1.2 "Mutual Combat" Undertaken In "Chance (or Hot Medley"
Mutual combat is defined as a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat. Where a defendant retaliates completely out of proportion to the provocation, especially if he kills the victim with a deadly weapon, the mutual combat aspect of provocation does not apply. For instance, defendant's conviction arose from the shooting death of a 1 7 year old in a public housing complex, apparently after a series of arguments took place between the pair. During the final confrontation, defendant drew a gun and shot the victim twice. The court upheld defendant's conviction for first degree murder and the trial court's rejection of defendant's provocation argument. The court found it was reasonable for the jury to have concluded that defendant's act of shooting the victim was wholly disproportionate to the mutual combat that had ensured between the pair. People v. Thompson, 2004 III. App. LEXIS 1483.

Unlike The US, those who get into a fight willingly in Thailand can not claim provocation as their defenses. The deceased was drunk and abused the defendant. The deceased with the sword in his hand dared the, defendant to fight. The defendant with the long bamboo stick walked toward the deceased.

The deceased stabbed the defendant first but missed. The defendant/hit the deceased with a stick. The deceased succumbed to the wound and died. The defendant acted under extreme emotional disturbance. (Supreme Court decision no. 550/1974).

1.3 Defendant's Illegal Arrest
The Virginia Supreme Court held that the common law right to use reasonable force to resist an illegal arrest was inapplicable to the use of such force to resist an illegal detention. An illegal detention had manifestly different consequences from an arrest. Because a detention was, by its nature, a brief intrusion on an individual's liberty, the provocation resulting from an illegal detention was far less significant than the provocation that attended an illegal arrest. A person in Virginia did not have the right to use force to resist an unlawful detention or "pat down" search. Thus defendant did not have the right to use force to resist the challenged detention and "pat down" search by the officer. Commonwealth v. Hill, 264 Va. 541, 570 S.E.2d 805 (2002).

In Thailand, the police are vested with rights to arrest the suspect according to section 78 and 83 of the Criminal Procedure Code. In case the suspect resists the arrest, the laws allow the police to employ necessary measure to capture the suspect. Nonetheless, if there is an illegal arrest upon the defendant, the defendant could claim provocation defense for his resisting actions.

1.4 Injury or serious abuse of a close relative of the Defendant
One US court held that the very recent killing of a close relative may constitute adequate provocation. During a trial, there was evidence that the defendant reasonably believed that the deceased had just killed the defendant's brother. People v. Brooks, 185 Cal.App. 3d 687, 230 Cal. Rptr. 86 (1986).

Like in the US, injury or serious abuse of a close relative of the defendant ,is deemed a provocation circumstance in Thailand.
Firing afbullet at the father provoked the son (Supreme Court decision no. 518/1957). Abusing the mother as a prostitute and passed away because of AIDS provoked the son (Supreme Court decision no. 2770/2001). The battery upon the son provoked the father (Supreme Court decision no. 241 /1935). The battery upon big brother provoked little brother (Supreme Court decision no. 1577/1957).

1.5 Sexual Infidelity as Provocation
The law traditionally deems sexual infidelity adequate provocation because people can and do outraged in such situation.5

1.5.1 Sudden Discovery
Courts that permit sudden discovery of sexual infidelity to qualify as a potential basis for a heat-of-passion claim interpret the boundaries of this category narrowly.6 The reason for the restriction may be clear; courts did not wish to encourage precipitous action by unduly husbands.7 The circumstances could qualify as legally adequate provocation only if the defendant had suddenly discovered sexual intercourse taking place, not other sorts of sexual intimacy or sexual conduct. Dennis v. State, 661 A.3d 175 (Md.App. 1995). In Illinois, adultery with a spouse as provocation generally has been limited to those instances where the parties are discovered in the act of adultery or immediately before or after such an act, and the killing immediately follows such discovery. People v. Chevalier, 131 III. 2d 66, 544 N.E.2d 942 (1989).

On the contrary, The Supreme Court of Thailand does not only recognize sudden discovery of sexual infidelity as a provocation act. In case the defendant did not see the sexual intercourse, if, from the circumstances, the defendant could conclude that there is a sexual intercourse with his wife. The defendant can claim that he is roused.

The defendant saw the deceased caressing and kissing the defendant's wife. The defendant stabbed the deceased at that moment. The defendant acted under extreme emotional disturbance. (Supreme Court decision no. 1883/1969). When the defendant reached his wife's home, he saw the deceased just got out of his wife's bedroom. The defendant shot at the deceased immediately. The defendant was provoked. (Supreme Court decision no. 5/1957).

1.5.2 Parties Living Together But Not Legally Married
In case where the parties have long lived together but not legally married, the court held that voluntary manslaughter instructions were not required because defendant and the deceased, though they had lived together for many years, were not legally married. State v. Turner, 708 So.2d 232 (Ala. Crim. App. 1997).

In contrast to the US, the defendant in Thailand, though not legally married with the victim, can assert provocation defense.

The Defendant saw the lover making love with the deceased. Although defendant and the deceased did not legally married, they had lived together for more than thirteen years and had six children. When the defendant stabbed at a lover twice and at the deceased one time at that moment, the defendant can argue that he acted under extreme emotional disturbance. (Supreme Court decision no. 249/1982).

The modern circumstances are the followings:

1.6 Words
No words, however abusive and insulting, will justify an assault or will justify a sufficient provocation to reduce to manslaughter what otherwise would be murder. State v. Buffington, 71 Kan. 804, 81,P. 465 (1905). It is "with remarkable uniformity that even words generally regarded as `fighting words' in the community have no recognition as adequate provocation in the eyes of the law. Girouard v. State, 321 Md. 532, 583 A.2d 718 (1991).


5. Singer & La Fond, supra, at 172.
6. Kadish & Schulhofer, supra, at 412.
7. Singer & La Fond, supra, at 172

*"The Proposal of Voluntary Bankruptcy for Individual Debtors in Thailand" is published here with the permission of Kanok Jullamon. It originally appeared in the November-August 2007 edition of the Dulapata Law Journal.


© Copyright Thailand Law Forum, All Rights Reserved
(except where the work is the individual works of the authors as noted)