Provocation and Queer Fear

At Volokh Conspiracy, Eugene notes an amendment to California’s provocation defense to voluntary manslaughter.

Under U.S. law, killing someone is “voluntary manslaughter” rather than murder if the killer was (1) actually provoked into a rage by the victim, and (2) the killer’s reaction was seen as “objectively reasonable,” in the sense that the law empathized with the killer’s rage though not his conduct (which, after all, remains a crime, just a less serious crime).

While saying this is “under U.S. law” is unfortunate, given that this is a matter of state statute, and there is no such thing as “U.S. law,” it’s a fair generic explanation of the theory behind provocation.  But California’s law deals with a specific issue, one that (no doubt, surprisingly to many) is fairly common: men who are outraged to learn that the person with whom they just engaged in a sex act is not female, and thereupon react with extreme violence and kill the person.

The California Legislature has just passed AB2501, which provides,

(f) (1) For purposes of determining sudden quarrel or heat of passion [for purposes of the voluntary manslaughter test], the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. Nothing in this section shall preclude the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation.

(2) For purposes of this subdivision, “gender” includes a person’s gender identity and gender-related appearance and behavior regardless of whether that appearance or behavior is associated with the person’s gender as determined at birth.

This amendment removes, as a matter of law, “queer fear” from serving as a justifiable provocation for killing.  Given that public perception of homosexuality is shifting, as seen in the acceptance of same-sex marriage, is this an example of political correctness overcoming criminal reality?

The argument against such an amendment is that the objective prong of provocation shouldn’t be used as a weapon in the culture war.  While acceptance of homosexuality is an important societal value, it can’t be rammed down the throats of those who have yet to achieve enlightenment.

This is wrong, and misses the point.  The nature of the objective prong of provocation is to reflect societal values, to diminish culpability based upon that which society says is sufficiently acceptable to provoke a person to kill.  In other words, this is precisely what should be rammed down people’s throats when determining whether they should bear full, or only diminished, culpability for killing another human being.  Even a gay one.

The nature of objective provocation is part of the delicate teacup conundrum.  Let’s say a person can’t stand the smell of lemons. The smell of lemons make him crazy, absolutely irate.  So as he walks down the street, if the scent of lemons “attacks” (word choice is deliberate, as delicate teacups believe that by phrasing things that offend them in terms of physical violence, it makes them more real and less ridiculous) him, he can’t be held fully accountable for killing the person whose body emits the odor.

This is how the delicate teacup views provocation.  They expect society to objectively view the things that annoy them as, well, sufficiently annoying to serve as a legitimate basis for provocation.  We see this everywhere, as the Age of Feelings plays out around us and people insist that whatever they find disturbing must be accepted as such by everyone else.  They are entitled to be enraged by whatever enrages them. Society is required to accept their feelings as objectively true.

This is nonsense.  Society is not obliged to adopt the sensitivities of the most delicate flower among us.  Nor is the most delicate flower entitled to demand that society do so, or that society allow them to act upon their personal, peculiar sensitivities.  We do not, each of us, become laws unto ourselves based upon whatever feelings we harbor deep within.

And, needless to say, the fact that some people continue to hate, usually because they feel threatened by potential homosexual feelings and their fear that arousal makes them “one of them,” is not a justification to kill.

Notably, this isn’t a matter of thought control, politically-correct social tinkering.  There is no law that compels people to like gays.  This applies only to the law that says you can’t kill them because your feelings are hurt.  It might be well argued that hurt feelings should never serve as justification for murder, but then, this law doesn’t forgive the crime but merely reduces the severity of the punishment.

Curiously, Eugene adds an update to his post that includes this:

Some states, such as Illinois, go further and identify only a limited set of circumstances that, as a matter of law, can constitute reasonable provocation — for instance, “[t]he only categories of provocation recognized by this court are substantial physical injury or substantial physical assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse,” People v. Garcia (Ill. 1995) (emphasis added).

Two of these things are not like the others. Illegal arrest?  Adultery with the offender’s spouse?  The former highlights the “better to be judged by twelve than carried by six” view of life. The latter suggests that it’s better to kill the other person than your spouse.  It seems to me that if your spouse is engaging in adultery, he’s the one, if anyone, who is most culpable.  Unless it’s a homosexual liaison, in which case it’s better to lick one’s wounds and walk away.  Face it, they’re queer; they’re here. Get over it.

