NCJ Number
155584
Journal
Journal of Criminal Law and Criminology Volume: 85 Issue: 3 Dated: (Winter 1995) Pages: 726-763
Date Published
1995
Length
38 pages
Annotation
This article critiques Robert Mison's contention that a nonviolent homosexual advance (NHA) in and of itself should not constitute sufficient provocation to incite a reasonable man to lose his self-control and kill the homosexual in the heat of passion.
Abstract
Should the provocation defense succeed in such a case, the defendant would logically be convicted of manslaughter rather than murder. This article argues that although Mison is correct in attempting to prevent discrimination against homosexual victims in the criminal justice system, he cannot demonstrate that juries are unduly sympathetic to defendants in NHA provocation cases. Further, Mison reaches the wrong conclusion from equally wrong premises. Contrary to the assumptions that underlie much of Mison's article, provocation is an excuse-based, not a justification, defense; it is founded on retributive conceptions of just deserts, rather than utilitarian concerns of crime control; therefore, much of Mison's argumentation is beside the point. Mison has also asked for too much or too little in his remedy. He has asked for too much in that, as a prophylactic against societal homophobia, he would deny a defendant an opportunity to raise an otherwise valid defense, rather than devise remedies for reducing the risk of jury bias in the trial process. Mison has asked for too little in that he apparently accepts the validity of the provocation defense, even if he misconstrues its rationale. Although the defense ought to survive an attack on the merits, the strongest basis for criticizing it may be the predominantly male-oriented assumption that there is a certain inevitability to the leap from provocation to anger to loss-of-control violence. Thus, if critics wish to attack the provocation defense, they should do so from a feminist rather than a sexual-orientation perspective. 188 footnotes