Clavel: Righting The Wrong and Seeing Red

CLAVEL - FINAL (DO NOT DELETE)
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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 laws 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
doctrines repeal or revision. However, the MPCs 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
circumstancesmore so than the common laws objective reasonable-man
standardand provides a more accurate view of the homicide against
which to gauge the defendants 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 defenses 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.
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INTRODUCTION
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 MPCs formulation of
manslaughter,4 commonly referred to as extreme emotional or mental
disturbance (EEMD), expanded the common laws 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: IProvocation, 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 defendants punishment or charge. For example, the provocation defense is an
imperfect defense such that it may only reduce a murder charge to manslaughter. BLACKS
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, NATL COALITION
AGAINST DOMESTIC VIOLENCE, 1 (July 2007) [hereinafter Domestic Violence Facts],
http://www.ncadv.org/files/ DomesticViolenceFactSheet(National).pdf.
5
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domestic violence.8 These scholars argue that the MPCs version of

manslaughter expands the common laws 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 MPCs 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 laws conception of the provocation doctrine and its rules of
categorical inclusion (i.e., adultery)16 provide a framework that can lend
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 BLACKS 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, Passions 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.
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itself to the MPCs formulation of the provocation defense and help solve
the issues raised by feminist scholars.17 In memoriam of the common laws
categorical inclusions, categorical rules of exclusionwhich prohibit the
use of the defense in instances where an intimate partner is killed as a
product of domestic violenceallow the benefits of the defense to flourish
while satisfying the issues raised by feminists.18 Like the common laws
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 LawMurder 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.
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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
actors 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 ManslaughterHeat 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

Id.
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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 spouses adultery,36 mutual
combat, false arrest, and a violent assault.37 If the defendants 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 victims conduct constituted legally adequate
provocation fitting into one of the four established categories. 39 If the
victims 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 husbands violence.). The
classic provocation paradigm involved catching ones 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
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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 defenses inception, property law justified the doctrines 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 doctrines 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. INTL & 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. & WOMENS STUD. 71, 73 (1992).
48
For an interesting discussion regarding this anomaly, see id.

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 mothers 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).
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myriad shifting circumstances of mens 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 ManslaughterEEMD
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
MPCs 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 actors
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).
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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 defendants 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 actors 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 actors 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 actors 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.
MODEL PENAL CODE 210.3 cmt. 5 at 62-63.
Id. at 62.
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to do so is not to be judged against the standard of a reasonable extremist. 77

[T]he question is whether the actors loss of self-control can be understood
in terms that arouse sympathy in the ordinary citizen.78
There were other significant changes in the ALIs 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 jurys 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 Codes 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
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II. The WrongThe 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 wifes
adultery because adultery was considered the highest invasion of a
husbands 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 partners 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 victims 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 historicaland continuedlack of protection for women
under voluntary manslaughter is attributable to male domination in the creation and
development of the doctrine).
89

Dressler, supra note 6, at 967-68 (internal quotation marks omitted).
91 Id. at 968.
93 Coker, supra note 47, at 75.
94 Id.
95 Adrian Howe, More Folk Provoke Their Own Demise (Homophobic Violence and Sexed
ExcusesRejoining 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.
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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).
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.
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
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jurors will always base reasonableness upon the gender of the

defendant.110 When determining the reasonableness of a defendants
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 defendants 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.
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

Id. at 1353.
Id. at 1352.
See Singer, supra note 5, at 296.
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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 WrongFinding 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 laws 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 doctrines 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 laws recognition that
[an] inquiry into the reasons for the actors 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.
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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 sons 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 MPCs 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 WEBSTERS 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).
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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 humankinds
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.).
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.
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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
mindwhere our more [sensible] beliefs existand 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
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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 defendants 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
actors 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 actors 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
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347
Furthermore, despite manslaughters 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 TheoryDegrading 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 doctrines potential for abuse.180
Professor Victoria Nourses theory of revision for the provocation defense,
arguably the seminal article on the topic, offers a restriction based upon the
provokers actions.181
In order to use the provocation defense, Nourses 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 actionthe adulteryis neither a
criminally sanctionable act nor a wrong which society should garner
sympathy for.184
However interesting Nourses suggested revision may be, it is far too
restrictive and misguided in its focus on the victims 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 decedents
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--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
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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
defendants actions: Did the defendant act in the heat of passion or under
EEMD?189 Nourses revision has the potential to turn the defendants trial
into a trial of the victim and her actions rather than evaluating the entire
circumstances of the relationship and the defendants actions.190
Nourses 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 itselfspecifically, the
reoccurring domestic violence within the relationship and the abusers
attempt to control his spouse.194 Nourses 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
Nourses revision is too restrictive and does not satisfactorily take into
account the totality of the circumstances that may show adequate
187