13 thoughts on “Provocation and Queer Fear

  1. william doriss

    One is “provoked” to wonder why there are no comments under Queer Fear after 24 hours? Perhaps/maybe this topic is too hot to handle for the gentle readership. Inquiring Minds demand answers, if not explanations! We have nothing to fear but Queer itself. (One man’s Queer is another man’s Dear!) Oh, hi M0m.
    I pay attention when no comments are posted. Silence is Golden. Those who speak, do not know; and those who know, do not speak!?! I have to say, this posting confuses me. You explore both sides of the argument for and against the CA amendment. I gather you’re saying the objective prong of the CA law is reasonable, but that the amendment is or is not appropriate, given our neo-enlightened acceptance of gays and gay lifestyles? That’s what confuses me:
    “While acceptance of homosexuality is an important societal value, it can’t be rammed down the throats of those who have yet to achieve enlightenment.” To me, that means you’re in approval of the amendment?

    1. SHG Post author

      I am in approval of the amendment. Queer fear isn’t a societally acceptable basis for provocation to kill, and the amendment is a legitimate use of legislative power to remove it as a justification for diminished responsibility. What I’m saying is that this isn’t social engineering, in the sense of trying to force people to accept homosexuality (which, by the way, would be fine with me, but that’s just because I personally believe animus toward gays to be absolutely wrong), but removal of an incentive to kill in the name of such animus. There is no legitimate objective basis to allow queer fear to serve as a defense.

  2. okay

    It’s rape. If I agree to have sex with you only if you use a condom and you decide to remove the condom while we are having sex. It wouldn’t matter if I enjoyed myself I would still be within my rights to charge you with rape. We have an understanding, you can’t deceive me and still assume you have my consent.

    If you do everything you can to lead someone into believing your a woman but you’re not a woman as they understand it. You’re misleading them into having sex with you where they otherwise would have refused. It seems odd to me that no matter what the circumstances the “man” always ends up responsible. Interesting to see that you too aren’t immune to that logic. When it comes to sex is informed consent only for women?

    Just to be clear I don’t have a problem with the law and I agree with your comment about the spouse being culpable. They’re the one that sign the contract not the person they were sleeping with. I take issue with the characterization of the people that might fall victim to this type of rape. Or are we back to the logic that a man should be happy over any piece off ass he gets. I think this would go over better with me if there was some acknowledgment that if you do act maturely and correctly and not kill the other person that you should be able to find a remedy in the law since you were taken advantage of.

    1. SHG Post author

      Despite your comment being fairly inartful, you raise a great point. Given the shifting definitions of rape, this is as much rape by deception as it would be for a women. And if it’s a rape, why then is the victim now allowed to fight back?

      The only answer is that provocation isn’t about fighting back to prevent a rape, but about post-hoc retaliation, which wouldn’t be a defense to a woman in a rape case either. If a woman took a gun and killed her alleged rapist the next day, the rape wouldn’t be a defense to intentional murder, and so it still wouldn’t be a defense here. But your point is very well taken.

      1. Bartleby the Scrivener

        A lot of people would view a woman’s execution of her rapist as acceptable, even if it was a post-hoc retaliation. While I agree it shouldn’t count as justification, should it count as a mitigating factor that reduces the sentence?

        1. SHG Post author

          Most people have a visceral reaction to law, even though it is, and must be, a doctrinal animal. It would certainly be an appropriate mitigating factor at sentence, even though the law cannot incentivize people executing their attackers, whether real or perceived.

  3. okay

    “Inartful”? If you say so.

    Good you still got my point. I think it’s wrong to assume “queer fear” if that person otherwise would never lay a hand on a transgender person. We can’t decide what someone’s breaking point is we can only hold them responsible for their actions. The killing could never be justified but at the same time the standard can’t be it’s okay to mislead someone into having sex with you and expect that to never go wrong.

    Though I was just making the argument on principal. I would be surprised if most of these cases don’t result from drunk guys walking into the wrong bar and not realising who they are taking home. Given the secret lives some many people lead I can’t blame the transgender person for thinking maybe the guy their going home with is just trying to “live a little”. I have no reason to believe that transgender people aren’t like everyone else and only want to sleep with people that want to sleep with them.

      1. SHG Post author

        I appreciate your saying this, as it makes me nuts when people keep starting new threads which makes it hard to follow a discussion. But it happens. I appreciate your noticing.

    1. SHG Post author

      Inartful, because I had to read it twice before I understood your point, but it was worth the effort as your point was valuable.

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