Provocation, Perception, Passion
Year: 2024
Type: article
Abstract: A theory of the provocation doctrine is developed based on a particular understanding of the psychology associated with “loss of self-control.” The interpretation this psychology assigns to each of the provocation doctrine’s elements is explained. Labeled the “partial forfeiture” theory, this way of understanding the provocation doctrine doesn’t appear to have been clearly identified or described in the existing literature. According to this theory, when a defendant could not, due to passion, have done otherwise than form an intent to kill, he’s nonetheless guilty of murder if the state regards him as someone who doesn’t habitually see or perceive the “moral” world in the way the state obligates it to be seen or perceived. The theory thus portrays the state, when state actors apply the provocation doctrine to the facts of a particular case, as making a judgment about the defendant that penetrates deep into the defendant’s “mind”: it judges the defendant, not for some judgment he’s made about the “moral” world, but for the way in which he’s disposed to “see” it.
Source: UCLA Criminal Justice Law Review
DOI: 10.5070/cj88164346
Author: Stephen P. Garvey
Institution: Cornell University
Language: English
Topic: Criminal Law and Policy
Subfield: Sociology and Political Science
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W4403325704