What is the Legal Definition of Heat of Passion?
Heat of passion is broadly defined as being in a state of emotional strain brought on by a witnessing or experience of a triggering event. This triggering event usually follows stereotypical elements such as provocation, argument and violence. In a legal sense, this phenomenon is mostly interpreted as a narrow set of mental states that can diminish a person’s criminal intent and provide an affirmative defense to a crime. It has long been noted in courts that although words cannot legally hurt a person, their effect can be equally as damaging as physical force. An example of a ‘triggering event’ would be, for instance, the discovery of a spouse committing adultery . The heat of passion defense permits murder to be downgraded to voluntary manslaughter when the defendant committed the killing under the intense heat of passion caused by "adequate provocation." The law considers provocation adequate when it is so extreme that the passions of a reasonable person would be heated "to boiling" as a result of the provocation. In many jurisdictions, the provocation must cause the defendant to momentarily lose control of his or her emotions and engage in physically violent behavior. Further, it cannot be the consequence of a mere reasonable reaction to a situation; there must be adequate proof that the provocation led to an actual loss of control. For the provocation to be considered adequate, it must be of sufficient severity that it would cause a reasonable person to lose self-control.
Historical Significance of the Heat of Passion Doctrine
In order to understand heat of passion law, one must first take a step back and consider its historical origins: Beginning in the 1600s, without any guidance from DNA tests, fingerprints, or video surveillance, American courts used linguistic analogies (with nothing to lose and everything to gain) to distinguish between deliberative and non-deliberative forms of human thought (intending to set forth a standard of rational thought). The earliest American court to adopt the deliberation standards for determining intent in homicide law was State v. Tompson, 1 Root 96 (1784). But even as courts were drawing distinctions between deliberative and non-deliberative thought processes, they continued to use the terms "deliberation" and "premeditation" in a variety of ways.
For example, in Commonwealth v. Judd, 1 Va. (Jay) 234 (1799), the Virginia Supreme Court upheld the conviction of a defendant for murder constituted that was committed when he was overcome with rage; in common law parlance, this type of crime was one that had been deemed sufficiently serious to receive the full punishment of the law, thus it was a capital crime.
These early American courts operated under the misconception that the absence of malice was synonymous with the presence of passion; in fact, most courts continued to use the two phrases interchangeably well into the 1800s, leading the Pennsylvania Supreme Court to remark in 1848, in Commonwealth v. Foy, 2 Parry & L. 131, 133, that "homicide is malicious where the mind is so far indiferent to humanity that it will sacrifice one man’s life for a word or a look or an affront."
It was not until the twentieth century that the law finally broke free from committing the twin errors-one of which was in finding that any homicide committed without deliberation was done in the heat of passion of the defendant, and the second was in equating malice with deliberation, when, in fact, deliberation can be paired with either malice or passion, and where: "[t]he culpability of the defendant does not depend upon whether his ill will toward his victim was cultivated over days or weeks, or merely for a few seconds before the fatal act." As a result, the requirement of provocation recognizing that "the mind of the homicide might be very different, although the mind was equally heated" ultimately led to the modern day heat of passion defense as a partial defense to murder requiring only an intentional killing and sufficient provocation; one that is calculated to inflame a reasonable person and to cause the defendant to act in the heat of passion.
Requirements and Legal Tests of Heat of Passion
A legal requirement that must be met for the defense to apply is that there must be sufficient provocation as normally defined, meaning that you must have experienced something that would cause an average person to lose their self-control and retaliate with violence. In essence, you must have been provoked enough in order to justify your actions. If the provoking action was minor or not something that would cause an average person to retaliate with violence, the law will not recognize it as provocation.
For example, suppose while driving your car, another driver honks and tries to cut you off intentionally. While the honking may be annoying, it is not typically considered enough to provoke an average person into violence. A good rule of thumb to follow, as previously mentioned, is to consider how you would feel if someone did the same thing to a monk. If you think the monk would handle the behavior by simply ignoring it, it is likely not provocation.
