Midweek update: teaching criminal law--voluntary manslaughter
Wednesday, November 8, 2017 at 1:36AM
Dan Kahan

I usually start class (sessions of which are 120 mins. this semester at Harvard Law) with a mini-lecture that synthesizes the material and discussion from the immediately preceding class. The one below recaps voluntary manslaughter":

Voluntary manslaughter.  Last time we looked at voluntary manslaughter.  There are two formulations.  The common law version mitigates murder to manslaughter when an offender who intentionally kills does so in the heat of passion brought on by adequate provocation and without “cooling time.”  The Model Penal Code, in contrast, mitigates when a homicide that would be murder is committed as a result of an extreme emotional or mental disturbance for which there is a “reasonable excuse.”

On the first day of this course, I made the point that disputes about what the law means are frequently disputes about two things: (1) what it ought to mean; and (2) who ought to say what it means.  Our discussion of the common law voluntary manslaughter yesterday nicely illustrated this.

What, for example, does “adequate provocation” mean?  Is adultery adequate provocation?  How about a same-sex overture?  The answer can’t be found in the plain meaning of the doctrine.  Rather, it must be constructed according to some theory about what the doctrine is all about.  And because it must be constructed someone must do the constructing.  So what ought the law mean and who ought to say?

We considered a number of specific theories about why the voluntary manslaughter doctrine exists.  I suggested that we call one the voluntarist view: impassioned killers are treated leniently, on this account, because passion compromises their volition, and thus reduces culpability for their acts.  The problem with this hypothesis, though, is that it can’t explain why there is a provocation requirement at all, much less why the provocation must be adequate.  As cases like Anderson illustrate, people don’t experience uncontrollable, homicidal impulses only when provoked.

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