The Curious Absence of Provocation Affirmative Defenses in Assault Cases

(Excerpt) Kent Davis returned home on February 22, 2008, took his toddler into the bedroom, fed her a bottle, and sat down to watch some television. His wife, Rachel, noticed that their daughter had spilled her bottle, and the two began to argue. During the argument, Rachel opened the window and yelled for the police; she also spat on Davis. When she tried to call the police, Davis grabbed her cell phone and “snapped it in half.” Davis then took a knife from the kitchen and assaulted Rachel, punching her and stabbing her in the shoulder and neck until he finally called the police himself, saying, “ ‘I did it.’ ” Davis was arrested and “charged with attempted murder in the second degree, assault in the first degree, and child endangerment.” At trial, Davis admitted to stabbing Rachel, but claimed that he only grabbed the knife intending to “scare her and stop her from yelling,” not to kill her. However, everything “went a blur,” and he “snapped” and “blacked out” during the assault. Davis was convicted of assault and child endangerment, and sentenced to 11 years in prison. On appeal, and in a subsequent petition for habeas corpus, Davis argued, among other things, that he should have been entitled to mitigation of his assault charge due to extreme emotional disturbance (“EED”). The federal habeas court held, however, that this defense could not have succeeded because “EED is not available to a defendant charged with assault” in New York. The Davis case illustrates a profound and longstanding paradox in criminal law: the mitigating EED and adequate provocation defenses are often available for homicide but not for assault, even though the same physical acts and same mitigating factors may be present in both types of cases. Put another way, mitigation by affirmative defense is available when a defendant intends to kill someone, but not where a defendant merely intends to cause someone physical injury, even though the defendant may have been just as emotionally disturbed in the latter case as in the former. Further, a defendant charged with both assault and attempted homicide could receive a mitigating jury instruction on the attempted homicide charge but not the assault, despite the fact that the jury is asked to evaluate the defendant’s intentions on the exact same criminal act. This Note argues that the EED and common law adequate provocation defenses should be extended to intentional assault offenses in all states, as a matter of fairness and conceptual symmetry. As noted in the Introduction provided above, every justification given for these defenses in the homicide context applies a fortiori to assault charges, where a defendant is implicitly less culpable given the intention to merely injure, not kill, the victim. Part I provides a background history and conceptual framework for understanding the EED and adequate provocation defenses in the homicide context, as well as in the few states that allow mitigation for assault. Part II argues that such mitigation should be allowed for assault as well. Finally, Part III proposes model legislation for implementing the defense in every jurisdiction