Another example would be if someone had just shot your spouse, and you retaliated against him with violence immediately thereafter – that would probably be sufficient provocation to qualify as heat of passion.
The provocation must also be followed by an immediate response, without any "cooling off" time between the provocation and the stabbing.
Legal Distinction: Heat of Passion versus Premeditated Murder
Crimes of passion and premiditated crimes are different in both intent and emotional reasoning. Premeditated crimes refer to those who think the crime through beforehand and, before committing the crime, formulate a plan of action. These individuals act on their own and are often able to cover up the crime or make it appear like it was an accident. Heat of passion crimes, just like those committed in a premeditated fashion, are intentional criminal acts. Rather than thinking the situation all the way through, acts of passion are taken headfirst, without fully considering the ramifications. To be charged with a crime of passion, all that needs to happen is an individual must experience a sudden burst of emotion that incites them to violence against another person. The emotional outburst must be so great that it clouds their judgement and motivation so that they are not in a rational frame of mind when the attack occurs. In a crime of passion scenario, an individual can demonstrate intent to kill even if they don’t have time to fully think the situation through. Guns, knives and other weapons are often used in these types of attacks. Once the crime of passion is committed, however, the act becomes completely irrational and often without sense or meaning. A common example of a crime of passion occurs when a spouse comes home and catches their partner in bed with another person. The betrayal creates such an intense emotional reaction that individuals may resort to strangling, shooting or physically abusing the offending party. While both are crimes, heat of passion and premeditated crimes are treated differently under the law. For example, if someone commits murder premeditated, the courts can often consider this as an "aggravating factor" in the intensity of the crime. Generally, these criminals are sentenced to life in prison, decades of imprisonment, or possibly death in some states. However, in most cases, crimes of passion do not carry the same penalty if they are related fully to emotional outbursts when a person is provoked by someone close to them, therefore falling under crimes of passion laws. In this case, the individual is often sentenced to a much shorter period of time. In most of these cases, sentences last only a few years in prison. The reasoning is that those who commit a crime of passion are not in the right frame of mind to seriously consider the ramifications of their actions, meaning their capabilities are different from those who plan a crime without being emotionally compromised.
Heat of Passion: Case Studies and Precedent
In the case of State v. Dumstrey, the defendant fired a nearly lethal dose of illegal narcotics into a crowd of customers in a nightclub after another patron allegedly committed an act of sexual violence against his girlfriend. The Court, in reversing the conviction and ordering the dismissal of the indictment found that "the provocation in this case—simply having one’s paramour attacked in public—is the same as finding that the defendant was offended by conduct which was insensitive but not otherwise criminal" and further stated that "[d]amage to property, insults to a girlfriend or wife—all of these constitute provocation, but certainly not provocation of the type which abrogates the sanctity of human life, or reduces our homicide rate, or in any way makes our streets less bloody." 162 A.2d 23, 27 (Pa. Super. Ct. 2000). Since a court cannot determine whether the provocation was heat of passion, heat of passion in its legal sense is irrelevant to determining whether the provocation was sufficient to reduce first-degree murder to second-degree murder so that the provocation must be viewed in terms of the emotions of an ordinary person, and the nature of the provocation need not constitute conduct which is illegal. Thus, it is permissible to consider non-criminal conduct in determining whether the provocation is sufficient where the provocation has been defined in terms of the passions of ordinary men.
Commonwealth v. Hennigan addressed the defense of provocation in the context of a domestic relations matter. In Hennigan the defendant was convicted of voluntary manslaughter for causing the victim’s death. The defendant and victim had been married in 1988 but were no longer living together. While he was staying with his mother, the defendant allegedly received a phone call from the victim advising him that she was moving in with another man. The defendant thereafter went to the home he and the victim shared after hearing another voice in the bedroom. He confronted the victim, striking her in the face repeatedly, then wrapped a strip of the carpet which had been ripped out of the stairs around her head and struck her with a hammer, killing her. The trial court instructed the jury on the heat of passion aspect of the crime and the appeal was denied.
