CLAVEL - FINAL (DO NOT DELETE) 2/1/2012 3:02 PM Righting the Wrong and Seeing Red: Heat of Passion, the Model Penal Code, and Domestic Violence NIKOLETTE Y. CLAVEL* ABSTRACT In regard to manslaughter, the Model Penal Code (‚MPC‛) has effectively expanded the common law’s heat-of-passion defense through the use of the Extreme Emotional or Mental Disturbance (‚EEMD‛). This expansion has caused more domestic abusers who kill their spouses to claim the defense as opposed to under the common law. Feminists argue that this expansion has had severe consequences on women and other victims of domestic violence, and as such, feminists ask for the provocation doctrine’s repeal or revision. However, the MPC’s formulation is worthy of protection in American criminal law because it adequately grades and distinguishes offender blameworthiness in reference to homicides. The EEMD standard also allows the fact finder to observe the totality of the circumstances—more so than the common law’s objective reasonable-man standard—and provides a more accurate view of the homicide against which to gauge the defendant’s provocation. In order to restrict the EEMD standard so that domestic abusers are unable to claim the defense (and therefore alleviate the concerns raised by the feminists), the MPC and state legislators should employ categorical rules of exclusion. Rules of exclusion categorically bar a defendant from raising the defense, such as when the homicide is a product of domestic violence. Categorical rules of exclusion serve a dual purpose in that they allow the benefits of the EEMD standard to flourish while barring the defense’s use in inappropriate circumstances. * Candidate for Juris Doctor, New England Law | Boston (2012). B.A., Philosophy and Politics, University of California, Santa Cruz (2004). I would like to thank the New England Law Review staff for their invaluable assistance, my friends and family for their everlasting praise, and especially my parents for their phenomenal wisdom. 329 CLAVEL - FINAL (DO NOT DELETE) 330 2/1/2012 3:02 PM New England Law Review v. 46 |329 INTRODUCTION P romulgated in 1962, the Model Penal Code (‚MPC‛) has been regarded as the most successful attempt at codifying criminal law in American history.1 Following its publication, dozens of states were influenced by the MPC and re-codified their criminal codes.2 The MPC departed significantly from the common law in one very important respect: the formulation of manslaughter.3 The MPC’s formulation of manslaughter,4 commonly referred to as extreme emotional or mental disturbance (‚EEMD‛), expanded the common law’s definition. This allowed more defendants, from a wider variety of situations, to raise the defense.5 Although the MPC was a successful codification of American criminal law, some scholars6 worry that this expansion of manslaughter is not only perverse but often leads to ‚disastrous‛ results for women7 in the realm of 1 See Paul H. Robinson & Markus D. Dubber, The American Model Penal Code: A Brief Overview, 10 NEW CRIM. L. REV. 319, 326 (2007). 2 Id. 3 See MODEL PENAL CODE § 210.3 cmt. 5 at 60-61 (1980) (rejecting the common law categories of what constitutes adequate provocation). 4 MODEL PENAL CODE § 210.3 at 126 (Proposed Official Draft 1962). See Richard Singer, The Resurgence of Mens Rea: I—Provocation, Emotional Disturbance, and the Model Penal Code, 27 B.C. L. REV. 243, 296 (1986) (describing a case that ‚clearly would never have qualified for a provocation instruction under the common law at its most lenient‛). The term ‚defense‛ as used in this Note refers to a claim that, depending on the jurisdiction, may reduce the defendant’s punishment or charge. For example, the provocation defense is an ‚imperfect defense‛ such that it may only reduce a murder charge to manslaughter. BLACK’S LAW DICTIONARY 483 (9th ed. 2009). However, the provocation defense is in no way an absolute defense such that the defendant will not be held criminally liable if the defense is accepted. See id. at 1346. 6 These scholars are often referred to as ‚feminist‛ scholars. Throughout this Note, their arguments are designated as ‚feminist arguments.‛ See, e.g., Joshua Dressler, Why Keep the Provocation Defense?: Some Reflections on a Difficult Subject, 86 MINN. L. REV. 959, 961 (2002) (‚Heat-of-passion law has been the subject of ethical, and most especially, feminist attack.‛). 7 This author wishes to acknowledge that men are also victims of domestic violence and women are also perpetrators. For simplicity and accuracy however, this Note refers to the ‚abuser‛ as male and the ‚survivor‛ or ‚victim‛ as female. In fact, eighty-five to ninety-five percent of all domestic violence victims are women. Nichole Miras Mordini, Note, Mandatory State Interventions for Domestic Abuse Cases: An Examination of the Effects on Victim Safety and Autonomy, 52 DRAKE L. REV. 295, 295 n.1 (2004); Domestic Violence Facts, NAT’L COALITION AGAINST DOMESTIC VIOLENCE, 1 (July 2007) [hereinafter Domestic Violence Facts], http://www.ncadv.org/files/ DomesticViolenceFactSheet(National).pdf. 5 CLAVEL - FINAL (DO NOT DELETE) 2012 Heat of Passion, the MPC, and Domestic Violence 2/1/2012 3:02 PM 331 domestic violence.8 These scholars argue that the MPC’s version of manslaughter expands the common law’s ‚heat-of-passion‛ defense9 at too great of a cost to female domestic violence victims who have been killed by their abusers because it allows abusers to try to mitigate the charge from murder to manslaughter.10 The MPC’s provocation defense has been identified as the new ‚abuse excuse.‛11 As a result, many feminist critics argue that the provocation defense, under both the common law and MPC, should be abolished.12 Despite the potential gender bias within the provocation defense, other scholars contend that the provocation defense should not be abolished but instead revised.13 The revisionists agree that the MPC expands the provocation defense to an untenable level and that justice would be more aptly served by restricting its use.14 This Note will argue that the provocation defense is worthy of protection in American criminal law, and despite its pitfalls, the defense can be restricted to satisfy feminist concerns regarding domestic violence.15 The common law’s conception of the provocation doctrine and its rules of categorical inclusion (i.e., adultery)16 provide a framework that can lend 8 Emily L. Miller, Comment, (Wo)manslaughter: Voluntary Manslaughter, Gender, and the Model Penal Code, 50 EMORY L.J. 665, 666 (2001) (arguing that the MPC expansion of manslaughter has been ‚particularly disastrous for women‛). 9 Throughout this Note, the ‚heat-of-passion‛ defense refers to the common law definition of manslaughter. See BLACK’S LAW DICTIONARY 791 (9th ed. 2009). The ‚provocation defense,‛ as used herein, refers generally to both, or either, the common law and MPC formulations. In most instances, however, it is specified whether the common law or the MPC formulation is applicable. 10 See Miller, supra note 8, at 666. Domestic violence perpetrators have also claimed the defense when they kill a third party who may be dating, or they suspect is dating, their estranged spouse. See, e.g., State v. Rivera, 612 A.2d 749, 750-52 (Conn. 1992) (allowing an EEMD instruction where the defendant killed the man dating his ex-common law wife). Although the defense may be claimed in these other instances, this Note will focus on cases in which the defendant has killed his intimate spouse rather than a third party. 11 Carolyn B. Ramsey, Provoking Change: Comparative Insights on Feminist Homicide Law Reform, 100 J. CRIM. L. & CRIMINOLOGY 33, 33 (2010). 12 Dressler, supra note 6, at 975-84 (discussing the various feminist challenges to the provocation defense). 13 See, e.g., Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 106 YALE L.J. 1331, 1337 (1997) (arguing for a retention of the provocation defense ‚as a partial excuse but only in the limited set of cases in which the defendant and the victim stand on an equal emotional and normative plane‛). 