Provocation and Diminished Capacity in Nordic Criminal Law: Two Rationales for Mitigating Crimes of Violence Committed in an Agitated State of Mind

Abstract

One of the key distinctions when assessing crimes of violence, such as intentional homicide and assault, is that between acts committed in ‘cold’ and ‘hot blood’. The last term refers to acts committed in an intense emotional state, usually in response to a perceived insult from the victim. In the penal codes of Denmark, Norway and Sweden, mainly two types of mitigating circumstances are associated with these acts. These mitigating circumstances can be referred to as ‘provocation’ and ‘diminished capacity’. In this article, the division between these two types of different provisions is challenged through an analysis of their rationale. Finnish criminal law is presented as an alternative to making the distinction. The article’s analysis highlights the underlying psychological and moral assumptions about emotions and violence on which these provisions on mitigating circumstances are built.