The court opined that although there was no evidence presented to suggest that the victim and co-habitant engaged in any sexual activity, nevertheless "a reasonable person could have experienced a violent reaction to the knowledge that the spouse with whom he was no longer living was moving into a house with another man." Id. At 1155. The court noted that the evidence was sufficient to support the finding of provocation that would warrant a second degree murder charge.
In Commonwealth v. Persons, to which the author previously referred in this article, Persons, the victim and the defendant were addicted to crack cocaine and living with the defendant’s father. After the defendant left work she returned home to find the victim and her father or nephew stuffing their pockets with her money, which was to be used towards making their rent payment of seventy dollars. The defendant saw the victim’s hand in the money bag, and the victim fled the scene, leaving her own cell phone and money behind. Persons obtained a gun from the house, and went outside. An argument ensued between Persons and the victim’s father, and the victim started to walk away. Persons dropped the gun as she was chasing the victim, and the victim picked the gun up. The victim shot Persons in the side and the neck, as well as in the leg, and then he turned the gun on Persons and shot her in the head and neck.
The Court agreed that the evidence, viewed in the light most favorable to the Commonwealth was sufficient to support the verdict that any provocation that occurred was not adequate enough to reduce the murder charge to voluntary manslaughter. The Commonwealth Supreme Court stated that there was no evidence that the gun was fired by the victim in the heat of passion, in self-defense, or even in the course of a struggle. The court specifically noted that the victim fired indiscriminately at the defendant and that reasonable minds could find that the defined provocation that occurred was "sufficiently grave enough to temporarily cloud Persons’s reason an deprive her of control." The court further opined that Persons was not justified in using a deadly weapon upon the victim because Persons admitted that she fired the gun only after the victim shot her. Lastly, the court stated that the argument between the two woman was "over a lost money bag, not over a cornucopia of riches." Persons, supra at 1216.
The Pennsylvania Superior Court has long held that when analyzing the provocation element which reduces first degree murder to voluntary manslaughter, the actions of the victim must have caused the defendant to act in a sudden and intense emotional state of passion. Commonwealth v. McGriff, 681 A.2d 1290 (Pa. Super. 1996), appeal denied 541 A.2d 942 (Pa. 1997).
What Sentencing Implications Arise from Heat of Passion?
The implications of finding a crime to have been committed in the heat of passion are significant, affecting both the manner in which criminal liability is assessed, and the way criminal law punishment is imposed. Heat of passion may be relevant to determining whether a homicide charge should be reduced from murder to manslaughter. This often depends, however, on the specific circumstances surrounding the charge. For example, California Penal Code Section 192 describes heat of passion in the following manner: Murder is [defined as] the unlawful killing of a human being, or a fetus, with malice aforethought. Malice may be either express or implied. Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart . [When the circumstances are that of a murder committed in the heat of passion, knowing and conscious of the provocation but without malice as set forth above, then the offense falls under the definition of voluntary manslaughter, and shall be considered and cha… Penal Code Section 192 of the California law contrasts both voluntary manslaughter and involuntary manslaughter with murder and different sections of the penal code. As a result, proving a heat of passion killing can potentially make a crime far less serious than if the same crime had not been proven to have been committed in the heat of passion. A conviction of murder may also lead to life in prison, while a conviction of voluntary manslaughter may lead to a jail sentence of as little as three to eleven years.
