Passion's Progress: Modern Law Reform and the Provocation Defense

Articles Passion's Progress: Modern Law Reform and the Provocation Defense Victoria Nourse' How do we understand the death of loved ones at the hands of those with whom they are most intimate? In life as well as law, we say that murders of husbands, wives, and lovers are "crimes of passion." Thus we explain the event in a way that bridges the gap between love and murder as it separates them, that distances violence from our own homes as it bows to human frailty. This intellectual juggling act yields a law full of ambivalence toward those homicides it describes by the name of "passion." Doctrine condemns the killings, but with sympathy for the defendant's situation; theory excuses and justifies the killer, but only partially; verdicts do not acquit, but reduce the sentence from murder to manslaughter.' This ambivalence has led to legal I Visiting Assistant Professor Law. University of Maryland. Assistant Profcssor of La'%. Uniacriv, of Wisconsin. B.A.. Stanford University; J.D.. University of California (Boalt Hall) Mans thank% toall those who listened to the ideas presented in this Article during facult) \orkshops atthe Ln'rcrsit) of Wisconsin and the University of Maryland. In particular. I would liketo evprcrss m,, appreclation forthe comments of Ann Althouse, John Brumbaugh. Alice Brumbaugh. Donna Coker. Walter Dicke,. Herman Goldstein. Neil Komesar, David Luban. Jane Schacter. Jana Singer. Michael Smith. and Robert Sugg-, Special thanks to Alta Charo for reading an early draft of m,, research, to Ho%%ie Erlangcr and Marcus Peacock for helping me work through questions about my research technique, and to Ste. an .Macauley and Peter Carstensen for unflagging faith in the project. My research assistants at Wisconsin. l-onila Vega. Chris Taylor, Michele Bellia, and Raquel Engelke. read until they could read about murder no more. I am ever indebted to them for their persistence and to Jen Devery at Maryland for perfecting their %sork This project would have been impossible without the generous support of the Unisersii) of Wisconsin Lau School's Smongeski Fund and the University of Wisconsin Graduate School. Finall,. if there is a ray of hope in this Article, it belongs to my favorite writer. Rick Cudahy. who as m) husband makes me beliese in the possibility of shared understandings. 1. See PErER W. Low Er AL., CRIMINAL LAW: CASES & MATERIALS 884 (2d ed 1990) ("Today. every state employs some variation of the provocation formula to distinguish bet.ecn tso distinct grades of non-capital criminal homicide."). In some jurisdictions, passion or provocation reduces an offense from first to second degree murder rather than from murder to manslaughter. See. e.g.. WIs STAT H§ 939 44(2). 940.01(2)(a) (1996). 1331 1332 The Yale Law Journal [Vol. 106: 1331 reforms promising greater humanity and consistency, promises that have moved lawyers to reject the older talk of "heat of passion" in favor of the more modem "emotional distress." However well-intentioned, these reforms have led us to change our understandings of intimate homicide in ways that we might never have expected. Our most modem and enlightened legal ideal of "passion" reflects, and thus perpetuates, ideas about men, women, and their relationships that society long ago abandoned. Based on a systematic study of fifteen years of passion murder cases,2 this Article concludes that reform 3 challenges our conventional ideas of a "crime of passion" and, in the process, leads to a murder law that is both illiberal and often perverse. If life tells us that crimes of passion are the stuff of sordid affairs and bed side confrontations, reform tells us that the law's passion may be something quite different. A significant number of the reform cases I studied involve no sexual infidelity whatsoever, but only the desire of the killer's victim to leave a miserable relationship. 4 Reform has permitted juries to return a manslaughter verdict 5 in cases where the defendant claims passion because the victim left, 6 moved the furniture out,7 planned a divorce, 8 or sought a protective order.9 Even infidelity has been transformed under reform's gaze into something quite different from the sexual betrayal we might 2. My study reviewed hundreds of provocation cases reported by trial and appellate courts between 1980 and 1995. This review led to a data set comprised of every intimate homicide case reporting a provocation claim in jurisdictions that have adopted MODEL PENAL CODE (MPC) § 210.3 (1985) in whole or part. That data set was then compared to samples from jurisdictions adopting traditional and moderate reform regimes. A complete list of the 267 claims involved in this study appears in Appendices B and C. 3. By "reform," I refer here to those jurisdictions that have either adopted the MPC version of the defense or have significantly liberalized the defense in ways similar to the MPC. As I indicate below, my results regarding separation do not hold in those jurisdictions that have retained a more traditional approach toward the defense. See infra Part I. 4. See id. (noting that over one-quarter of all cases in my MPC data set involved neither infidelity nor physical violence but, instead, departure or separation prompting a passionate homicide). On separation generally, see Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1 (1991). 