Some courts appear to have created exception to this exception: if the words spoken by the victim informed the defendant of an event that, had the defendant witnesses it, would be legally provocative, the words might qualify.⁸ Thus, confessions of adultery or taunts relating to sexual potency or competency may suffice as provocation. People v. Berry, 556 P. 2d 777 (Cal. 1976). However, other courts held that not even confession of adultery would suffice. A verbal communication that adultery has occurred or will occur falls within the rule that mere words are insufficient provocation. Chevalier, 131 III.2d at 66.

On the other hand, the Supreme Court of Thailand recognizes abusive or insulting words as adequate provocation defenses.

The deceased wanted to continue playing cards but the defendant did not want to The deceased abused the defendant with very harsh words about various things. The deceased continued abusing the defendant for some time. The defendant hit the deceased at that moment. The defendant acted under extreme emotional disturbance. (Supreme Court decision no. 1586/1966). Shouting at the defendant that defendant's mother was a prostitute and passed away because of AIDS. This was an accuse that the defendant's mother was a slut. The defendant as a son was provoked. (Supreme Court decision no. 2770/2001).

1.7 Homosexual Advances as Provocative Acts
Several courts have ruled out nonviolent homosexual advances as adequate provocation acts. The defendant suggests that he was provoked by the victim's homosexual advance, which consisted of the victim's putting his hand on the defendant's knee and asking, "Josh, what do you want to do?" The defendant offered evidence that he was sexually abused as a child and that he was the victim of a homosexual "gang" rape shortly before the night of the murder. While the defendant's history of sexual abuse is tragic, it has no bearing on the question whether the victim's conduct satisfied the objective test of provocation. The issue is: would the victim's nonthreatening physical gesture and verbal invitation have provoked a reasonable person into a homicidal rage? The victim's question ("Josh, what do you want to do?") was neither insulting nor hostile; it was at most a salacious invitation. Clearly, neither the question nor the accompanying physical gesture (the victim's placing his hand on the defendant's knee) would have been "likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint." Because the evidence was insufficient to support a finding of reasonable provocation, the judge did not err in refusing to instruct the jury on voluntary manslaughter. Commonwealth v. Halbert, 410 Mass. 534 (1991). Defendant threw gasoline on the victim and then lit a match, catching the victim and his car on fire. Defendant testified he did not intend to burn The victim; rather, he threw the gasoline on the victim's car as retribution for what he perceived to be the victim's homosexual advances. The court found that sufficient evidence was presented from which a rational trier of fact could find that defendant maliciously caused the victim bodily harm by seriously disfiguring him, and the evidence prized a conviction for aggravated battery. McClain v. State, 232 Ga. App. 282 (1998). Under Illinois law, an unwanted homosexual advance is not one of the recognized categories of provocation under the voluntary manslaughter offense. United States ex rel. Page v. Mote, 2004 U.S. Dist. LEXIS 23318.

In Thailand, there is no Supreme Court decision regarding homosexual advances as provocation acts. Nevertheless, if the case comes up, homosexual advance shouId be treated by the Court as another circumstance which could cause people to lose control of their reaction. And the defendant who is aroused by such advances should be able to argue provocation as his or her defenses.

2. Reasonable Person Requirement
There are various cases and legal sources that give the scope or definition of reasonable person standard and the circumstances that should be taken into accounts when considering reasonable person requirement.

For provocation to be "adequate," it must be calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason. Girouard, 321 Md. at 532. In determining whether the provocation is sufficient or reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard. Maher, 10 Mich. at 212. From the Model Criminal Jury Instruction for the Ninth Circuit, provocation, in order to be adequate, must be such as might naturally cause a reasonable person in the passion of the moment to lose self-control and act on impulse and without reflection. This standard does not imply that reasonable people kill, but rather focuses on the degree of passion sufficient to reduce the actor's ability to control his actions.⁹

The Model Penal Code solution makes the test whether the defendant acted "under the influence of extreme emotional disturbance for which there is reasonableness of the explanation or excuse," and then directs that the determination of the reasonableness of the explanation or excuse shall be made "from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. The Reporter's Comment's Comments state (Model Penal Code and Commentaries, Comment to Section 210.3, at 62-63 (1980)): The word "situation" is designedly ambiguous. The MPC endorses a formulation that affords sufficient flexibility to differentiate in particular cases between those special aspects of the actor's situation that should be deemed material for purpose of grading and those that should be ignored. There thus will be room for interpretation of the word "situation," and that is precisely the flexibility desired ... in the end, the question is whether the actor's loss of self control can be understood in terms that arouse sympathy in the ordinary citizen. Section 210.3 faces this issue squarely and leaves the ultimate judgment to the ordinary citizen in the function of a juror assigned to resolve the specific case.¹⁰

The test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be "sudden quarrel" or some other forms of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reasons. In applying the objective standard for measuring the sufficiency of the provocation, the standard precludes consideration of the innate peculiarities of the individual defendant. That fact that his intelligence is not high and his passion is easily aroused will not considered in this connection. Guebara, 236 Kan. at 791. Under the objective or “reasonable person" test the individual's mental state is not the determinative factor. State v. Ott, 297 Or. 375, 686 P. 2d 1001 (1984).

An objective subjective test of reasonableness: it makes the test more, although not entirely, subjective, by requiring the jury to test the reasonableness of the actor's situation" Thus, the actor's sex, sexual preference, pregnancy, physical deformities, and similar characteristics are apt to be taken into consideration in evaluating the reasonableness of the defendant's behavior. Dumlao, 6 Hawaii App. at 173. In many jurisdictions, the reasonably prudent person now has many of the physical characteristics and experiences of the defendant. Thus, courts have allowed juries to consider, as part of the reasonable person's make-up, the defendant's age, gender, physical stature, physical disabilities, lack of sleep, and other such factors.¹¹ The determination whether there was reasonable explanation or excuse for a particular emotional disturbance should be made by viewing the subjective, internal situation in which the defendant found himself and external circumstances as he perceived them at the time, however, inaccurate that perception may have been, and assessing from that standpoint whether the explanation ... for his emotional disturbance was reasonable, so as to entitle him to a reduction of the crime charged from murder ... to manslaughter People v. Casassa, 49 N.Y. 2d 668, 404 N.E. 2d 1310 (1980). However, most courts do not consider any of the defendant's "psychological" characteristics, fearing that this would allow "hotheads" who do not attempt to control their anger a reduction based on their failure to improve their character.¹²

Footnote

8. Id. At 172-173.
9. Kadish & Schulhofer, supra, at 410.
10. Id. at 420.
11. Singer & La Fond, supra, at 174.
12. Id.