See supra Part III.A.
189 See supra Part III.A.
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

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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 matterthe domestic violence within the relationship.197
C. Righting the WrongCategorical Rules of Exclusion Within the
MPCs 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 MPCs approach because it correctly acknowledges legitimate human
weakness.199 In addition, Nourses 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 MPCs EEMD
standard can be improved to help rectify the gender bias, even though
there are no quick fixes to solving the countrys 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

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.
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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?, NATL 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 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).
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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 MPCs EEMD formulation and domestic violence, the
provocation defense is valuable and important within American criminal
law. The MPCs formulation rejected the essential elements of its common
law ancestor, specifically the categorical inclusions of adequate
provocationthe very elements of the defense that helped limit the
defenses application. However, to adopt these inclusions within the EEMD
framework would destroy the very heart of the MPCs 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).
Compare supra note 203 and accompanying text, with Miller, supra note 8, at 666.
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and other victims of domestic violencea wrong that America can no

longer afford. The time has certainly come when the ALI and state
legislatures should work to revise the MPCs EEMD standard so that
categorical exclusions will restrict the EEMDs use to only the appropriate
cases.

Clavel: Righting The Wrong and Seeing Red

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Clavel: Righting The Wrong and Seeing Red

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CLAVEL - FINAL (DO NOT DELETE)

Righting the Wrong and Seeing Red:

In regard to manslaughter, the Model Penal Code (MPC) has

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New England Law Review

romulgated in 1962, the Model Penal Code (MPC) has been

MODEL PENAL CODE 210.3 at 126 (Proposed Official Draft 1962).

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Heat of Passion, the MPC, and Domestic Violence

domestic violence.8 These scholars argue that the MPCs version of

Emily L. Miller, Comment, (Wo)manslaughter: Voluntary Manslaughter, Gender, and the

See infra Part III.B.

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Background of Relevant LawMurder and Manslaughter

Common law murder is defined as the unlawful killing of another

See infra Part III.C.

MODEL PENAL CODE 210.2 cmt. 1 at 14-15.

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Heat of Passion, the MPC, and Domestic Violence

killing of another human being, in the sudden heat of passion, upon

See infra notes 29-32 and accompanying text.

Miller, supra note 8, at 671.

Miller, supra note 8, at 671.

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defendant a reduced punishment. 34

Nourse, supra note 13, at 1341.

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Heat of Passion, the MPC, and Domestic Violence

For an interesting discussion regarding this anomaly, see id.

Id. at 72 & n.5.

See Girouard v. State, 583 A.2d 718, 722 (Md. 1991).

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myriad shifting circumstances of mens temper and quarrels.55 Whether

See id. 210.3.

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Heat of Passion, the MPC, and Domestic Violence

force behind the action.65 However, the second requirement is a more

Casassa, 404 N.E.2d at 1316-17; Miller, supra note 8, at 675.

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to do so is not to be judged against the standard of a reasonable extremist. 77

See id. at 61; Miller, supra note 8, at 674.

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II. The WrongThe Model Penal Code and Domestic Violence

Miller, supra note 8, at 667.

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gender biases into their determinations of what is reasonable, when

Miller, supra note 42, at 269-72.

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Heat of Passion, the MPC, and Domestic Violence

jurors will always base reasonableness upon the gender of the

See id. at 270-71.

Miller, supra note 8, at 668.

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See Nourse, supra note 13, at 1341; supra Part I.B.

MODEL PENAL CODE 210.3 cmt. 5 at 55.

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