Heat of Passion: Controversies and Criticisms
Despite the stated objective of heat of passion laws, these laws have been criticized for their potential to facilitate violence: Because [they] contain so many loopholes and exceptions, self-defense laws can also provide an open door for spouse abusers to escape punishment if they kill their partners…. The requirement that the aggressor actually commit a threat or assault the abused person before she can respond with deadly force has the effect of reinforcing the criminal status of abused women who have retaliated after years of battering. Furthermore, these laws often ignore the realities of the most common batterer-abuser relationship, where the abuser is usually not the husband, but the woman’s partner or boyfriend. Further, critics argue that "the protection afforded by heat of passion laws are undermined when the homicide victim does not have the ability to provoke the defendant." In addition, the laws are argued to be unfair as "they treat equally a wide disparity of provocation." As an example, "a ‘puff’ as in a mild statement like ‘you’re a no good son of a bitch,’ ‘taking a puff of someone’s cigarette without permission, ‘borrowing’ a cigarette and then using it, ‘testing the waters’ without the owner’s consent, ‘hugging someone for longer than a few minutes,’ getting into the victim’s space, ‘looking at victim’s butt.’" Such a situation is a "far cry from the kind of deliberate and violent conduct which the doctrine of provocation was intended to protect." Critics argue that there is no need for a killing, especially a brutal one, to occur in order for a person to lose their self-control. In most cases, a severe response "to threat, shock, or stress occurs "becomes the province of the drunk, drugged, mentally ill or emotionally incomplete – in short, the ‘addict’ – who is by definition unlucky." Furthermore, it has been acknowledged that these laws may provide justification not only for homicide, but also for assault: [Heat of passion laws] sanction an emotional state as a precursor to violence…. Such an endorsement of extreme emotional outburst and loss of self-control could provide a legally sanctione[d] excuse for a variety of violent acts, such as aggravated assault and rape, if only the victim displays an attitude or behavior that offends or provokes the perpetrator. Heat-of-passion doctrine invites defendants to rely on arbitrary social standards of provocation in pleading anger or fury and injuries into which men – especially those who beat their wives – are all too easily captivated.
Defenses and Legal Strategies Related to Heat of Passion
Heat of passion laws can often be tricky for defendants to navigate, especially without the benefit of experienced legal counsel. There are multiple potential avenues for defense in a heat of passion case. The first is finding evidence that substantiates an emotional disturbance as defined by law. Evidence may come in the form of letters, text messages, emails or other documentation. While emotions themselves are hard to interpret and can sometimes occur independent of any physical signs, contextual clues can help further substantiate an emotional disturbance.
If you cannot corroborate an emotional disturbance with physical or other evidence, you might rely on a lack of intent to kill. In order to win a conviction for murder, particularly first-degree murder, the prosecutor must prove intentionality on the part of the defendant. The intent to kill is usually proven through confession, admission or premeditated planning. A conviction for first-degree murder indeed requires proof beyond a reasonable doubt.
The final line of defense is aggravated assault. If the testimony of the victim or defense witnesses suggests the defendant was in a state of rage and did not plan to kill his or her victim, it might be more appropriate to attempt to convince the court or jury of a lesser charge such as aggravated assault.
Similarly, while heat of passion laws may help you avoid a conviction for murder, they are not to be used as a catch-all excuse for whatever violent crime you have committed. You may be able to successfully argue one of these defenses only if you’re able to provide enough evidence that your emotional disturbance was significant enough to cause a person to lose control.
In some cases, failure to seek psychological help can jeopardize your case, creating an opportunity for the prosecutor to argue you were not genuinely in a state of uncontrolled rage at the time of the incident. Your medical history will therefore serve as important evidence that will be scrutinized by both sides.
Prognosis: A Conclusion on Future Trends in Heat of Passion Law
As we look to the future, the fate of heat of passion laws appears ripe for further evolution. Reformists have long advocated for a shift towards a uniform standard of provocation but this has fallen largely flat. Where these movements for reform have gained traction, they tend to be at the hands of social movements with feminist origins which seek to provide protection for female victims of spousal violence and rape. This is only one path to reform however , and does not encompass the possibilities which are presented by our diverse and multi-faceted legal system. For example, in certain jurisdictions across Canada there are calls to address the complexities arising out of provocation concerning self-induced intoxication. Though some Canadians may be of the belief that heat of passion is outdated, honour-based and LGBT crimes keep our courts, and those interested in this area of law, aware that this will continue to be an area of discussion.
