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. Continue reading