Provocation

In combat, the fear of injury or death poses a severe handicap. Fear distracts, destroying concentration, reactions and timing. Technical virtuosity with weapons is useless to a warrior who cannot control fear.

That is a quote from Karl Friday in Legacies of the Sword (1997). Friday is writing about how the spiritual training in the bugei(Japanese military disciplines) originated as a practical military consideration. He is writing about how the bugei developed ways and means to deal with the effects of emotions on combat performance.

As part of my writing about the 'survival process,' I came across the final report by the Victoria Law Reform Commission on the 'Defences to Homicide.' In particular I was interested in the defence of provocation. Provocation is a controversial subject in general let alone in the legal domain. Provocation is better understood when one understands the survival process, and in particular the appraisal process. How we appraise a particular stimulus determines how we respond to it.

My post, Being Called a Cocksucker Isn't Personal, discusses the appraisal process and the appraisal of stimuli. Being called a 'cocksucker' is only a provocation if we appraise it as being such. Until then, it is only a noise; a stimulus we are at liberty to interpret in any way we choose to see fit.

Appraisal is at the very heart of all training designed to better prepare a person to survive a violent encounter. Friday's comments are testament to that fact. If you or your instructors are not focussed on your or your students' appraisal of stimuli that may be appraised as threatening or insulting, then you or your instructors are not preparing you or your students to survive a violent encounter.

'Passion or anger is seen to unseat reason, rather than being in accordance with it. This is why provocation is often referred to as a 'concession to human frailty'.

Human frailty. Do we accept human frailty? Or do we train to go beyond human frailty?

Originally, the required loss of self-control had to be the result of anger. It has now been expanded to include loss of self-control due to fear or panic. The central question is 'whether the killing was done whilst the accused was in an emotional state which the jury are prepared to accept as a loss of self-control'. Historically, it was also necessary for the killing to occur suddenly or immediately after the provocative conduct, in order to show such a loss of self-control. This is no longer the case.

Control of an aroused emotion is the issue here. A stimulus is appraised in a particular manner which elicits a feeling that motivates a behaviour. The lack of control is defended due to 'being human', or human frailty.

Before we get high and mighty, provocation does not only refer to the weak willed who cannot control their emotions. In fact, the defence of provocation arose out of more 'noble' motives.

The development of provocation can be traced back to 16th and 17th century England when drunken brawls and fights arising from 'breaches of honour' were commonplace. The notion of honour was of great importance to society. A major breach of honour occurred, for example, if a man’s wife committed adultery, as this was regarded as 'the highest invasion of property.' But honour could be breached by other means. If insulted or attacked, it was seen as necessary for a man to 'cancel out' the affront by retaliating in some way. An angry response was expected and the failure to produce such a response would be considered cowardly. Anger was considered to be a reasonable and rational response in the circumstances.'

Honour is often an attribute that is 'honoured' in the military, law enforcement, martial arts, and other 'manly' pusuits. Honour is a man made construct. It is often designed to get us to do things that nature does not want us to do. We fight for honour rather than fleeing as our instincts scream at us to do, even though our instincts are born of nature and are only interested in our well-being. We fight for an ideal that nature is far too pragmatic to even consider.

The final element of the test is whether the provocation was such that it was capable of causing an 'ordinary person' to lose self-control and act in a manner that would encompass the accused's actions. There are two aspects to this test: (1) the gravity of the provocation; and (2) whether the provocation was of such gravity that it could cause an ordinary person to lose self-control and act like the accused.

What do we expect of the ordinary person? When discussing the criticisms of provocation, the authors refer to provocation as being seen as offending against one of the fundamental assumptions of the criminal law: 'that individuals ought at all times to control their actions and to conduct themselves in accordance with rational judgment.' Again we return to control. Control of emotions, control of behaviour motivated by emotions.

The report recommends against provocation being used as a defence:

[Provocation] suggests there are circumstances in which we, as a community, do not expect a person to control their impulses to kill or to seriously injure a person. ... In our view, anger and a loss of self-control, regardless of whether such anger may be understandable, is no longer a legitimate excuse for the use of lethal violence. People should be expected to control their behaviour — even when provoked. The historical justification for retaining a separate partial defence on the grounds of compassion — a 'concession to human frailty' — is, we believe, difficult to sustain.

Community standards expect us to control our behaviour. Behaviour is motivated by emotions. There are two options: (1) control our behaviour that is motivated by our emotions, or (2) control our emotions. The bugei were not interested in controlling their behaviour. They were interested in controlling their emotions so they would not have to control their behaviour (and their physiological response to a threat). Intervening in the appraisal process, how we view the world, changes the emotions that are elicited which in turn elicits a physiological and behavioural response. No emotion, no maladaptive behaviour or physiological response to control.

How are you dealing with fear and anger? Are you focusing on tactics and techniques and thereby ignoring the most fundamental element in surviving a violent encounter - emotion? Are you assuming fear and/or anger as being a given and focusing on controlling the aroused emotion and it's behavioural tendencies? Are you focussing on managing the arousal of the emotion? If so, are you focussing on the initial interpretation of the stimulus, or are you focussing on the perception of the resources and abilities that are designed to cope with the appraised threat stimulus?

The final word will be left with the very insightful Eleanor Roosevelt: Nobody can make you feel inferior unless you give them permission.

Nobody can make you feel anything, fear or anger, unless you give them permission.