14 See, e.g., id.; see also infra Part III.B (noting that feminist revisionists argue that the provocation defense should be limited to situations where the provoking act was actually a crime or its equivalent). 15 16 See infra Part III.B. See infra Part I.A. CLAVEL - FINAL (DO NOT DELETE) 332 2/1/2012 3:02 PM New England Law Review v. 46 |329 itself to the MPC’s formulation of the provocation defense and help solve the issues raised by feminist scholars.17 In memoriam of the common law’s categorical inclusions, categorical rules of exclusion—which prohibit the use of the defense in instances where an intimate partner is killed as a product of domestic violence—allow the benefits of the defense to flourish while satisfying the issues raised by feminists.18 Like the common law’s categorical rules of inclusion, categorical rules of exclusion should be written into the MPC and utilized by state legislatures and courts to limit the application of manslaughter in domestic violence cases. 19 Part I of this Note will discuss the relevant law regarding murder and manslaughter, along with the common law and MPC conceptions of the provocation defense. Part II will discuss feminist concerns with the MPC in regard to domestic violence. Part III.A will explain the value of the provocation defense and why feminist arguments for its abolition are untrustworthy. Part III.B will discuss the leading revisionist theory, proposed by Professor Victoria Nourse, and argue why it is unworkable. Finally Part III.C will elucidate how categorical exclusionary rules will assuage feminists’ claims. I. Background of Relevant Law—Murder and Manslaughter A. Distinguishing Murder and Manslaughter Common law murder is defined as the ‚unlawful killing of another human being with ‘malice aforethought.’‛20 Although malice aforethought has had various meanings, these varying definitions generally converge on four states of mind: (1) intent to kill; (2) intent to cause grievous bodily harm; (3) depraved-heart; and (4) intent to commit a felony.21 States often divide murder into degrees, such as first and second degree, depending on the heinousness of the crime.22 First-degree murder often turns upon whether the homicide was a ‚willful, deliberate, and premeditated killing.‛23 Common law voluntary manslaughter, on the other hand, is a killing of another human being without malice aforethought; in other words, it is a 17 See infra Part III.C. See infra Part III.C. 19 See infra Part III.C. 20 MODEL PENAL CODE § 210.2 cmt. 1 at 13-14 (1980); see also Maher v. People, 10 Mich. 212, 213 (1862) (‚Malice aforethought is the grand criterion which distinguishes murder from all other killings.‛). 18 21 22 23 MODEL PENAL CODE § 210.2 cmt. 1 at 14-15. Id. § 210.2 cmt. 2 at 16; see, e.g., CAL. PENAL CODE § 189 (West 2011). See, e.g., MICH. COMP. LAWS ANN. § 750.316 (West 2004); CAL. PENAL CODE § 189. CLAVEL - FINAL (DO NOT DELETE) 2012 Heat of Passion, the MPC, and Domestic Violence 2/1/2012 3:02 PM 333 killing of another human being, in the sudden heat of passion, upon adequate provocation.24 Voluntary manslaughter is also distinguishable from involuntary manslaughter. 25 Involuntary manslaughter is generally described as unjustified risk-taking or gross negligence, which results in the unintentional death of another human being.26 In other words, involuntary manslaughter is the unlawful killing of another human being as a result of reckless activities or behavior (or both) whether lawful or unlawful, which are likely to cause death or great bodily harm. 27 Generally, the difference between voluntary and involuntary manslaughter is the actor’s intent: voluntary manslaughter assumes the actor intended to kill or cause serious bodily injury, whereas involuntary manslaughter assumes that the actor did not intend to cause harm to anyone. 28 B. Common Law Manslaughter—Heat of Passion The doctrine of common law voluntary manslaughter evolved from the recognition that those who kill in the heat of passion are less culpable than those who commit premeditated murders. 29 In England during the seventeenth century, the code of honor ‚required that a respectable man physically retaliate against any perceived affront.‛30 In other words, a man was justified for physically retaliating against any person who displayed disrespect or provoked him.31 However, the law required that all intentional homicides be punished by death. 32 In order to satisfy the code of honor in the face of the law and potential punishment of death, a compromise was struck between the code of honor and the law resulting in the doctrine of voluntary manslaughter.33 Although voluntary manslaughter was considered an intentional homicide, it afforded the 24 MODEL PENAL CODE § 210.3 cmt. 1 at 44; see infra Part I.B. MODEL PENAL CODE § 210.3 cmt. 1 at 45. 26 JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 295 (5th ed. 2009). 27 See, e.g., 720 ILL. COMP. STAT. 5/9-3 (Supp. 2011). This Note only deals with voluntary manslaughter; therefore, whenever the term ‚manslaughter‛ is used, it is in reference to voluntary manslaughter. 25 28 See infra notes 29-32 and accompanying text. Robert B. Mison, Comment, Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation, 80 CALIF. L. REV. 133, 137 (1992) (‚The moral culpability of the defendant, therefore, provided the basis for drawing the distinction between murder and manslaughter.‛). 29 30 Miller, supra note 8, at 671. Dressler, supra note 6, at 970 (explaining that in seventeenth-century England, a man who disproportionately retaliated in the face of provocation would be found guilty of manslaughter; if the retaliation was grossly disproportionate, it would be considered murder). 31 32 33 Miller, supra note 8, at 671. Id. CLAVEL - FINAL (DO NOT DELETE) 334 2/1/2012 3:02 PM New England Law Review v. 46 |329 defendant a reduced punishment. 34 Common law manslaughter is comprised of three elements: (1) the killing was committed in the heat of passion; (2) the heat of passion was produced by adequate provocation; and (3) the killing occurred without sufficient time for the defendant to ‚cool off.‛35 Early modern law restricted adequate provocation to four categories that became known as the ‚nineteenth century four‛: witnessing a spouse’s adultery,36 mutual combat, false arrest, and a violent assault.37 If the defendant’s situation did not fit into any of these categories then the provocation was insufficient to raise the provocation defense. 38 In a murder trial, prior to instructing the jury on the lesser included offense of manslaughter, a judge would determine whether the victim’s conduct constituted legally adequate provocation fitting into one of the four established categories. 39 If the victim’s conduct did not fit into one of the four categories, the jury would not be instructed on manslaughter.40 Likewise, if there was significant time between when the provocation occurred and when the killing occurred, the heat-of-passion defense was unavailable because there was enough time for the defendant to ‚cool off.‛41 If there was significant time to ‚cool off‛ (and thus allow the defendant time to reflect on his feelings and actions), then the law presumed that the homicide was committed with premeditation and deliberation.42 The common law also barred the use of the heat-of-passion defense when someone other than the person causing the provocation was killed, such as a third party. 43 In this sense, there must be ‚a causal 34 See id. Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 305 (1996). 35 36 For an enlightening discussion regarding how this category evolved, see Miller, supra note 8, at 672 (‚Having violated cultural norms and been subjugated by property law, a wife who committed adultery was deemed to have ‘provoked’ her husband’s violence.