The right of self-defense is fundamental to criminal law, and is intended to allow an individual to use reasonable force to protect themself or family members from bodily harm, if they believe that they are in danger.

Self-defense is commonly used as a defense by a person accused of the crimes of assault/battery, or homicide. However, the right of self-defense is restricted in certain situations. Amongst the various restrictions of claiming self-defense is that the individual claiming self-defense cannot have provoked the conflict.

Primarily, the provocation defense is a mitigating factor used when a defendant claims something provoked or incited them to kill or engage in an action that lead to the person’s death. In essence, a flood of sudden emotion caused them to have a sudden or temporary loss of control.

This defense is most often used to mitigate a criminal charge of murder to a lesser charge of  manslaughter. The defense of provocation may also refer to the “heat of passion” defense.

Further, provocation may also be utilized as a defense in a divorce case based upon physical violence, verbal abuse, or other course of conduct on the part of the plaintiff  that was likely to lead to retaliation by the defendant, thereby provoking the conduct of the defendant complained of as a ground of a fault based divorce.

Finally, as noted above, provocation can serve to restrict the defense of self-defense, which in most jurisdictions may not be asserted in cases where the initiating attacker was provoked.  

What is Criminal Homicide and Voluntary Manslaughter?

In simple terms, criminal homicide is the act of killing another human being. When a homicide is committed with malice and premeditation, which is intent or a level of recklessness that exhibits a depraved heart, the person may be charged with the crime of murder. If the homicide did not involve malice or premeditation, then the defendant may be charged with manslaughter.

Voluntary manslaughter is a homicide caused by passion or provocation. Passion refers to extreme emotion that impairs a person’s judgment. The emotion is often anger, but it does not need to be. For instance, the most common example of voluntary manslaughter is a spouse returning home early to find their spouse having extramarital affairs with another person.

This causes the spouse to become so distressed and angry that they use an object to attack the person cheating with their spouse, killing them. In that example, the spouse who did the attacking would face voluntary manslaughter charges, as they did not premeditate their action, but rather acted in the “heat of passion.”

In other words, the spouse who attacked will argue that the act of their spouse having extramarital affairs with another provoked them into attacking. Thus, the spouse’s criminal defense attorney will argue that the spouse should be charged with voluntary manslaughter instead of criminal homicide, due to the mitigating factor of being provoked.

What is a Mitigating Factor?

A mitigating factor is any factor used to decrease  a criminal charge or a potential punishment. As mentioned above, a mitigating factor can lower a homicide charge from murder to manslaughter. Further, mitigating factors may also reduce a potential criminal sentence from  10 years to 5 years, depending upon the circumstances of the crime.

What are the Different Possible Types of Provocation?

There are two main types of provocation, adequate provocation and reasonable provocation. Adequate provocation is the circumstances or conduct that deprive a reasonable person of their ability to exercise self-control.

As noted above, adequate provocation is a mitigating factor that is used to reduce the criminal charge of murder to a lesser charge of manslaughter. Thus, it is used to prove that there was no malice involved in the defendant’s actions.

Reasonable provocation is a type of provocation that inflames an ordinary person to become capable of committing homicide. The provocation must be enough to cause extreme fear, passion, rage, fright, or excited nervousness in an ordinary person.

These extreme emotions would stop even an ordinary person stopping to reflect or think about their actions. Either type of provocation may be used as a mitigating factor in a homicide case.

Should I Contact an Attorney If I Have Questions About the Provocation Defense?

As can be seen, the provocation defense can act as a mitigating factor in many different cases. Thus, if you are facing criminal charges and you believe that the provocation defense may be available under your personal circumstances, then you should immediately contact a well qualified and experienced criminal defense attorney.

An experienced attorney can consult with you and inform you of whether or not provocation is available as a defense in your case, as well as represent you in front of a court of law, if necessary.