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Righting the Wrong and Seeing Red: Heat of Passion, the Model Penal Code, and Domestic Violence
N
IKOLETTE
Y.
 
C
LAVEL
*
 
A
BSTRACT
 
In regard to manslaughter, the Model Penal Code (
MPC
) has effectively expanded the common law
s heat-of-passion defense through the use of the Extreme Emotional or Mental Disturbance (
EEMD
). This expansion has caused more domestic abusers who kill their spouses to claim the defense as opposed to under the common law. Feminists argue that this expansion has had severe consequences on women and other victims of domestic violence, and as such, feminists ask for the provocation doctrine
s repeal or revision. However, the MPC
s formulation is worthy of protection in American criminal law because it adequately grades and distinguishes offender blameworthiness in reference to homicides. The EEMD standard also allows the fact finder to observe the totality of the circumstances
more so than the
common law’s
objective reasonable-man standard
and provides a more accurate view of the homicide against which to gauge the defendant
s provocation. In order to restrict the EEMD standard so that domestic abusers are unable to claim the defense (and therefore alleviate the concerns raised by the feminists), the MPC and state legislators should employ categorical rules of exclusion. Rules of exclusion categorically bar a defendant from raising the defense, such as when the homicide is a
 product of domestic violence
. Categorical rules of exclusion serve a dual purpose in that they allow the benefits of the EEMD standard to flourish while barring the defense
s use in inappropriate circumstances.
*
 Candidate for Juris Doctor, New England Law | Boston (2012). B.A., Philosophy and Politics, University of California, Santa Cruz (2004). I would like to thank the
New England Law Review
 staff for their invaluable assistance, my friends and family for their everlasting praise, and especially my parents for their phenomenal wisdom.
 
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330
New England Law Review
 v. 46 |329
I
NTRODUCTION
 
romulgated in 1962, the Model Penal Code (
MPC
) has been regarded as the most successful attempt at codifying criminal law in American history.
1
 Following its publication, dozens of states were influenced by the MPC and re-codified their criminal codes.
2
 The MPC departed significantly from the common law in one very important respect: the formulation of manslaughter.
3
 The MPC
s formulation of manslaughter,
4
 commonly referred to as extreme emotional or mental disturbance (
EEMD
), expanded the common law
s definition. This allowed more defendants, from a wider variety of situations, to raise the defense.
5
 Although the MPC was a successful codification of American criminal law, some scholars
6
 worry that this expansion of manslaughter is not only perverse but often leads to
disastrous
 results for women
7
 in the realm of
1
 
See
Paul H. Robinson & Markus D. Dubber,
The American Model Penal Code: A Brief Overview
 , 10 N
EW
C
RIM
.
 
L.
 
R
EV
. 319, 326 (2007).
2
 
Id.
 
3
 
See
 M
ODEL
P
ENAL
C
ODE
§
 
210.3 cmt. 5 at 60-61 (1980) (rejecting the common law categories of what constitutes adequate provocation).
4
 M
ODEL
P
ENAL
C
ODE
 § 210.3 at 126 (Proposed Official Draft 1962).
5
 
See
Richard Singer,
The Resurgence of Mens Rea: I 
Provocation, Emotional Disturbance, and the Model Penal Code
 , 27 B.C.
 
L.
 
R
EV
. 243, 296 (1986) (describing a c
ase that ‚clearly would
never have qualified for a provocation instruction under the common law at its mo
st lenient‛). The term ‚defense‛ as used in this Note refers to a claim that, depending on the jurisdiction, may reduce the defendant’s punishment or c
harge. For example, the provocation defense is an
‚imperfect defense‛ such that it may only
reduce
 a murder charge to manslaughter. B
LACK
S
L
AW
D
ICTIONARY
483
 
(9th ed. 2009). However, the provocation defense is in no way an
absolute defense
such that the defendant will not be held criminally liable if the defense is accepted.
See id.
at 1346.
6
 
These scholars are often referred to as ‚feminist‛ scholars. Throughout this Note, their
arguments are des
ignated as ‚feminist
 
arguments.‛
See, e.g.
 , Joshua Dressler,
Why Keep the Provocation Defense?: Some Reflections on a Difficult Subject
 , 86 M
INN
.
 
L.
 