‛). The ‚classic provocation paradigm‛ involved catching one’s spouse in the ‚commission of adultery‛ and more particularly, ‚adultery committed by women as opposed to men.‛ Eric Y. Drogin & Ryan Marin, Commentary, Extreme Emotional Disturbance (EED), Heat of Passion, and Provocation: A Jurisprudent Science Perspective, 36 J. PSYCHIATRY & L. 133, 135 (2008). 37 Nourse, supra note 13, at 1341. See Brown v. United States, 584 A.2d 537, 540 (D.C. 1990). 39 Id. 40 See id. 41 See Kahan & Nussbaum, supra note 35, at 305. 42 Antonia Elise Miller, Note, Inherent (Gender) Unreasonableness of the Concept of Reasonableness in the Context of Manslaughter Committed in the Heat of Passion, 17 WM. & MARY J. WOMEN & L. 249, 262 (2010). 38 43 Irene Merker Rosenberg & Yale L. Rosenberg, “Cain Rose Up Against His Brother Abel and CLAVEL - FINAL (DO NOT DELETE) 2012 Heat of Passion, the MPC, and Domestic Violence 2/1/2012 3:02 PM 335 connection between the provocation, the passion, and the fatal act.‛44 In addition, mere words or insults were not enough to prove adequate provocation;45 provocation often required some sort of physical conflict such as violent assault or mutual combat. 46 Witnessing adultery was the only major category that did not require any sort of physical provocation,47 making it an anomaly in the provocation doctrine.48 At the defense’s inception, property law justified the doctrine’s use in instances when a husband killed his wife after catching her in an adulterous act.49 Indeed, it is this very example that many scholars refer to as the doctrine’s archetype, sufficient enough to mitigate charges from murder to manslaughter.50 Today, nearly all jurisdictions recognize adultery as a legitimate situation in which a man may claim the defense.51 As the heat-of-passion defense evolved in American law, the rigid categories were somewhat abandoned, and the belief emerged that the jury should determine the adequacy of the provocation.52 The standard used by juries to determine what constitutes adequate provocation was the objective, reasonable-man standard.53 In order for the provocation to be considered adequate, ‚it must be calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.‛54 The ‚modern‛ view saw provocation as undefined and ‚probably incapable of exact definition‛ and thus ‚must vary with the Killed Him”: Murder or Manslaughter?, 30 GA. J. INT’L & COMP. L. 37, 42-43 (2001). But cf. MODEL PENAL CODE § 210.3 cmt. 5 at 60-61 (1980) (‚Under the Code, mitigation may be appropriate where the actor believes that the deceased is responsible for some injustice to another or even where he strikes out in a blinding rage and kills an innocent bystander.‛). 44 Girouard v. State, 583 A.2d 718, 721 (Md. 1991). 45 See, e.g., id. at 722-23 (holding that mere words alone are not adequate provocation). 46 Miller, supra note 8, at 673. 47 Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. CAL. REV. L. & WOMEN’S STUD. 71, 73 (1992). 48 For an interesting discussion regarding this anomaly, see id. Miller, supra note 8, at 667. 50 Coker, supra note 47, at 72 & n.6 (‚In fact, English and American jurists and legal scholars repeatedly refer to adultery as the paradigm example of provocation adequate enough to mitigate what would otherwise be murder to a voluntary manslaughter conviction.‛). 49 51 Id. at 72 & n.5. See Brown v. United States, 584 A.2d 537, 544 (D.C. 1990) (holding that despite being an unrecognized category of adequate provocation, there was sufficient evidence that the defendant ‚was so provoked by her mother’s conduct *as+ to create a jury issue *of provocation+‛). 52 53 54 See Girouard v. State, 583 A.2d 718, 722 (Md. 1991). Id. (citations omitted) (internal quotation marks omitted). CLAVEL - FINAL (DO NOT DELETE) 336 2/1/2012 3:02 PM New England Law Review v. 46 |329 myriad shifting circumstances of men’s temper and quarrels.‛55 Whether there was reasonable time for the defendant to ‚cool off‛ was also originally an issue for the judge to decide, although it is now often a question of fact to be decided by the jury.56 C. Model Penal Code Manslaughter—EEMD Nearly thirty-four states have revised their criminal codes significantly and adopted modern legal doctrines in light of, and inspired by, the MPC. 57 However, of these thirty-four jurisdictions, only eleven have adopted the MPC’s language regarding EEMD.58 The remaining twenty-three MPC jurisdictions have retained the common law provocation formulations or similar variations of it.59 The MPC defines manslaughter as: a homicide which would otherwise be murder [but] is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shal [sic] be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be. 60 The MPC formulation of manslaughter expanded the common law heat-ofpassion defense in a number of ways. 61 For instance, the MPC introduced the concept of ‚extreme emotional or mental disturbance,‛62 which essentially replaced the common law requirement of adequate provocation.63 The EEMD standard has been defined as containing two key components: (1) that the defendant acted under the influence of the EEMD; and (2) there must have been a ‚reasonable explanation or excuse‛ for the EEMD.64 The first requirement is entirely subjective and ensures that the EEMD was, in fact, the driving 55 Brown, 584 A.2d at 542 (quoting Commonwealth v. Pease, 69 A. 891, 892 (Pa. 1908)). DRESSLER, supra note 26, at 270. 57 Paul H. Robinson, Abnormal Mental State Mitigations of Murder: The U.S. Perspective, in LOSS OF CONTROL AND DIMINISHED RESPONSIBILITY: DOMESTIC, COMPARATIVE AND INTERNATIONAL PERSPECTIVES 291, 302 (Alan Reed & Michael Bohlander eds., 2011). 58 See Id. For an analysis as to why some MPC jurisdictions have not adopted the MPC EEMD formulation, see id. at 304 (‚It seems that the resistance is primarily a legislative animal. . . [since] homicide, especially intentional homicide, as the most serious offense in American criminal law, has special status in the politics of crime.‛). 59 Id. at 302. 60 MODEL PENAL CODE § 210.3 (1980). 61 Id. § 210.3 cmt. 5 at 60-62 (discussing the numerous ways in which the MPC expanded the provocation doctrine). 56 62 63 64 See id. § 210.3. See Miller, supra note 8, at 674. MODEL PENAL CODE § 210.3(1)(b). CLAVEL - FINAL (DO NOT DELETE) 2012 2/1/2012 3:02 PM Heat of Passion, the MPC, and Domestic Violence 337 force behind the action.65 However, the second requirement is a more difficult standard to apply because of its mixture of both objective and subjective considerations.66 The drafter of the MPC, the American Law Institute (‚ALI‛), chose to introduce the EEMD and ‚reasonable explanation‛ language (rather than retain the reasonable-man standard) in order to provide a standard that could be ‚more individually tailored to the defendant’s situation.‛67 To accomplish this, the ALI specifically designed a standard that would take into account subjective as well as objective elements.68 The ‚reasonable explanation or excuse‛ is an attempt to preserve a sense of objectivity so that the standard does not become a ‚debilitating individualization of the legal standard.‛69 However, the reasonableness of the explanation must be evaluated from the ‚viewpoint‛ of someone in the actor’s individual ‚situation.‛70 When doing so, the inquiry takes on a subjective nature which attempts to account for external circumstances, such as ‚blindness, shock from traumatic injury, and extreme grief.‛71 The ALI explicitly chose the term ‚situation‛ for its ambiguity with the hope that it would allow flexibility in the standard.72 The ALI was concerned that without looking subjectively at the individual actor’s situation, the mitigating defense of manslaughter would be ‚morally obtuse.‛73 Consequently, this level of flexibility provides juries with a greater level of discretion. 74 The ALI was also concerned that the standard might become too subjective and would allow for idiosyncratic beliefs to influence ‚reasonableness.