Abstract
Research suggests that a serious sexual misrepresentation can spark an emotional firestorm in the deceived. But, as a matter of law, can this emotional firestorm be considered a reasonable heat of passion? In short, when may a killer assert the provocation defense given a serious sexual misrepresentation? The law currently addresses this question in a haphazard way. Despite the recurrent deception theme found in many provocation cases—such as those involving the concealment of adultery, sexual identity, or sexual health status—the law applies to these cases a patchwork of legal theories that masks the role of the deception in bringing about a reasonable heat of passion. This ad hoc approach leaves the provocation defense both doctrinally disconnected and normatively unappealing. This Comment thus proposes treating sexual misrepresentation as legally adequate provocation when (1) a defendant engages in a sexual act while reasonably deceived, (2) regarding a fact reasonably material to consent, and (3) the discovery of which would cause a reasonable person a severe mental or emotional crisis upon discovery.
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