Red Mist and the Irresistible Defense of “Losing It”

Definitions

What does it mean to say someone is “mad”? There are two usual connotations: anger (I’m so mad at you for doing that!) and an irrational idea or emotion (He’s gone mad!). A third speaks for itself; being in love, as in Noël Coward’s I’m Mad About You. If someone gets angry enough or is provoked into rage, uncharacteristic, if not irrational, behavior can follow. The question is whether that behavior is legally excusable.

Two millennia ago, Roman philosopher Seneca² offered observations likening anger to madness (clinical insanity). He located anger in the suspension of self-control, not necessarily devoid of self-awareness. Physiologically, he regarded anger and insanity as the same:All other passions have something calm and quiet about them; this one consists entirely in aroused assault…. Raging with an inhuman desire to inflict pain in combat and shed blood in punishment, it cares nothing for itself provided it can harm the other (Ref. 2, p 14).

“Seeing red” implies a feeling and, one could argue, a cognitive state, appearing between provocation and behavior. It is a meme found within and outside of criminal proceedings. The Oxford English Dictionary (OED) defines “to see red” as “to become very angry; to lose self-control.”³ When coupled with mental disease, an irresistible impulse may satisfy the volitional defense of insanity. Without mental illness, there is mitigation via passion-provocation or EED. Metaphysical questions remain about whether someone overcome by emotion is also cognitively impaired. I shudder to think that a jury would be charged with deciding whether a person, seeing red, can still distinguish right from wrong. Under the volitional analysis, it doesn’t matter. Individuals have different thresholds for “losing it,” another problem in calibrating a reasonable-person or insanity standard. Regardless, the idea of nonresponsibility is consistently replicated in legislatures, perhaps owing to the folk-psychological appeal of a person overcome by feelings. In a way, we’re still in the era of Pinel’s manie sans délire, partial insanity, because about 20 American jurisdictions retain a version of volitional insanity (MPC or variations), and half as many allow EED.

Red Mist

The experiential transition between ordinary consciousness and “losing it” has been described as “red mist.” The OED defines the term as “chiefly British, the apparent physiological effect of a rush of blood to the head in anger or excitement, represented as an impediment to vision; (usually figurative) a fit of extreme rage or violent passion that clouds one’s judgment” (emphasis and spelling in original).³ So, is red mist a “defect of reason” or a substantial “lack of capacity” to conform behaviorally to the norm? Britons continue to claim red mist, although their credibility seems inversely proportional to the gruesomeness of the crime, as we will see. Defense by metaphor, one would think, would be the lead balloon of excuses, and yet this defense retains cultural currency.

The British Royal Family may not be immune from red mist. During his memoir-promoting tour, Prince Harry described a row with his brother William, the future king, in 2019.⁴ It was over Prince Harry’s marriage. He recalled to a reporter, “What was different here was the level of frustration, and I talk about the red mist that I had for so many years, and I saw this red mist in him.”⁴ Prince William allegedly lost control, assaulting his brother, whereas Prince Harry claims he kept his cool.⁵ Harry was being reasonable.

An Anatomy Lesson

A reasonable person can have a bad day and get away with it; a jealous husband, for example. In the 1958 book and 1959 movie Anatomy of a Murder, based on a 1952 murder trial in Michigan’s Upper Peninsula, a soldier was acquitted of murder by reason of insanity. The actual case, defended by the book’s author, was thinly disguised in the fictional versions and contained fascinating expert testimony. Lt. Manion, the fictional jealous husband of a coquettish wife, Laura, learns (from her) that the local bar owner raped her. He coolly brings a gun to the bar and empties it into the man. It was not a direct provocation of the defendant by the victim, so the defense investigates insanity. The overconfident prosecutors are eager to try the case because, as far as they know, legal insanity in Michigan requires mental illness plus not knowing the act is wrong.