‛75 The ALI made it clear, however, that ‚idiosyncratic moral values are not part of the actor’s situation. . . . Any other result would undermine the normative message of the criminal law.‛76 For example, an assassin who kills a political leader because he thinks it is right 65 People v. Casassa, 404 N.E.2d 1310, 1316-17 (N.Y. 1980) (discussing the Model Penal Code formulation of manslaughter); Robinson, supra note 57, at 294. 66 67 68 69 70 71 72 73 74 75 76 Casassa, 404 N.E.2d at 1316-17; Miller, supra note 8, at 675. MODEL PENAL CODE § 210.3 cmt. 5 at 61-63; Miller, supra note 8, at 674 & n.80. See MODEL PENAL CODE § 210.3 cmt. 5 at 61-63. Id. at 62. MODEL PENAL CODE § 210.3(1)(b) (Proposed Official Draft 1962). MODEL PENAL CODE § 210.3 cmt. 5 at 62 (1980). Id. at 62-63. Id. at 62. Miller, supra note 8, at 669. MODEL PENAL CODE § 210.3 cmt. 5 at 62-63. Id. at 62. CLAVEL - FINAL (DO NOT DELETE) 338 2/1/2012 3:02 PM New England Law Review v. 46 |329 to do so is not to be judged against the standard of a reasonable extremist. 77 ‚[T]he question is whether the actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen.‛78 There were other significant changes in the ALI’s formulation of manslaughter as well.79 Most notably, the ALI not only rejected the rigid categories of adequate provocation found under the common law, but it made no mention of the categories at all.80 Whereas under the common law adequate provocation first was decided by the judge before instructing the jury on the lesser included offense of manslaughter,81 under the MPC the court is permitted to instruct the jury of the lesser included offense if a rational jury could find that the defendant acted under EEMD, for which there is a ‚reasonable explanation or excuse.‛82 By rejecting the rigid common law categories, the ‚basis for mitigation‛ has essentially become enlarged, resulting in a greater variety of cases claiming EEMD. 83 The MPC also permits a ‚cooling off‛ period.84 At common law, the ‚cooling off‛ period negated any claim to actions resulting from the heat of passion.85 The MPC, however, acknowledges that the provocation and the resulting EEMD may not necessarily decrease over time, but could actually increase.86 Another distinction is that the MPC does not require the victim to have necessarily caused the provocation; therefore, under the MPC a defendant can use the EEMD defense even when a third party is the victim, such as an innocent bystander whom the defendant believed, albeit mistakenly, was responsible for the action that provoked the defendant.87 77 Id. Id. at 63 (emphasis added). 79 See id. at 60 (‚Section 210.3 of the Model Code continues a modified and substantially enlarged version of the rule of provocation.‛). 78 80 See id. at 61; Miller, supra note 8, at 674. Brown v. United States, 584 A.2d 537, 540 (D.C. 1990). 82 MODEL PENAL CODE § 1.07(5) (explaining that a jury is not to be instructed ‚unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense‛); see also id. § 210.3(1)(b). 81 83 MODEL PENAL CODE § 210.3 cmt. 5 at 61 & n.55 (‚This development *of rejecting the common law categories] reflects the trend of many modern decisions to abandon preconceived notions of what constitutes adequate provocation and to submit that question to the jury’s deliberation.‛). 84 See People v. Casassa, 404 N.E.2d 1310, 1314 (N.Y. 1980) (discussing New York Penal Law of manslaughter that adopted the language of the Model Penal Code’s manslaughter provision). 85 Id. 86 Robinson, supra note 57, at 294. 87 See MODEL PENAL CODE § 210.3 cmt. 5 at 61 (‚By eliminating any reference to provocation in the ordinary sense of improper conduct by the deceased, the Model Code CLAVEL - FINAL (DO NOT DELETE) 2012 2/1/2012 3:02 PM Heat of Passion, the MPC, and Domestic Violence 339 II. The Wrong—The Model Penal Code and Domestic Violence The voluntary manslaughter doctrine has troubled feminists for years because of its sexist beginnings in property law and its continued accommodation toward primarily male defendants. 88 Feminist scholars argue that the concept of voluntary manslaughter has ‚never been a female-friendly doctrine.‛89 Old English Law restricted adequate provocation to circumstances involving a husband witnessing his wife’s adultery because ‚adultery was considered the highest invasion of a husband’s property.‛90 The husband was then justified in protecting his property, although only partially, since his murder charge would then be mitigated to manslaughter.91 Furthermore, he was expected to protect his ‚most precious property: his wife.‛92 In cases of adultery and provocation, the defendant will often blame the victim (or spouse) for his loss of self-control.93 The defendant will sometimes claim that his partner’s indiscretions made her deserving of the homicide or beating.94 One feminist scholar asks, ‚[C]ould it be said that in all cases where provocation is raised successfully, the victims have provoked their own demise?‛95 According to feminists, the provocation doctrine allows the defendant to place the blame on his spouse or at least turn the spotlight from his own behavior to the victim’s actions.96 Feminists also have other concrete and statistically valid reasons for why the provocation defense is insidious.97 With its sexist roots in property law, voluntary manslaughter has perpetuated gender stereotypes in both the common law and MPC formulations.98 First, jurors import their own avoids arbitrary exclusion of some circumstances that may justify reducing murder to manslaughter.‛). 88 See Miller, supra note 42, at 253-57 (explaining that even though women are no longer viewed as the property of men, the historical—and continued—lack of protection for women under voluntary manslaughter is attributable to male domination in the creation and development of the doctrine). 89 Miller, supra note 8, at 667. Dressler, supra note 6, at 967-68 (internal quotation marks omitted). 91 Id. at 968. 92 Miller, supra note 42, at 256. 93 Coker, supra note 47, at 75. 94 Id. 95 Adrian Howe, More Folk Provoke Their Own Demise (Homophobic Violence and Sexed Excuses—Rejoining the Provocation Law Debate, Courtesy of the Homosexual Advance Defence), 19 SYDNEY L. REV. 336, 336-37 (1997). 90 96 97 98 See id. See infra notes 105-07 and accompanying text. See infra note 102 and accompanying text. CLAVEL - FINAL (DO NOT DELETE) 340 2/1/2012 3:02 PM New England Law Review v. 46 |329 gender biases into their determinations of what is ‚reasonable,‛ when evaluating voluntary-manslaughter claims.99 And second, the expansion of the provocation doctrine allows more men, who kill their spouses, to charge juries with manslaughter.100 Although the manslaughter doctrine was initially only afforded to male defendants who witnessed their wives’ adultery, in 1946, nearly 275 years after it was first conceived, English courts finally recognized that the provocation defense should also be available to women who killed their husbands after catching them in an adulterous act.101 Despite this recognition, feminists argue that the provocation doctrine is disproportionately successful with male defendants.102 The provocation defense is a mechanism by which jurors are able to reinforce gender stereotypes about men and women and thus condone male aggression towards females.103 Feminists claim that men are inherently more violent than women and therefore have greater opportunities to raise the defense. 104 In addition, societal beliefs condone male aggression in response to spousal infidelity much more often than for women in similar situations.105 In this sense, society recognizes that males are, and will be, inherently more aggressive than females.106 If a man responds with aggression it is deemed appropriate, whereas if a woman responds with aggression it is deemed inappropriate.107 Society teaches women not to be ‚surprised by male infidelity, and to respond to their husbands’ indiscretions in a less violent manner than would be expected from husbands discovering their wives’ infidelities.