at having committed the crime, or shame at having been provoked (spousal infidelity, insults)? If it is the former, I agree that shame has normative value, as with white-collar crime I talked about above, or with cultures new to western criminal codes. However, if you mean the latter, shame in having your honor compromised, then I'm not wholly convinced that there is normative value--or if it exists, it is very roundabout and indirect. This sort of shame, which results in positive treatment from courts in the form of a lower grade of homicide, only tells people that if you sully someone's honor, you can be killed and your murderer will face slightly lower penalties. I think you can somehow frame a stronger argument for the importance of honor in the criminal system.

Also, does the traditional 'emotional response' explanation for the provocation defense necessarily conflict with your model of honor and shame? If the courts take into account violent responses caused by strong emotional provocation, doesn't this fit very well within your argument? Honor can be equated with general societal values and shame is the provocation that takes place. The violent reaction to that, which can be considered 'avenging one's honor,' is treated more leniently by the court because it takes into account the provocation, or the shame. As a result, honor and general societal values are upheld.

I summarized your arguments throughout my edit to make sure that I understood them--please correct me if I was off base about something you said and I'll go back through it. I thought you made some very intriguing arguments, especially with respect to how the criminal codes handle emotional responses versus how emotions actually operate in our daily decision making processes. I'm very sorry it took me so long to get these comments to you but I hope you'll find at least some of them helpful!

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