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What Constitutes "Provocation" in Homicide Cases?

At least two attacks have occurred within the past 30 days in which the assailant allegedly attacked an intimate partner while having sexual intercourse after the victim called out the name of another person. In September, a man allegedly killed and disemboweled his girlfriend after she called out her ex-husband’s name twice while the couple was having sex. In October, a Florida woman allegedly stabbed her husband multiple times after he called out the name of another woman during sex.

Calling out the name of another person during sex is sure to aggravate your partner, but can it provide an excuse justifying a homicide or other violent attack?

The Effect of Provocation on Homicide Crimes

Florida Statutes Sec. 782.03 provides that homicide is “excusable” when it is committed “by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation.” When the statute says homicide is “excusable,” it is indicating that it is lawful. “Heat of passion” and “sufficient provocation” can also reduce the severity of a homicide offense: for instance, first degree murder can become second degree murder if there is “heat of passion” or “sufficient provocation” present when the offense is committed.

While not specifically codified in a statute, “heat of passion” upon “sufficient provocation” can potentially negate the intent element of other violent crimes.

Defining “heat of passion” and “sufficient provocation” can be tricky, however. Whether “heat of passion” exists depends on the circumstances of a case viewed from the vantage point of an objective, reasonable person. The situation must be such that a reasonable person would be unable to control his or her passions and emotions. “Heat of passion” must arise from “sudden and sufficient” (or adequate) provocation. The existence of this, too, will depend on the facts of the case.

Common Examples of “Heat of Passion Upon Sudden and Sufficient Provocation”

A common example of a situation involving “heat of passion” that can reduce or completely excuse homicide is where a spouse comes home unexpectedly and finds his or her spouse engaged in sexual intercourse with another person and proceeds to kill the other person and/or the other spouse. Another example could conceivably be a parent who sees his or her child seriously injured or killed (even if by accident) and proceeds to take his or her anger out on the alleged responsible party.

Words rarely – if ever – create a sufficient “heat of passion,” even if those words happen to be the name of a partner’s ex-lover. So, for example, neither of the two individuals described above would likely be able to use a “heat of passion” defense in their case.

What Can a South Florida Criminal Defense Attorney Do in My Case?

Miami criminal defense lawyer Jeffrey S. Weiner can help provide the legal insight necessary to determine if you have a valid “heat of passion” defense to your Florida homicide or violent crime charge. Contact his office today at (305) 670-9919 to schedule a free consultation with the law firm of Jeffrey S. Weiner, P.A.

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