5. Under the MPC, a case may not be submitted to a jury unless a rational jury could find that there was a "reasonable explanation or excuse" for the defendant's claim of "extreme emotional disturbance" (EED). MODEL PENAL CODE § 210.31(b); see also id. § 1.07(5) ("The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense."). 6. See State v. Little, 462 A.2d 117, 118 (N.H. 1983) (reporting that defendant was upset because his wife "didn't love [him] anymore" and had rejected his attempts at reconciliation, and stating that jury was instructed it could retum EED manslaughter verdict). 7. See State v. Reams, 616 P.2d 498, 499 (Or. Ct. App. 1980) (reporting that defendant was upset because he had come home to find that his wife had moved and all furniture was gone, and stating that defendant urged EED defense at trial), aff'd, 636 P.2d 913 (Or. 1981). 8. See People v. Guevara, 521 N.Y.S.2d 292, 293 (App. Div. 1987) (reporting that defendant was enraged because his wife had filed divorce papers, and stating that jury was instructed it could return EED manslaughter verdict). 9. See Perry v. Commonwealth, 839 S.w.2d 268, 269-70 (Ky. 1992) (reporting that defendant became enraged when sheriff sought to execute protective order and that EED instruction was given); Matthews v. Commonwealth, 709 S.W.2d 414, 418 (Ky. 1985) (reporting that defendant sought to explain his mental state at time of killing by reference to warrants sworn out against him for sexual abuse of his daughter and burglary of his estranged wife's residence, and stating that defendant urged EED defense at trial). 1997] Passion's Progress 1333 expect-it is the infidelity of a fiancde who danced with another,'" of a girlfriend who decided to date someone else," and of the divorcde found pursuing a new relationship months after the final decree.' 2 In the end, reform has transformed passion from the classical adultery to the modem dating and And because of that transformation, these killings, at least moving and leaving. 3 in reform states, may no longer carry the law's name of murder. Reform's understanding of the passion defense' 4 reflects deeper roots in modem theories of criminal culpability. Staunchly defended by traditional legal scholarship, these theories center around the notion that defendants are less culpable when they lose "self-control."' 5 This sounds plausible and humane, but leaves unanswered an important question: Which losses of self-control merit the law's compassion? By systematically surveying how courts have answered that question, this Article argues that adherence to the self-control rationale masks a different, more pernicious, tendency. The law in practice does something more than protect self-control. Courts and lawyers have not measured claims of passion by "quickened heartbeats" or "'shallow breathing,"' 6 but by judgments about the equities of relationships, judgments 10. See Dixon v. State, 597 S.W.2d 77. 78-79 (Ark. 1980) (reporing that defendant became enraged when his fiancee danced with another man and that jury was instructed it could return EED manslaughter verdict). 11. See, e.g., Rodebaugh v. State, No. 436. 1990 WL 254365. at 12 (Del No% 27. 1990) 1 reporting that defendant argued provocation to jury in case in %%hichhe killed man sho as dating sonman defendant had dated a year and a half earlier). 12. For instance, State r. Mood, reported a prosocation case in %ihtch the defendant cattle upon his ex-wife and her new boyfriend, approximately eight months after "'the) separated for good.- and tmo months after the divorce had become final. See Brief for Defendant-Appellant at 2. 13-14. State ' Wood. 545 A.2d 1026 (Conn. 1988) (No. 12734). Defendant receied an EED instruction at trial See Brief for State of Connecticut-Appellee at B-I, State v. Wood. 545 A.2d 1026 (Conn. 1988) (No 12734), see alio State v. Rivera, 612 A.2d 749. 750-51 (Conn. 1992) (reporting that defendant receised EED instruction in case in which he killed man he believed was having affair uith his ex-common lau sife three )ears after she had left).

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