‛108 It is more socially acceptable for a man to commit adultery or be aggressive than it is for a woman.109 Feminists argue that this gender bias is deeply embedded within any provocation theory, whether it be EEMD or common law based, because 99 Miller, supra note 42, at 269-72. See Singer, supra note 5, at 296 (describing a case that ‚clearly would never have qualified for a provocation instruction under the common law at its most lenient‛). 101 Miller, supra note 42, at 257. 102 See id. at 265-67, 270-72. 103 Dressler, supra note 6, at 976. 104 See Miller, supra note 42, at 253-54 (‚The high percentage of male homicide perpetrators and victims indicates that homicide itself is an overwhelmingly male act.‛). 100 105 Id. at 270-71. 106 Coker, supra note 47, at 72 & n.5; see Miller, supra note 42, at 271. 107 Coker, supra note 47, at 72 & n.5; see Miller, supra note 42, at 271. Miller, supra note 42, at 271. 109 See id. (‚Accordingly, a woman who kills in the heat of passion has strayed much further from social norms than men who kill under similar circumstances.‛). 108 CLAVEL - FINAL (DO NOT DELETE) 2012 Heat of Passion, the MPC, and Domestic Violence 2/1/2012 3:02 PM 341 jurors will always base ‚reasonableness‛ upon the gender of the defendant.110 When determining the reasonableness of a defendant’s actions, jurors will always refer back to their deeply ingrained gender stereotypes about what is appropriate or inappropriate for a man or woman to do in a domestic setting.111 Jurors are often unaware of gender bias because of how deeply ingrained these stereotypes have become in our culture.112 These stereotypes allow a disproportionate number of men to use, and be successful with, the defense.113 However sexist the common law heat-of-passion doctrine may be, the revision outright rejected the ‚sexist legacy of property law‛ and replaced it with a more subjective analysis of the defendant’s state of mind hoping that it would rectify any sort of gender bias.114 Despite this hope, feminist scholars argue that the MPC has in fact only ‚further entrenched patterns of masculine violence against women.‛115 Professor Victoria Nourse conducted a study of manslaughter cases she refers to as ‚departure‛ claims.116 Departure claims ‚involve a wide range of situations inspiring rage, from divorce to rejection, from protective orders to broken engagements.‛117 She found that in MPC jurisdictions, over one-quarter of these claims reached the jury, whereas in common law jurisdictions, none of these claims were able to reach the jury. 118 Hence, the MPC has allowed manslaughter to be claimed in a greater variety of cases than under the common law.119 In fact, MPC jurisdictions have been known to allow manslaughter claims to go to the jury in extreme cases, such as when a woman was killed for dancing with another man. 120 Under the common law, seeing your spouse dancing with another person would not have been adequate provocation since it did not fit into any of the four 110 Id. at 271-72. Miller, supra note 8, at 669. 112 Miller, supra note 42, at 265-66 (‚Even though society has progressed in its views of the marital relationship, thousands of years of viewing women as the marital property of their husbands is not easily erased.‛). 111 113 See id. at 270-71. Miller, supra note 8, at 668; MODEL PENAL CODE § 210.3 cmt. 5 at 61 (1980) (explaining that the MPC ‚sweeps away the rigid rules that limited provocation to certain defined circumstances‛ and instead ‚casts the issue in phrases that have no common-law antecedents and hence no accumulated doctrinal content‛). 114 115 116 117 118 119 120 Miller, supra note 8, at 668. Nourse, supra note 13, at 1352. Id. at 1353. Id. at 1352. See Singer, supra note 5, at 296. Miller, supra note 8, at 669. CLAVEL - FINAL (DO NOT DELETE) 342 2/1/2012 3:02 PM New England Law Review v. 46 |329 accepted categories.121 Feminists are worried that the expansion of the provocation defense under the MPC has allowed more batterers to claim manslaughter when they kill their spouses.122 In addition, feminists are concerned with the gender stereotypes inherent in juries that reinforce and condone male aggression towards women.123 ANALYSIS III. Righting the Wrong—Finding a Solution to Abolitionists’ Concerns A. The Value in the Provocation Defense and the EEMD Standard Despite the criticism of the provocation defense in general, and EEMD in particular, the manslaughter doctrine remains important and valuable in American criminal law because it considers natural human weakness. 124 In addition, EEMD is a more appropriate standard to apply because it expands the common law’s heat-of-passion defense.125 However, this expansion has shown to be a double-edged sword.126 On the one hand, the EEMD standard expands the doctrine so that a wider variety of cases can utilize its mitigating factors.127 On the other hand, the expansion has resulted in the doctrine’s abuse in cases of domestic violence.128 However, the essential value of the manslaughter doctrine lies in recognizing the frailty of human will.129 The ALI explained that the provocation doctrine is the law’s recognition that [an] inquiry into the reasons for the actor’s formulation of an intent to kill will sometimes reveal factors that should have significance in grading. . . . It is a concession to human weakness . . . a recognition of the fact that one who kills in response to certain provoking events should be regarded as demonstrating a significantly different character deficiency than 121 See Nourse, supra note 13, at 1341; supra Part I.B. See Nourse, supra note 13, at 1388-89. 123 See Miller, supra note 42, at 270-71. 124 See MODEL PENAL CODE § 210.3 cmt. 5 at 55 (1980). 125 See id. at 60-61 (‚Section 210.3 . . . sweeps away the rigid rules *of the common law+ that limited provocation to certain defined circumstances.‛). 126 See infra notes 133-34 and accompanying text. 127 MODEL PENAL CODE § 210.3 cmt. 5 at 61. 128 See Howe, supra note 95, at 336-37 (explaining that in cases of domestic violence the defense of EEMD could be seen as victim blaming). 122 129 MODEL PENAL CODE § 210.3 cmt. 5 at 55. CLAVEL - FINAL (DO NOT DELETE) 2012 Heat of Passion, the MPC, and Domestic Violence 2/1/2012 3:02 PM 343 one who kills in their absence.130 Theoretically, this means that a person who plans, deliberates, and executes a homicide has a significantly different character flaw than a person who reacts violently in the midst of provocation or EEMD and ultimately causes the death of another human being. 131 For example, consider the difference between Ted Bundy, who methodically planned out his murders of over thirty-five young women,132 and Ellie Nesler, a mother who shot and killed her son’s alleged child molester.133 Another example is that of John Gounagias, who killed his coworker after the coworker forcibly sodomized him two weeks earlier.134 After the rape occurred, the coworker bragged about the rape to various people in the community.135 These people then ridiculed and taunted Gounagias until he finally shot and killed the coworker. 136 Under the common law this was not considered manslaughter, but under the MPC it could have been.137 In this regard, the MPC’s formulation of manslaughter does a better job at grading offender blameworthiness than the common law. 138 Some might argue, however, that there is no evidence supporting a claim that a person who kills in the heat of passion is any less dangerous than a person who premeditates and deliberates before committing murder.139 At first glance, this seems accurate. For example, a shorttempered, aggressive person who is easily provoked surely seems just as dangerous, if not more so, than your average, garden-variety murderer.140 However, dangerousness is not the true characteristic that should be looked at when discussing intentional homicides.141 Rather, lethality is a more appropriate characteristic by which to judge these individuals.142 130 Id. See id. at 54. 