From: rc@depsych.Gwinnett.COM (Richard Carlson)
Newsgroups: misc.legal
Subject: Words as Provocation
Date: 4 Oct 92 11:19:50 GMT

I found the 1986 Hornbook version from West Publishing of LaFave
and Scott's _Criminal Law_ in the Emory bookstore and sat down and
read the relevant passages there.  Let me see if I understand what
I read because it is certainly different from what I think most
people believe is the law.  Maybe the analogy is to the "unwritten
law" which most people believe exists which allegedly makes it not
a crime to kill a spouse and the spouse's lover if they are
discovered in the act of adultery.  That was discussed in the same
chapter and it has the effect of reducing the killing from felony
murder to voluntary manslaughter  -- it does not make it no crime
at all, which is what a lot of people believe it does.  When words
function as information only, with no consideration of their
provocative or insulting character, they can have the same effect
in cases where a defendant kills h/er spouse and lover.

Apparently in assault, battery and mayhem (permanent maiming)
cases, provocation in the form of insults has no value as a
defense at all.  That's what the book says, although it certainly
is different from what most people believe.  I'm also not yet sure
about what a jury would say and do.  If what I read is interpreted
as literal, then _no_ "mere" verbal insult can justify a battery
as a response.  I think most people believe that calling an
African American a [racial slur] provides him with an adequate
legal defense for striking you.  It is also widely believed that
within the African American community there is a social norm -- at
the level or non-legal, informal social mores -- that dissing an
adult male's mother _requires_ him to respond with physical
violence. These are situations  where the informal social norms
seem to be at variance with the legal codes.  Doesn't that create
at least an ambiguity?  But if I understand the law, and it seemed
pretty clear in the book, then verbal insults have no value as a
defense in court.

Imagine a scenario where a highly prejudiced white member of the
Ku Klux Klan encounters a prominent and successful African
American gynecologist shopping in the local variety store.  He
goes on to insult the black physician with what are certainly
"fighting words," so that if that doctrine were at all applicable
he himself would certainly be guilty of a crime.  He says
something like"

"Well lookee here.  Don't this beat all.  This here uppity [racial
slur] comes shoppin' just like white folks.  Hey, [racial slur]!
Yeah, tha's right, boy, I'm talking to you, you
God[profanation]ed, mother[explitive]in' son-of-a-[derogatory]!
Hey, boy, you here buyin' some French nighties for yo' wife, or
are you buyin' 'em for yo' mama?  Ha! Ha!  Hey, ain't you [racial
slur]s supposed ta get mad when someone insults they mama?  Well I
just did it?  You gonna try and hit me?  Hey, boy, I could lick
you every day of the week and twice on Sundays.  You ain't nothin'
but a chicken and a chump.  Nothin' but a mother[explitive]in'
chump!  But you like lookin' up them white women's [vulgarism] s,
don't you?  All you [racial slur]s wanna get yo' hands and yo'
[vulgarism]s up a white woman's [vulgarism]!"

And as I understand it the black doctor would have no
justification for striking the white Klansman (even though I
suspect the average American would believe that that much verbal
abuse justifies some action).  The white bigot has addressed the
doctor with racial slurs and profanity.  He has openly challenged
him to mutual combat.  (If the black doctor should hit him then
isn't he just agreeing to mutual combat, much the same way that
two motorists agree to mutual combat if one insults the other
after a fender bender?  That wasn't in the book, so that point
still isn't clear.)

But now suppose the Klansman goes on with something like: "Hey, I
know the feelin'.  Me, I kinda like that dark meat!  You mama too
old and used up so I had to turn her down, but yo' wife sure
enjoyed it!  Ha! Ha!  She tired o' yo' ol' black [vulgarism].  She
want a white [vulgarism] in her.  And man you should'a heard that
[derogatory] scream with pleasure!  You know the way she kinda
whistles when she gets real hot."

Although the claim to have slept with his wife sounds
superficially like the same kind of insult found in the previous
paragraph, it might have a different status.  Most of what the
Klansman says is quite general and probably a reasonable person
would consider it fictitious, but he supplies one detail about the
doctor's wife whistling which isn't quite so general.  As I
understand it, _if_ the doctor then comes to believe that the
Klansman may indeed have had an adulterous relation with his wife
which he had not previously suspected, he may then kill the
Klansman and have the crime not considered no crime but changed
from felony murder to voluntary manslaughter.  This is only
because of the informational content of the language with no
consideration given to the provocative tone or content.

Do I have the law right?  What are the consequences of having law
which is so different from what most people believe it is?

--
Richard Carlson
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