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Is the Heat of Passion Biased Against Women?

The regressive nature of the manslaughter statute.

Key points

  • Manslaughter is when someone is killed under conditions of extreme provocation such that the killer acts in a highly incited emotional state.
  • The manslaughter statute doesn’t stir a public hue and cry like the insanity defense, which has been mocked as a “get out of jail free card.”
  • The statute doesn’t fit well in situations common to women who kill husbands after enduring repeated episodes of violent physical abuse.

I was retained to examine Simon, a man in his 60s who strangled his wife to death. He was initially charged with first-degree murder. His attorney asked me to evaluate Simon and opine whether manslaughter was a plea bargaining option.

Murder is the act of killing someone with malice aforethought, which is common law language for a homicide that was intentional and planned. If certain factual conditions are established, a jury or a judge might reduce the charge to voluntary manslaughter.

The victim must have been killed under conditions of extreme provocation such that the killer, in a highly incited emotional state, acted in the “heat of passion” that obscured reason.

Just as important is the second prong of the statute: the time between the provocation and killing must be of limited duration, without a cool-off time, such that a “reasonable person” would not have regained his composure.

The killing occurred after years of verbal and sometimes physical abuse by his wife Joy, a chronic alcoholic. They had three grown children, all estranged and intolerant of her abusive behavior. She drank in the evening and slept all day, which left Simon chronically sleep-deprived.

The killing occurred in the middle of the night after hours of verbal abuse, layered upon years of it. Joy began “raging at me and blasting the TV,” which, he said, was one of her evening badgering tactics. He continued, “Joy followed me around in a rampage. I went from bedroom to bedroom trying to sleep.” At some point, “I went into a manic panic…I began strangling her. I was out of my mind. I was a lizard brain…It was like an insane explosion in my head. I lost it.”

Simon had no criminal or violent history. He was free of any drug use or a recent history of mental health treatment. His children were supportive and described to the assistant district attorney and me how Joy’s virulently provocative behavior affected their father.

I concluded that he killed in the heat of passion. The district attorney’s office came to the same conclusion.

Surprisingly, the manslaughter statute doesn’t stir a public hue and cry like the insanity defense, which has been mocked as a “get out of jail free card.” After having been adjudicated insane, you can spend many years in a state hospital.

Yet, if convicted of manslaughter in some jurisdictions, a defendant could be sentenced to as few as two years in prison (Alabama). And that’s after having intentionally killed another human being.

Why such public outrage over the insanity statute, yet an equanimity towards the manslaughter statute?

One place the manslaughter statute does stir controversy in legal circles is around the issue of gender. The defense was first established in Old English common law to respond to men who killed to defend their honor.

Over the years, the law expanded further to include situations in which a person’s passions were inflamed to homicidal fury. The paradigmatic case involves a man finding his wife in bed with her paramour. Indeed, the doctrine is best suited for men who kill their cheating spouses or paramours. The statute doesn’t fit well in situations common to women who kill their husbands after having endured repeated episodes of violent physical abuse. Because such killings typically occur in the aftermath of violence, the heat of passion defense is rendered legally inapplicable after a cool-down period.

What does psychological science say about intense emotions and their regulation over time? A consistent finding is that emotions, including anger, continue to fester long after the provoking event. Intense emotions tend to increase over time until a behaviorally-relieving discharge occurs.

As anger develops, it creates an urgency to take action, disrupting judgment and rational decision-making. Still, the defense as currently defined is a non-starter for women who kill their abusive husbands.

Women who kill violent husbands have usually lived with a sense of terror and shame, which is a powerful prodrome to a fiery rage. It turns out that the heat of passion and blood doesn’t cool down immediately after a provocation, especially if it entails having been physically abused: A powerful urge slowly builds over time to a white-hot intensity that could derail reason. And a slow-oozing hurt, terror, and fury corrodes normal decision-making. It creates a peremptory kind of heat of blood that is lingering and gradual in the making.

Regardless, this form of inducement to violence is without a well-defined hot or cool-down period, which is an essential prong of voluntary manslaughter. Battered women who murder their abusers are left with claiming self-defense or the battered women syndrome as mitigation.

Juries and judges are sympathetic to abused women who kill their violent husbands. The tier-of-fact might reduce first-degree (“cold-blooded”) to second-degree murder (intentional but not premeditated). But it’s still murder, not manslaughter, which carries a greater social stain and a heftier just dessert.

In California, for instance, the sentencing range for manslaughter is three to 11 years; for second-degree murder, it’s 15 years to life, and for first-degree murder, it’s 25 years to life.

With the manslaughter statute, the justice system acknowledges the brittleness of human beings. But the law, an inherently conservative discipline, has not caught up with contemporary psychological science, which has potentially dire consequences for some female defendants.


Lerner, Jennifer S., and Larissa Z. Tiedens. "Portrait of the angry decision maker: How appraisal tendencies shape anger's influence on cognition." Journal of behavioral decision making 19, no. 2 (2006): 115-137.

Sherman, Steven J., and Joseph L. Hoffmann. "The psychology and law of voluntary manslaughter: what can psychology research teach us about the “heat of passion” defense?" Journal of Behavioral Decision Making 20, no. 5 (2007): 499-519

Maroney, Terry A. "Emotional Competence, Rational Understanding, and the Criminal Defendant." Am. Crim. L. Rev. 43 (2006): 1375.

Lee, Cynthia. Murder and the reasonable man: Passion and fear in the criminal courtroom. Vol. 37. NYU Press, 2007.

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