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THE REFORM OF THE LAW OF HOMICIDE IN ISRAEL
spontaneous intention with no premeditation. But, the judiciary, being accustomed
to draw inspiration from English law?" did not stop at a subjective test, examining
the state of mind of the defendant, with the effect of negating premeditation. It
required, based on English law (with a different structure of homicide offenses
and a different rational and function of provocation) an additional objective test.
Accordingly, it was not enough that the defendant acted while being provoked; it
is also required that a reasonable person in his shoes could also lose his temper.°®
Difficult questions rose, for instance whether and to what extent the objective
test should be suited to the defendant and his specific traits. The question of
recognition or rejection of a claim of provocation was critical because of its very
different implications: a conviction of murder with a mandatory life sentence or a
conviction of manslaughter with a maximum sentence of 20 years imprisonment.
In the new law, killing under provocation has a double role. Subjective provocation
is sufficient to negate the aggravation based on premeditation, i.e. locating the case
as a plain murder. When the provocation fulfills all conditions required in the law
concerning diminished liability/responsibility, it falls under this category. This is
a more complex and refined differentiation, with more moderate outcomes. The
new law defines homicide in diminished liability due to provocation, as:
The act was committed immediately after a provocation against the defendant
and as a reaction to this provocation, provided that two conditions are fulfilled:
— because of the provocation the defendant was under a considerable difficulty
to control himself;
— This difficulty mentioned above reduces his culpability, when considering
the totality of circumstances of the case.
It is not enough that the defendant almost lost control of himself. This fact (not
the act of killing) can be understood as a human-natural reaction to the provocation
and has therefore to be recognized as diminishing his culpability. The totality of
circumstances has to be taken into account. It can happen that the provoked killer
was the initiator of the incident — he provoked the provocation against him. Such
conduct should be measured and it may rule out the mitigation of his culpability.
(c) Homicide by perpetrator suffering from mental disorder
It is a homicide case close to mental incapacity (insanity). The definition of this
case in the new law is the same as in the former law:
In a situation, in which — because of a severe mental disturbance or because
of a defect in his/her intellectual capability, the defendant’s ability to do one of
37 On English law at that time, and criticism on it, see Glanville Williams, Provocation and
the Reasonable Man, Criminal Law Review (1954), 740-754.
38 See Crim.App. 46/54 A.G. v. Segal, 9 P.D. 339 (1955). See also Shneur-Zalman Feller,
Principles of Criminal Law, Vol. I. Jerusalem, 1984, 567, (in Hebrew).
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