132 See generally ANN RULE, THE STRANGER BESIDE ME 218 (1980) (describing how Ted Bundy would dress in multiple layers of clothes so that he could change out of the bloodsoiled clothes quickly). 131 133 See Mother in Courtroom Slaying Calls Jail Term Fair, N.Y. TIMES, Jan. 9, 1994, at 20. People v. Gounagias, 153 P. 9, 10 (Wash. 1915). 135 Id. 136 Id. 137 Robinson, supra note 57, at 306. 138 Id. 139 Dressler, supra note 6, at 964-65. 140 See id. 141 Danger has little to do with the law of homicide because danger does not necessarily implicate lethality. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 573 (1986) (defining ‚dangerous‛ as ‚able or likely to inflict injury‛ but makes no mention of death). 134 142 See id. at 778 (defining ‚lethal‛ as ‚of or causing death; deadly; fatal‛). CLAVEL - FINAL (DO NOT DELETE) 344 2/1/2012 3:02 PM New England Law Review v. 46 |329 Whether or not a person is dangerous has no bearing on how lethal he or she is.143 A short-tempered, aggressive person certainly could be just as dangerous as a murderer.144 It does not follow, however, that a shorttempered, aggressive individual is necessarily just as lethal as a murderer.145 Short-tempered, aggressive people can be unsafe and cause injury to others often.146 It may therefore seem that these people are at a higher risk to become lethal in the future, but this is not necessarily the case.147 It is possible that a short-tempered, aggressive (and even ‚dangerous‛) person may, in fact, never become lethal.148 It follows that short-tempered, aggressive, easily provoked people are not as lethal as ordinary murderers.149 It is this difference in lethality that accounts for the character deficiencies that the ALI alluded to when drafting the MPC. 150 Additionally, modern-day psychology supports a finding that genuine loss of self-control in the face of provocation, or stress, can and does occur.151 The fight-or-flight response, discovered by Harvard physiologist Walter Cannon in the early twentieth century, describes humankind’s primal response to fight or flee in the face off a perceived attack, harm, threat, or stress.152 The fight-or-flight mechanism is hard wired in our brains and has been passed down to us from our ancient ancestors who were often living in dangerous and unpredictable environments. 153 The response helped protect us from perceived threat and unbearable stress. 154 When the response is activated, various chemicals in our brains are 143 See supra notes 141-142 and accompanying text. Dressler, supra note 6, at 964-65. 145 See supra notes 141-143 and accompanying text. 146 Dressler, supra note 6, at 964-65; see Aggressive Behavior, CHANGINGMINDS.ORG, http://changingminds.org/techniques/assertiveness/aggressive_behavior.htm (last visited Jan. 30, 2012) (‚Aggressive people often uses *sic+ anger . . . *and+ other threatening behavior to bully, subjugate and dominate other people.‛). 147 See supra notes 143-145 and accompanying text. 148 See supra note 145 and accompanying text. 149 Contra Dressler, supra note 6, at 964-65. 150 MODEL PENAL CODE § 210.3 cmt. 5 at 55 (1980). 151 See Drogin & Marin, supra note 36, at 140 (‚No one is always 100% logical; the superego is not perfect.‛); Neil F. Neimark, The Fight or Flight Response, MIND/BODY EDUCATION CENTER, http://www.thebodysoulconnection.com/EducationCenter/fight.html (last visited Jan. 30, 2012). 152 Neimark, supra note 151. There is also a third response to stress that often comes before fight or flight: freezing. Fight-or-Flight Reaction, CHANGINGMINDS.ORG, http:// changingminds.org/explanations/brain/fight_flight.htm (last visited Jan. 30, 2012). 144 153 See Neimark, supra note 151 (‚Our fight or flight response is designed to protect us from the proverbial saber tooth tigers that once lurked in the woods and fields around us, threatening our physical survival.‛). 154 Id. CLAVEL - FINAL (DO NOT DELETE) 2012 Heat of Passion, the MPC, and Domestic Violence 2/1/2012 3:02 PM 345 released that prepare us, physically and psychologically, for fight or flight.155 ‚By its very nature, the fight or flight system bypasses our rational mind—where our more [sensible] beliefs exist—and moves us into ‘attack’ mode.‛156 Once the response has been triggered, we are no longer able to think clearly about long-term consequences for our actions, and instead we become solely focused on our short-term survival.157 Since we do not live in the hostile environments of our ancient ancestors, our fight-or-flight response is often triggered by common, everyday stressors, such as rushhour traffic, missing a deadline, or having an argument with a boss or spouse.158 The fight or flight response in no way provides a justification or an excuse for people killing in the heat of passion or under EEMD,159 but it does provide an explanation and insight as to why some people behave so abhorrently when faced with perceived stressors. 160 In addition, these findings support the argument that, under stressful or threatening circumstances, people do things that they would not ordinarily do.161 The ALI recognized this human weakness and concluded that it justified mitigating murder to manslaughter. 162 It follows then, that if we abolish the provocation defense in its entirety, either through the common law or MPC, we are essentially saying that all killings are equal in terms of culpability.163 This throws the baby out with the bathwater.164 In any event, the provocation defense is worthy of protection because of its consideration of human weakness.165 155 Id. Id. 157 Id. 158 Id. However, we must remain vigilant of our fight-or-flight response in order to deal with stress in a healthier way than fighting or fleeing. Id. 156 159 There has been much debate surrounding the rationale behind the manslaughter doctrine, specifically whether it is a justification or excuse. This Note does not attempt to argue whether provocation is a justification or excuse, but rather only to hopes to show that regardless of this debate, it is an important doctrine in light of modern-day psychology and is worthy of retention in American law. For further information on this debate, see Vera Bergelson, Justification or Excuse? Exploring the Meaning of Provocation, 42 TEX. TECH L. REV. 307 (2009) and Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. CRIM. L. & CRIMINOLOGY 421 (1982). 160 See Neimark, supra note 151. 161 Id. (explaining that when the fight-or-flight response is triggered, our rational mind is no longer able to regulate our actions). 162 163 164 165 See supra Part I.C. See supra Part I.C. See Miller, supra note 8, at 693 (arguing for abolition of the entire provocation defense). See Dressler, supra note 6, at 978 (arguing that the importance of the doctrine is that it CLAVEL - FINAL (DO NOT DELETE) 346 2/1/2012 3:02 PM New England Law Review v. 46 |329 EEMD is also a more appropriate standard to use because of its departure from the ‚reasonable man‛ analysis that has been employed in various areas of the law, including the common law heat-of-passion defense.166 There have been countless criticisms of the ‚reasonable man‛ standard.167 For example, arguments have been made that the standard is too objective and does not take into account critical traits of the defendants.168 However, the ‚particularizing‛ standard of EEMD takes into account the peculiarities of the individual and unique defendant 169 and ‚does not hold defendants to an unrealizable standard of conduct.‛170 By allowing the jury to consider more factors and to get a richer view of the situation, the MPC provides a more accurate and unique standard against which the defendant’s actions may be judged.171 By retaining both subjective and objective elements, EEMD represents a more particularized standard without becoming too individualized.172 The drafters’ intent was to formulate a standard that would provide ‚sufficient flexibility to differentiate between those special factors in the actor’s situation which should be deemed material . . . and those which properly should be ignored.