Many assaults happen because a defendant was provoked by the victim. As a general rule, provocation is not a defense to the crime of assault. If you’re provoked, Texas law generally requires that you walk away or contact the local police. Fighting or using force if provoked is typically not an appropriate response.
However, there is a line. You can use self-defense to protect yourself from an assault or threat from another person. The line between provocation and the need to use self-defense can often be a fine one, and it’s important to understand the difference.
What is provocation?
The Legal Information Institute (LII) defines provocation as “The act of provoking or inciting someone to do something.” Different statutes and different crimes may define “provocation” differently. For example, the LII definition of provocation for the crime of homicide is defined as:
That which causes, at the time of the act, reason be disturbed or obscured by passion to an extent which might render ordinary persons, of average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment. In other words, provocation is something which causes a reasonable person to lose control.
While provocation is normally not a full legal defense, it may help mitigate your culpability after a charge and a severe sentence if convicted. For example, a prosecutor may be willing to consider a plea bargain in an assault case if you were provoked into your actions.
Provocation, according to the LII, can be used to reduce some criminal charges to less serious charges. Examples of how provocation can reduce a criminal charge include the following:
- Someone who kills a partner or love because they discover their partner is having sex with another person is “reasonably provoked, so that if, in the heat of passion, the spouse intentionally kills their partner or the partner’s lover, the homicide will be held to be voluntary manslaughter rather than murder.”
- Mutual combat/assault. When two people willingly enter into a fight and one person then kills the other, if the intent to kill the person was formed during the combat, the survivor will likely be charged with voluntary manslaughter instead of murder. If the intent was decided before the fight started, then the concept of provocation (the mutual fight) will not apply.
- A “deadly or severe assault, or a strike with the fist that causes substantial pain or injury, may be sufficient to establish reasonable provocation. A minor blow is not sufficient to constitute a reasonable provocation.”
Courts generally will not consider the defense or mitigation factor of provocation based on the following factors:
- Words alone are generally not a justification/provocation for a homicide, unless they are accompanied by some action that indicates a present intent and ability to harm somebody.
- Provocation generally will not be allowed to reduce a murder charge to manslaughter if a defendant kills someone with the mistaken (but reasonable) belief the victim injured or attempted to injure them.
When does the doctrine of self-defense apply to assault?
Self-defense is generally a legitimate response to an assault – provided certain requirements are met. Self-defense requires showing that the person charged with assault:
- Was in reasonable fear that force would be used against them.
- Felt that the threat to use force was imminent. Verbal threats alone are generally not sufficient, but something like lifting an arm and getting ready to punch is an imminent threat.
- Did not provoke the other person into threatening to harming him/her.
- Didn’t have a reasonable alternative other than using force to defend himself/herself.
Generally, the force used in self-defense must be proportional to the force the other person uses. For example, if someone physically strikes you, you can’t respond with gunfire.
How do provocation and self-defense compare?
We’ll answer that question with an example. As discussed above, self-defense normally involves an imminent threat of harm. Provocation is more of an act or statement that causes a person to respond emotionally.
Seeing your spouse being intimate with another person could be upsetting. It could provoke you to have an emotional response. That provocation doesn’t entitle you to strike your spouse’s partner. However, if the spouse’s partner stands up, says, “I don’t like the way you treated your spouse,” and begins to throw a punch – then you can defend yourself if there wasn’t a clear path to the door where you could exit safely.
If you struck your spouse’s new partner because the partner was just standing with your spouse, you will likely be charged with an assault. We may, however, be able to seek a plea bargain to a lesser charge or a lighter sentence based on the provocation of seeing your spouse be intimate with another person, especially if your spouse or the new partner said something they knew would offend you.
A GWU Law School article from 2009discusses another fine point regarding provocation. When you assert provocation as a defense in a homicide case or to mitigate an assault charge, your response to the provocation must still be reasonable – even though it’s emotional. Per the author:
…there is a difference between reasonable emotions (fear, anger, outrage) and reasonable action. Even if a particular emotion is reasonable under the circumstances, this does not mean that acting on that emotion by using deadly force is also reasonable. It may be reasonable to feel anger at one’s unfaithful partner, but not reasonable to act on that anger by killing the partner. It may be reasonable to fear an attack, but if that attack is not imminent or if one can avoid that attack by running away or disabling the attacker, then killing may not be a reasonable response.
At Mary Beth Harrell Law Firm, our criminal defense lawyers assert all the defenses that can either help you obtain a dismissal, acquittal, or a plea bargain – whatever works best for your particular circumstances. We understand when and how a provocation argument can help you if you are charged with assault. We understand when asserting self-defense is a viable argument for you.
If you’ve been arrested for assault or any crime in Killen or Copperas Cove, our criminal defense lawyers have the experience and skills to help you. Fill out our contact form to schedule a consultation. We’ll fight aggressively to secure your freedom and restore your reputation. Serving all of Central Texas, including Temple, Belmont, and Bell and Coryell Counties.
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