R
EV
. 959, 961 (2002)
(‚Heat
-of-passion law has been the subject of ethical, and most especially, feminis
t attack.‛).
 
7
 This author wishes to acknowledge that men are also victims of domestic violence and women are also perpetrators. For simplicity and accuracy however, this Note refers to the
‚abuser‛ as male and the ‚survivor‛ or ‚victim‛ as female. In fact, eighty
-five to ninety-five percent of all domestic violence victims are women. Nichole Miras Mordini, Note,
 Mandatory State Interventions for Domestic Abuse Cases: An Examination of the Effects on Victim Safety and  Autonomy
 , 52 D
RAKE
L.
 
R
EV
. 295, 295 n.1 (2004);
Domestic Violence Facts
 , N
AT
L
C
OALITION
A
GAINST
D
OMESTIC
V
IOLENCE
 ,
 
1
 
(July 2007) [hereinafter
Domestic Violence Facts
], http://www.ncadv.org/files/ DomesticViolenceFactSheet(National).pdf.
P
 
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Heat of Passion, the MPC, and Domestic Violence
 331
domestic violence.
8
 These scholars argue that the MPC
s version of manslaughter expands the common law
s
heat-of-passion
 defense
9
 at too great of a cost to female domestic violence victims who have been killed by their abusers because it allows abusers to try to mitigate the charge from murder to manslaughter.
10
 The MPC
s provocation defense has been identified as the new
abuse excuse.
11
 As a result, many feminist critics argue that the provocation defense, under both the common law and MPC, should be abolished.
12
 Despite the potential gender bias within the provocation defense, other scholars contend that the provocation defense should not be abolished but instead revised.
13
 The revisionists agree that the MPC expands the provocation defense to an untenable level and that  justice would be more aptly served by restricting its use.
14
 This Note will argue that the provocation defense is worthy of protection in American criminal law, and despite its pitfalls, the defense can be restricted to satisfy feminist concerns regarding domestic violence.
15
 The common law
s conception of the provocation doctrine and its rules of categorical inclusion (i.e., adultery)
16
 provide a framework that can lend
8
 Emily L. Miller, Comment,
(Wo)manslaughter: Voluntary Manslaughter, Gender, and the  Model Penal Code
 , 50 E
MORY
L.J. 665, 666 (2001) (arguing that the MPC expansion of manslaughter has been
‚particularly disastrous for women‛).
 
9
 
Throughout this Note, the ‚heat
-of-
passion‛ defense refers to the common law definition
of manslaughter.
See
B
LACK
S
L
AW
D
ICTIONARY
791
 
(
9th ed. 2009). The ‚provocation defense,‛
as used herein, refers generally to both, or either, the common law and MPC formulations. In most instances, however, it is specified whether the common law or the MPC formulation is applicable.
10
 
See
Miller,
supra
 note 8, at 666. Domestic violence perpetrators have also claimed the defense when they kill a third party who may be dating, or they suspect is dating, their estranged spouse.
See, e.g.
 , State v. Rivera, 612 A.2d 749, 750-52 (Conn. 1992) (allowing an EEMD instruction where the defendant killed the man dating his ex-common law wife). Although the defense may be claimed in these other instances, this Note will focus on cases in which the defendant has killed his intimate spouse rather than a third party.
11
 Carolyn B. Ramsey,
Provoking Change: Comparative Insights on Feminist Homicide Law Reform
 , 100 J.
 
C
RIM
.
 
L.
 
&
 
C
RIMINOLOGY
33, 33 (2010).
12
 Dressler,
supra
 note 6, at 975-84 (discussing the various feminist challenges to the provocation defense).
13
 
See, e.g.
 ,
 
Victoria Nourse,
Passion’s Progress: Modern Law Reform and the Provocation
Defense
 , 106 Y
ALE
L.J.
1331, 1337 (1997) (arguing for a retention of the provocation defense ‚as
a partial excuse but only in the limited set of cases in which the defendant and the victim
stand on an equal emotional and normative plane‛).
 
14
 
See, e.g.
 ,
id.
;
see also infra
Part III.B (noting that feminist revisionists argue that the provocation defense should be limited to situations where the provoking act was actually a crime or its equivalent).
15
 
See infra
 Part III.B.
16
 
See infra
 Part I.A.

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