‛173 The ALI implicitly acknowledged that some factors, perhaps such as domestic violence, should be outright ignored in terms of mitigating murder to manslaughter. 174 Although the drafters never explicitly raised the subject of domestic violence, they were well aware that some factors are just too idiosyncratic to be taken into account.175 The issue of domestic violence is one crime that society does not appear willing to condone or garner sympathy for. 176 ‚recognizes the fact that anger (and other emotions) can affect self-control,‛ and that it ‚does not exist to justify or condone male violence or female victimization‛). 166 See supra Part I.C. See, e.g., Kevin Jon Heller, Beyond the Reasonable Man? A Sympathetic but Critical Assessment of the Use of Subjective Standards of Reasonableness in Self-Defense and Provocation Cases, 26 AM. J. CRIM. L. 1 (1998). 167 168 See id. at 30-55. Id. at 85. 170 Id. at 85-86. 171 See MODEL PENAL CODE § 210.3 cmt. 5 at 62-63 (1980); supra Part I.C. 172 MODEL PENAL CODE § 210.3 cmt. 5 at 61-62; see supra Part I.C. 173 MODEL PENAL CODE § 201.3 at 48 (Tentative Draft No. 9 1959). 174 See MODEL PENAL CODE § 210.3 cmt. 5 at 62 (1980) (‚*I+diosyncratic moral values are not part of the actor’s situation.‛). 169 175 Id. See Timeline of Milestones, MILLENNIUM: ENDING DOMESTIC VIOLENCE, http:// www.dvmillennium.org/TimelineFP.htm (last visited Jan. 30, 2012) (documenting the growing movement to end domestic violence). 176 CLAVEL - FINAL (DO NOT DELETE) 2012 2/1/2012 3:02 PM Heat of Passion, the MPC, and Domestic Violence 347 Furthermore, despite manslaughter’s ability to ‚mitigate‛ a murder charge, manslaughter is still a serious crime with serious consequences.177 A manslaughter conviction by no means allows a defendant to ‚get off the hook.‛178 B. Concerns with the Leading Revisionist Theory—Degrading the Value of the Provocation Defense and Focusing on Misleading Circumstances Abolitionists’ desire to rid American law of the manslaughter doctrine is far too severe in light of the values the doctrine has to offer and will not result in true justice.179 However, some feminists posit revisions to the provocation defense that will restrict the doctrine’s potential for abuse.180 Professor Victoria Nourse’s theory of revision for the provocation defense, arguably the seminal article on the topic, offers a restriction based upon the provoker’s actions.181 In order to use the provocation defense, Nourse’s revision would require a defendant to prove that the provoking party committed a criminal wrong or a wrong that society is willing to punish. 182 She argues that this revision would bar most, if not all, intimate homicide cases because adultery, for example, is neither a crime in modern American law nor an act that society is willing to punish.183 Therefore, when a man witnesses his wife committing adultery, he would be unable to raise the defense because the provoking action—the adultery—is neither a criminally sanctionable act nor a wrong which society should garner sympathy for.184 However interesting Nourse’s suggested revision may be, it is far too restrictive and misguided in its focus on the victim’s actions.185 The heart of the provocation defense is its recognition of the frailty of human volition.186 Nourse would like us to look at the provoking incident, or the decedent’s 177 See Nourse, supra note 13, at 1341. See id. at 1341 & n.66. 179 See infra Part III.C. 180 See, e.g., Nourse, supra note 13, at 1337-38. 181 Id. at 1396 (‚When a defendant asks for our compassion, he asks us to allow him to legislate vis-à-vis his victim, to claim that we should share his emotional assessment of wrongdoing and blame.‛); see Ramsey, supra note 11, at 39 n.17. 182 See Nourse, supra note 13, at 1396. 183 Id. 184 See id. 185 See infra notes 186-188 and accompanying text. 186 See MODEL PENAL CODE § 210.3 cmt. 5 at 62-63 (1980) (proposing a flexible standard that could take into account the totality of the circumstances); supra Part III.A. 178 CLAVEL - FINAL (DO NOT DELETE) 348 2/1/2012 3:02 PM New England Law Review v. 46 |329 actions, to determine whether the provocation defense should be raised. 187 However, this essentially ignores the fact that some people act in ways that are contrary to their true beliefs, and when this occurs the murder charge should be mitigated to manslaughter. 188 Whether the provoking act was a criminal wrong has no bearing on the key question concerning the defendant’s actions: Did the defendant act in the heat of passion or under EEMD?189 Nourse’s revision has the potential to turn the defendant’s trial into a trial of the victim and her actions rather than evaluating the entire circumstances of the relationship and the defendant’s actions.190 Nourse’s study of ‚departure‛ claims, on which she heavily relies to support her theory of revision, is also misguided by its focus on ‚departure.‛191 It has long been known that the most dangerous time for a woman in an abusive relationship is when she is attempting to leave the relationship; however, this fact alone should not focus our attention solely on ‚departure.‛192 It is important to remember that the vast majority of intimate-partner homicides are precipitated by acts of domestic violence during the relationship.193 Therefore, theories of revision should go to the heart of the problem and focus on the relationship itself—specifically, the reoccurring domestic violence within the relationship and the abuser’s attempt to control his spouse.194 Nourse’s revision unfortunately focuses on the obvious trigger or symptoms of the problem; namely, the danger involved in trying to leave the relationship, whether by moving out or filing for divorce.195 Nourse’s revision is too restrictive and does not satisfactorily take into account the totality of the circumstances that may show adequate 187 Nourse, supra note 13, at 1396. See supra Part III.A. 189 See supra Part III.A. 190 See supra notes 95-96 and accompanying text. 191 See supra notes 116-118 and accompanying text. 192 See Common Myths and Why They Are Wrong, DOMESTICVIOLENCE.ORG, http:// www.domesticviolence.org/common-myths (last visited Jan. 30, 2012). 193 See Domestic Violence Facts, supra note 7, at 1. ‚*I+n 70-80% of intimate partner homicides . . . the man physically abused the woman before the murder.‛ Id. This statistic may be inaccurate, however, since ‚domestic violence is one of the most underreported crimes.‛ Id. Although Nourse might argue that all intimate-partner homicides are, by their very nature, acts of domestic violence, certainly there are instances (even if extremely rare) in which an intimate partner homicide was the first and only instance of domestic violence. But see id. As this Note argues, these are the only cases that should be allowed to claim the provocation defense. See infra note 209 and accompanying text. 188 194 195 See supra notes 192-193 and accompanying text. See supra notes 116-118 and accompanying text. CLAVEL - FINAL (DO NOT DELETE) 2012 2/1/2012 3:02 PM Heat of Passion, the MPC, and Domestic Violence 349 provocation.196 The danger surrounding ‚departure‛ is only the symptom of the problem, and an effective theory of revision should focus on the heart of the matter—the domestic violence within the relationship.197 C. Righting the Wrong—Categorical Rules of Exclusion Within the MPC’s EEMD As previously shown, feminists appear correct in their claims that the MPC expands the provocation defense to the detriment of female victims of domestic violence.198 However, we should not be so quick to disregard the MPC’s approach because it correctly acknowledges legitimate human weakness.199 In addition, Nourse’s revision, although it is intriguing and sheds light on the EEMD drawbacks, does not provide a workable solution and is far too restrictive than necessary.200 However, by using categorical rules of exclusion, the MPC’s EEMD standard can be improved to help rectify the gender bias, even though there are no quick fixes to solving the country’s deeply entrenched problem of domestic violence.201 Categorical rules that restrict the use of the EEMD defense provide a framework that is workable, prevents abuse of the provocation doctrine, and allows the defense to be raised when appropriate.202 In order to resolve the issues raised by feminists in regard to domestic abusers who kill their spouses and then claim EEMD, categorical exclusionary rules, such as prohibiting EEMD claims when the killing is a product of domestic violence, can prevent abuse of the doctrine and still allow the defense to be used appropriately.203 To do this, the MPC and state legislatures204 must first acknowledge that the defense expanded beyond 196 See supra notes 185-188 and accompanying text. See supra notes 191-194 and accompanying text. 198 See supra Part II. 199 See supra Part III.A. 200 See supra Part III.B. 201 See Domestic Violence Facts, supra note 7, at 1 (citing that ‚*o+ne in every four women will experience domestic violence in her lifetime‛). 