Criminal Responsibility and the Emotions: If Fear and Anger Can Exculpate, Why Not Compassion?

Abstract

The article offers an Aristotelian analysis of emotion-based defences in criminal law: someone who commits an offence is entitled to an excuse if she was motivated by a justifiably aroused and strongly felt emotion that gave her good (albeit not good enough) reason to commit the offence, and that might have destabilized the practical rationality even of a ‘reasonable’ person. This analysis captures the logical structure of duress and provocation as excuses—and also shows why provocation is controversial (and should perhaps be rejected) as even a partial defence. This pattern of analysis is then applied to compassion as a motivation for assisting another’s death, in the light of some recent developments in English criminal law’s treatment of assisting suicide: even if we accept that (in the law’s eyes) such assistance cannot be justified, we can see how compassion can ground an excuse, and make sense of the Director of Public Prosecution’s recently published Policy for dealing with cases of assisting suicide. Finally, the article briefly discusses the question of whether, if we accept that assisting suicide can sometimes be justified, compassion should play any essential role as an element in such justification.