Library research by Lt. Manion’s lawyer (Paul Biegler in the book and movie) and Biegler’s mentor and sidekick (Parnell McCarthy) uncover an actual 1886 Michigan legal decision, People v. Durfee (62 Mich. 487 [1886]). The decision was in response to an appeal of a murder conviction. Durfee noted that the condition for insanity, not knowing that the act was wrong, could alternatively be satisfied by the presence of an irresistible impulse. If a person’s inability to resist an impulse was attributable to disease, the jury may consider insanity. But if the person were merely outraged, insanity would not apply. Mr. Durfee lost his appeal. In the book and film, however, the defense expert, Dr. Smith, testified that Lt. Manion would have known right from wrong, to the delight of the prosecution. But, he added, having been privy to Durfee, a person such as Lt. Manion could have been in a state of “dissociative reaction” in which tension had to be alleviated, resulting in the impulsive act. This preserved the mental disease requirement of the law. The defense team kept the case law under their hat, springing it on the cocky prosecutors at a pivotal point in the judge’s chambers. This forced the prosecution to present rebuttal evidence from a psychiatrist, Dr. Harcourt. He had not seen the defendant except during testimony. Dr. Harcourt then testified that a dissociative reaction only occurs in the context of an underlying psychoneurotic condition, which had not been established. In this pre-MPC drama, it seems that the allure of the volitional excuse had crept in. The jury bought it and acquitted, and the Manions stiffed the lawyers and drove off to continue their suspicious pas de deux, while counsel regained their professional self-esteem.

Across the Pond

Dashing off to the United Kingdom from the Upper Peninsula, I see that British furor over red-mist defenses and their tabloid coverage has collided with feminist philosophy and legislative activism. I hear you: Would you unpack that, please? Sure, first, let’s go back hundreds of years. In Shakespeare’s time and in classical antiquity, sexual infidelity (or even the suspicion of it) constituted a “warranted excuse” for a man to kill a woman (femicide).⁶ Such killings went unpunished. The tradition continued into Victorian England, although by the mid-20th century a sizeable minority of wife killers were hanged for murder.⁶ Feminist analyses pushed for a redefinition of provocation and a leveling of the playing field in intimate-partner violence (IPV).⁷

At the beginning of the 21st century, men still claimed they didn’t mean to kill; instead, a red mist had descended. The metaphor was no longer a misogynist dog whistle. These stories created tabloid fodder but also threw shade on this shallow excuse used in mitigation. If the woman had done or threatened to do something, let’s say, infidelity, the anticipated result for the man was less than a murder conviction. For example: In the 2001 red-mist killing of a 24-year-old woman in Liverpool, the defendant claimed he had “boiled over” but that it was not murder.⁸ Instead, the red mist descended when she told him that she was taking the two children and moving in with a man she had been seeing for four weeks. The court accepted his plea to manslaughter, and he was sentenced to four years. In a second 2001 homicide, an English solicitor fatally stabbed his wife in front of their children in a red mist, he said, after she said she was leaving him. He received a seven-year sentence.⁷

By 2003, government ministers were working on reform. They had had enough of “nagging and shagging” defenses, which, in essence, blamed the victim. Something had to be done to recalibrate self-control claims.

Refashioning Provocation

In 2009, England, Wales, and Northern Ireland reformed the law of provoked homicide. Under the Coroners and Justice Act,⁹ legislators abolished the common-law provocation defense to murder, renaming it “loss of control.” If successful, such a defense would reduce the crime to manslaughter. It was ostensibly an attempt to bring nuance to IPV, especially femicide.⁶ The reasoning was as follows: men should not be allowed to escape murder charges by blaming the victim, and eliminating sexual infidelity as a qualifying provocation would close a loophole.⁶ The logic behind the changes and their efficacy has been fiercely debated. Nevertheless, the essential elements of the defense are as follows: the killing resulted from a loss of self-control, the lapse had a qualifying trigger, and a similar person might have reacted similarly (Ref. 9, sec. 54). The triggers include: fear of serious violence; things said or done that “constituted circumstances of an extremely grave character” and “caused…a justifiable sense of being seriously wronged”; but “the fact that a thing done or said constituted sexual infidelity is to be disregarded” (Ref. 9, sec. 55). End of story? Hardly, but the results have been studied.

