Aside from its more obvious tabloid appeal, the Kissel trial also raised issues at the point where criminal law meets psychology. That is, how do judges, jurors and prosecutors assess the emotional state of an alleged murderer at the time of the crime, and exactly what can and ought to be acceptable as a partial excuse? Hong Kong's written law is similar to English and American law on this point. Homicide Ordinance Section 3 allows for the partial defence of 'diminished responsibility' when a person is suffering from an inherent or induced 'abnormality of the mind', reducing his or her responsibility and, possibly, the charge from murder to manslaughter. Section 4 allows for a defence of 'provocation' when a jury is convinced that the person charged was provoked to lose self-control enough to make any reasonable person do as he or she did - as in so-called 'crimes of passion'. Many psychologists and law professionals, however, consider the provocation defence too focused on men rather than women, having developed that way because most violent crime is committed by men. They argue that it represents a bias towards 'male' excuses for murder because it provides an excuse for those who kill in the heat of anger (mostly men), but it does not explicitly do so for those who kill out of fear and despair (more typically women). A woman who kills her spouse some time after a battering, for example, cannot claim provocation because she had time to calm down. Being weaker, however, she may have felt she could not defend herself at the time; yet she may have felt constantly endangered - and out of despair resorted to delayed, disproportionate force. This is especially plausible for marginalised women who feel they have few alternatives in life. In practice, however, allowances are made by judges and jurors. What counts most is that the loss of self-control is communicated in terms that arouse sympathy. In a 10-year New York study, judges and juries were actually less sympathetic towards classic anger-based defences of provocation than those based on fear. A recent mock trial experiment reflected the same trend. 'Diminished responsibility' differs from the provocation and fear defences because the defendant is not judged by the standards of the ordinary person but by his or her own standards. It is based on emotional disorder (short of insanity) that can be recognised by the ordinary person. There are plenty of controversial issues related to jury decisions. The well-informed blogger EastSouthWestNorth notes that distorting alliances, blocs and coalitions can form within juries and that, as in the Kissel case, jurors frequently are not real peers of the accused as they ostensibly ought to be. Opinions vary, too, as to whether reason can ever be separated from emotion. Some extreme situations merit leniency. Yet, it is argued, while all murders are emotionally explosive, anger and despair are not mindless impulses; they are inextricably attached to thoughts about self-worth, hurt and unfairness. Far from being objective, criminal law is deeply rooted in emotion. A society's homicide law is nothing but an expression of how angry or fearful that crime makes the majority feel. Partial defences are based on emotions, and it is through emotion - the sympathy aroused in jurors - that a defendant claims leniency. Partial defences exist because most people think that some criminal acts are partially understandable. The law very wisely leaves room for the gut feeling of the 'ordinary, reasonable' jurors in the courtroom. How they interpret and temper those gut feelings, however, requires a cool head. Jean Nicol looks at everyday issues from the point of view of a psychologist everydaypsychologist@yahoo.com
