Provocation, Perception, Passion

A theory of the provocation doctrine—labeled the “partial forfeiture” theory—is developed based on a particular understanding of the psychological process by which a defendant “loses self-control.” The interpretation this psychology would assign to each of the provocation doctrine’s elements is explained. According to this theory, when a defendant could not, due to passion, have done otherwise than form an intent to kill, he’s nonetheless guilty of murder if the state regards him as someone who does not habitually see or perceive the moral world in the way the state obligates it to be seen or perceived. The theory thus portrays the state, when state actors apply the provocation doctrine to the facts of a particular case, as making a judgment, not about the way in which the defendant judges the “moral world,” but instead about the way in which he’s disposed to see or perceive it.