202 See infra note 203 and accompanying text. 203 This is similar to the theory supported by many academics in regard to the Homosexual Panic Defense. See, e.g., Mison, supra note 29, at 177-78 (arguing that when a killing occurs in response to a homosexual advance, the homosexual advance should be found to be insufficient provocation as a matter of law); see generally Gary David Comstock, Dismantling the Homosexual Panic Defense, 2 L. & SEXUALITY: REV. LESBIAN & GAY LEGAL ISSUES 81 (1992). 197 204 States can amend their statutes in order to redefine manslaughter and incorporate the suggestions from this Note whether their state has adopted the MPC or common law formulation, although this Note specifically argues that the MPC formulation is better than the common law construction. See supra Part III.A. CLAVEL - FINAL (DO NOT DELETE) 350 2/1/2012 3:02 PM New England Law Review v. 46 |329 the point at which society is willing to condone, namely, the use of the doctrine in situations involving domestic violence.205 As the MPC drafters explicitly rejected the sexist common law antecedents of manslaughter, 206 society and legislatures also need to acknowledge this inappropriate use of the doctrine and resolve to make things right. The question of whether a homicide is a product of domestic violence should be decided by the judge, prior to instructing the jury on the lesserincluded offense of manslaughter. 207 In addition, domestic violence should be defined as a situation in which there has been at least one instance of physical or emotional abuse committed by the defendant against the victim.208 Therefore, if the judge finds sufficient evidence to show that the killing was not the first and only instance of domestic violence throughout the relationship, the defendant would be unable to raise the defense. 209 Looking at the issue of control and the actions by the abuser may also help the judge to determine whether the homicide was a product of domestic violence.210 The judge should consider, inter alia, whether the defendant has been a perpetrator of domestic violence in previous romantic relationships, since batterers often repeat this behavior in subsequent romantic relationships.211 Also, the judge should consider whether the violence was instrumental rather than expressive since much of the current literature on battering observes that domestic violence tends to be instrumental, rather than expressive.212 ‚In other words, the violence is not only an expression of rage, but serves a purpose. In general, that purpose is to control his wife or lover, to gain compliance with his demands.‛213 Although the ALI was concerned that not all instances of provocation could be successfully resolved by a ‚categorization of conduct,‛214 the 205 The ALI has acknowledged the expansion in its commentary to the MPC, but has yet to acknowledge that this expansion has led to an abuse of the doctrine. MODEL PENAL CODE § 210.3 cmt. 5 at 61 (1980) (explaining that the MPC ‚sweeps away the rigid rules that limited provocation to certain defined circumstances‛). 206 See id. 207 See, e.g., Mison, supra note 29, at 177-78 (arguing that the homosexual-advance defense should be found inapplicable as a matter of law). Procedurally, and in practice, the determination would be made by the judge prior to instructing the jury. 208 See What is Domestic Violence?, NAT’L DOMESTIC VIOLENCE HOTLINE, http:// www.thehotline.org/get-educated/what-is-domestic-violence (last visited Jan. 30, 2012) (providing numerous examples of domestic violence). 209 210 211 212 213 214 See supra notes 207-208 and accompanying text. See Coker, supra note 47, at 84-86. See id. at 84-85. See id. at 85-86. Id. at 85. MODEL PENAL CODE § 210.3 cmt. 5 at 61 (1980). CLAVEL - FINAL (DO NOT DELETE) 2012 2/1/2012 3:02 PM Heat of Passion, the MPC, and Domestic Violence 351 categorical rules of exclusion do not attempt to fit conduct into categories, but rather, merely define certain types of conduct as inappropriate uses of the defense.215 In this sense, rather than describing certain categories of adequate provocation, the categorical rules of exclusion describe certain categories of conduct that do not meet the requirements of adequate provocation or legitimate uses of the EEMD defense. 216 Categorically speaking, instances of domestic abuse which result in death of a spouse, whether it be a current or former partner, are illegitimate and inappropriate cases for which heat of passion or EEMD should be raised as a mitigating factor.217 The categorical rules are also easy to apply since their framework is analogous to the common law.218 In fact, the common law did have one category of exclusion: mere words.219 Categorical rules of exclusion still retain the positive aspects of the provocation defense by allowing its use in any other appropriate cases.220 Furthermore, as we have seen, the categorical rules survive feminist critique because the rules limit the use of the EEMD defense.221 CONCLUSION Despite the concerns raised by abolitionist and revisionist scholars regarding the MPC’s EEMD formulation and domestic violence, the provocation defense is valuable and important within American criminal law. The MPC’s formulation rejected the essential elements of its common law ancestor, specifically the categorical inclusions of adequate provocation—the very elements of the defense that helped limit the defense’s application. However, to adopt these inclusions within the EEMD framework would destroy the very heart of the MPC’s EEMD standard. In order to solve all sides of the provocation defense debate, all cases in which the homicide was a product of domestic violence should be excluded from claiming the defense. This categorical exclusion should be applied procedurally by the judge and would restrict the use of the provocation defense, thereby barring domestic abusers from raising it when they kill their spouses. Allowing domestic-violence abusers to claim manslaughter when they kill their spouses is a wrong suffered at the expense of women 215 216 217 218 219 220 221 See supra note 203 and accompanying text. See supra notes 203, 215 and accompanying text. See supra Part II. See Brown v. United States, 584 A.2d 537, 540 (D.C. 1990); Nourse, supra note 13, at 1341. See Girouard v. State, 583 A.2d 718, 722-23 (Md. 1991). See supra notes 215-216 and accompanying text. Compare supra note 203 and accompanying text, with Miller, supra note 8, at 666. CLAVEL - FINAL (DO NOT DELETE) 352 2/1/2012 3:02 PM New England Law Review v. 46 |329 and other victims of domestic violence—a wrong that America can no longer afford. The time has certainly come when the ALI and state legislatures should work to revise the MPC’s EEMD standard so that categorical exclusions will restrict the EEMD’s use to only the appropriate cases.