Document Type



The Journal of Criminal Law & Criminology




The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for voluntary manslaughter mitigation.

Two insights guide this Article's critique of partial excuses for murder. First, the revised legal history of intimate-partner homicide presented here demonstrates that the modern version of the provocation defense protects a broader class of angry, jealous, predominantly male defendants than the traditional doctrine of the nineteenth century did. Heat-of-passion claims have become the new "abuse excuse" for men. Second, battered woman syndrome evidence, which is now commonly admitted when abused women stand trial for murder, resonates uncomfortably with insanity claims. Reliance on such evidence ignores the fact that "rational moral actor" theories were also raised successfully in the past to defend domestic violence victims who killed their partners. Based on these insights, I argue that the most desirable aspects of the Australian reforms emphasize moral judgment about the defendant's reasons for killing and disfavor concessions to irrationality.

Inspired by Australian efforts, legislatures in the U.S. should implement comprehensive reform of homicide law and sentencing. Yet, even if American states retain rigid sentencing structures, this Article advocates the repeal of the extreme mental or emotional disturbance defense and a reconceptualization of the provocation doctrine, guided by substantive equality principles, to require that the defendant's valuation was justified. Provocation mitigation should be curtailed by categorical exclusions for killings arising from beliefs and passions, including lethal rage at infidelity or the termination of an intimate relationship, that do not comport with evolving social norms. Furthermore, although many battered women charged with murdering a violent spouse can successfully claim provocation under the excuse-based modern doctrine, reformist legislatures ought to provide a new intermediate outcome that fits better with the circumstances of such women's cases.