A Crime of Passion: The Defence of Provocation

Provoked and blinded by passion, a person may do something they would never have otherwise considered. If in a fit of uncontrollable rage, they took the life of another, is the perpetrator guilty of murder? It depends. The defence of provocation is a complex aspect of criminal law that attempts to balance an understanding of human nature with the need for justice.

What is Provocation in law?

Provocation is a partial defence to a charge of murder set out in Section 4B of the Offences Against the Person Act Chap. 11:08. It cannot be raised as a defence to any other crime like an assault or battery. The provocation must be some action(s) or words said which would cause a reasonable person to lose his self-control and actually causes the accused to lose his self-control making him so subject to passion as to cause him to retaliate.

Does the Killer get off scot-free?

Provocation is only a partial defence. Where it applies, the accused will still be guilty of manslaughter which carries a sentence of up to life imprisonment. While the accused may be spared the death penalty, a convicted person is likely to be sentenced to a lengthy term of imprisonment.

When does the Defence of Provocation apply?

For the defence of provocation to be successful, there are three requirements:

1. The existence of provoking conduct;
2. The provoking conduct caused a sudden and temporary loss of self-control; and
3. That the provocation was enough to make a reasonable person do as the accused did.

What amounts to Provoking Conduct?

Provoking conduct can vary from a violent attack to simple insults.  In fact, the acts or words do not have to be unlawful or even wrong once they actually caused the accused to lose their self-control. The provoking conduct can sometimes come from a third party or be aimed at someone other than the accused such as his loved ones.

Loss of Self-Control

To raise provocation there needs to be evidence of a sudden and temporary loss of self-control in response to the provoking conduct. A sudden loss of self-control may be clear in cases of a frenzied attack immediately after being provoked.

In other cases, the length of any cooling off period would be considered. A longer delay between the provocative acts and the deadly response suggests premeditated revenge, not sudden loss of self-control.

Reasonable Person Test

Losing one’s cool does not automatically mean that the person can rely on provocation. There is an objective test. This means that the jury (or Judge in a Judge alone trial) must decide whether the provocation was enough to cause a reasonable person to kill the victim. Lack of self-restraint or being quick to anger is not a defence.  The accused’s actions are compared against the standard of a reasonable person of ordinary powers of self-control that shares the same age, sex or other relevant characteristics of the accused.

The courts have clarified that the accused’s response does not have to be reasonable or proportionate but that the provoking conduct was grave enough to cause a reasonable person with the relevant characteristics (as described above) to do as he did.

Is this Victim Blaming?

In recent years, the defence of provocation has been criticised as justifying violence, including the deadly outcomes of relationship-based violence. Advocates have argued that it shifts the focus on blaming the victim as opposed to holding the perpetrators responsible, especially in spousal killings. Others have argued that the law acknowledges the complexity of human behaviour and the reality that people can act out of character under extreme provocation which may reduce their level of culpability.

While provocation has been raised in cases of spousal killings, in many cases the defence is unlikely to succeed as it may be difficult for an accused to convince a jury (or Judge alone in a Judge alone trial) that the killing of his spouse after a lover’s spat is what a reasonable person would do.

What about ‘Slow-Burn’?

Some women who have been abused over a long time may have a ‘slow-burn’ reaction rather than an immediate loss of self-control. While the law still requires a sudden loss of self-control, the courts have recognised the notion of cumulative or ‘slow-burn’ provocation. In these cases, the acts or words that acted as a ‘last straw’ can be looked at together with the history of abuse or provoking conduct in deciding whether the defence applies.

Evidence that an accused woman suffered from Post-Traumatic Stress Disorder or Battered Women Syndrome can also be considered. This is not to say however that a man cannot suffer from a similar situation, but this has not been as often documented.

Who Raises Provocation?

Whilst the accused person often raises the defence of provocation, it can be raised based on the evidence put forward by the prosecution on the State’s case. Once it arises, it is left for the tribunal of fact to consider in line with the considerations discussed.