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In Law, What Is a Provocation?

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  • Written By: Tricia Ellis-Christensen
  • Edited By: O. Wallace
  • Last Modified Date: 06 April 2014
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Provocation is a legal term speaking to the intent of a person committing very serious crimes like murder. This defense is not available in all regions, and, where employed, it may only be allowable as a defense in murder cases to reduce, but not dismiss, charges. Similar defenses available elsewhere include loss of control or mental or emotional distress that is extreme. In its narrowest sense and where used most, like in the UK, provocation essentially alleges that the person murdered did something so enraging or upsetting to the murderer, they provoked the attack that led to the crime.

Common actions that might be considered provocative include making threatening, but not at the moment life-threatening, gestures or statements to the person who commits the crime. Certain actions like infidelity might prompt a legal defense of provocation. Long-term true acts of violence, such as abuse of a spouse also may so provoke that spouse, that in a moment when the abusive spouse is not being threatening, the battered spouse murders him or her. This defense should be seen as different than justifiable self-defense, and rather, refers to a person becoming so enraged they cannot help their actions to a certain point. It’s also different than temporary insanity, which may be a reason to excuse charges and find someone not guilty.

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This is why provocation can’t generally be used as an argument that the person shouldn’t be charged as a criminal. The accused did not lose mental capacity to judge the difference between right and wrong, and he or she wasn’t facing an immediate threat to life. Instead, that person was provoked into acting in a horrible way under extreme duress. Had the person not been provoked, he wouldn’t have acted this way, and thus it becomes reasonable to assume that a murder was not intentional or committed in the same spirit that would have occurred had the provoking behavior not existed.

When successfully argued, a provocation defense may reduce charges or sentence. A person, who might in other circumstances be charged with homicide, could face manslaughter charges, instead. Sometimes courts leave the final charge up to a jury, and they can decide whether a defendant has successfully proven provocation and what charge is appropriate based on this. It deserves restating that being provoked doesn’t mean avoiding jail time, but it could mean a person avoids being charged with a level of murder that signifies pure intention.

There is movement in areas where provocation is an allowable defense to eliminate it. In 2009, New Zealand abolished it, and other countries may follow. There have been extreme cases where people committing horrendous crimes have served very little jail time, despite committing murder. A strong argument against this defense is that adults need to learn how to control themselves.

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Discuss this Article

anon340904
Post 3

My neighbor was invited by another neighbor to come to his home and have a few drinks. The two men got drunk together, and suddenly, the second neighbor started punching the first neighbor brutally about the head. It seems the two had a past argument about which there were hard feelings that the alcohol intensified. Because he was intoxicated, the first neighbor didn't put up much of a fight. He was under the assumption that they had made peace before now, and didn't see the assault coming.

Because of the state of his intoxication, he didn't realize the extent of his injuries, which were quite serious. He also began antagonizing the assailant, who keep hitting him. A third neighbor broke the fight up, and removed the first neighbor from the house. When the beaten man realized the extent of his injuries, he called the police. After the police questioned the witnesses and the children who lived in the home who had witnessed the fight, they told the beaten man that he should have left and not antagonized the assailant. That, because he had gotten the worst of the fight, he shouldn't be pushing for an arrest because he didn't know how to fight. They said from talking with the children, that he had almost asked for it. No arrest was made.

I'm having a hard time understanding the logic of the police, and feel that the assailant should have been arrested. Am I wrong on this?

anon108729
Post 2

@anon104919: you should sue the Metropolitan Police! Big time. No little compensation thing. This officer to me was clearly trying to prove a commendable track record. Maybe to move up the ranks quicker?

Your son should not let this evil pull him down. Because the jury has found that he is a man of good character and you love and believe in him. I am not a legal professional of any kind but a woman who has suffered an attack by the Metropolitan Police.

You and your son could do well beginning your research into suing the Met Police. They need to know that they are here to protect us, not to kill us and our children.

anon104919
Post 1

My son was falsely accused of attempted robbery by a metropolitan police officer. He spent six months in jail and eighteen months on an electronic tag. It took two years to reach the courts and our lives where a living nightmare.

When the incident finally went to court it took the jury (after a five day crown court hearing) only half an hour to come back with a not guilty verdict.

This incident cost the taxpayers thousands and thousands of pounds. I appealed to the IPCC and to the Ministry of Justice to no avail. There was not a penny given in compensation.

My son lost his job and his whole future.

My son in now suicidal and I have made an attempt on my own life. We are living in a nightmare. Recently when visiting a McDonalds the serving staff blatantly kept ignoring him and passing him by to serve other customers.

Because of mitigating circumstances, my son is in a very bad frame of mind. he walked out and punched a window on the way out. He is now being prosecuted for the same.

Nothing happened to the police officer who ruined our lives. I am a bitter, bitter woman.

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