Defining Provocation and Its Historical Context - Essay Example

Download file to see previous pages Particular consideration will be given to gender-related uses of the defense, in particular about the requirement that the loss of control must be sudden and temporary. This will be of particular relevance given that in generalized terms males tend to be more volatile and likely to respond to provocation immediately whereas females often suppress the desire to retaliate. The cases of battered wives syndrome demonstrate this point as frequently the defendant will not respond to the provocation immediately but will react some time thereafter. Before the acceptance of battered wives syndrome as a recognized defense the courts would often have no alternative but to find the accused guilty of manslaughter as the attack had not been a spontaneous response to a recent attack.

For comparative purposes, this research project will examine the use of provocation in other countries to analyze how the defense has been used in these countries. To give a complete overview of the defense of provocation it will be necessary to consider the availability of other forms of defense and analyze whether such defenses might be more appropriate in certain circumstances. At present, the law will only allow provocation as a defense to murder, given that many violent assaults that do not result in death are often caused by provocation it would be interesting to consider whether the defense of provocation ought to be extended to cover other crimes. This will involve analyzing why the defense used provocation as a defense to murder.

This paper will also consider the recently proposed changes to the law of murder which if implemented will mean that there will be a similar division on the categories of murder as are in operation in the United States of America. This will impact the use of provocation as a defense as this would be used to determine which category of offense the defendant should be charged under. Effectively an accused would not have to raise the issue of provocation at trial as this would have been a determining factor at the point of charge. The proposed changes to the categories of murder would mean that anyone claiming provocation would be charged with second-degree murder as opposed to first-degree murder. This would alter the present system which as it stands relies on reducing a charge from murder to manslaughter. ...Download file to see next pages Read More