The new laws were tested in 2012 when three conjoined cases (known as Clinton¹⁰) came before the Court of Appeal; the men had been convicted of murder.⁷ When the court ruled that marital infidelity could broadly be construed within marital breakdown and consequent loss of control, it constituted backlash against the new reform.⁷ It was judicial legerdemain. Misogynists, it seemed, were back in business. Howe researched post-Clinton jurisprudence,⁷ declaring the new rules successful by feminist standards.¹¹ Her principal findings, although still evolving, fell into two important categories: first, victim-blaming narratives (what she did threw him into a red mist) are markedly less successful; second, the trigger element of fear is a usable defense by women who kill abusive men, also familiar in American cases.¹² In those scenarios, it may not be necessary for the threat to be imminent, as in classic self-defense. Although a cold vendetta may not always be excusable, an abused person’s slow burn may be sufficient in UK and American cases. Proof of a battered woman syndrome appears unnecessary on both sides of the Atlantic.

Additional loopholes, addressed by Howe,¹¹ include that men can reformulate their rage, not as sexual infidelity but as abandonment. Thus, in one case, “the jury could accept a loss of control defense if they believed her ‘threat’ to leave was the trigger making him snap” (Ref. 11, p 17). The reason for her departure does not have to be sexual. On balance, however, these authors conclude, “The historically mandated provocation by infidelity script followed in so-called ‘crimes of passion’ is finally losing its purchase” (Ref. 11, p 17). It remains to be seen whether the pendulum will continue to swing.

Don’t Stop the Presses

Folk psychology and misogyny are slow to change, and there is no shortage of male-on-male violence. UK news reports still disclose that red mist claims, often without traction, are seriously regarded in both the press and courts. Some examples: “The teenage killer of Leeds teacher Ann Maguire has told how a ‘red mist’ descended on him in the minutes before he committed one of the most shocking crimes in recent British history.”¹³ He pled guilty to murder. An Ashfield man used his car as a weapon after being insulted.¹⁴ The jury convicted him of murder, and the judge said, “There is no indication in this case that the red mist had descended”¹⁴ (as if that were the test). A man in Blyth fatally stabbed a man after a heated argument.¹⁵ The prosecutor claimed murder, saying, “But, we submit, at the moment he stuck the knife downwards and backwards into Scott Patterson’s chest, the red mist had come down and in that moment he intended to kill him or cause him really serious harm”¹⁵ (another reification of the metaphor). In London, a man killed his father saying “he lost control due to the victim’s unreasonable behavior.”¹⁶ The prosecutor said the claim of having “gone into a red mist” was not credible owing to antecedent deliberation. This is most similar to our fictional daddy killer. In Darwen, Lancashire, a jealous man beat his ex-girlfriend: “The red mist descended when he thought she was going back to her ex-partner’s without him,”¹⁷ his lawyer said. In Southampton, a homicide defendant tried conflating red mist and mental illness after a knife attack on an older man.¹⁸ He was convicted of murder. A man in Scotland killed his wife after she denied being unfaithful.¹⁹ Seeking diminished culpability, he was instead convicted of murder, even though Scotland is not under the Coroners and Justice Act.

It appears that UK judges have gotten the memo about excluding infidelity from the list of qualifying triggers. Still, the dynamic remains subjectively compelling for citizens under a red mist. For the moment, legislation has the upper hand over folk psychology. In America, the mitigating factor or defense of “losing it” retains its status in many jurisdictions.

Conclusions

The experience of anger or transient rage is not alien to everyday experience. Its folk-psychological appeal has permeated criminal law and has been a refuge for misogyny over centuries. But its analysis has also given voice to victims of interpersonal violence, bullying, shaming, and humiliation, whose no-exit existence distorts decision-making. After all, a person can take just so much before snapping. But the distortions, brought about by sudden or chronic insult to the self, collapse into cognitive matters rather than “pathologies of will,” as Morse has pointed out.²⁰ Compulsion, duress from an internal mental state, and red mist are stand-ins for knowledge of the mysteries of the brain. Somehow, this must be packaged for jurors as instructions on culpability.

What about my patricide case? The story was fictitious, appearing in the Daily Mail. Was the son reacting as anyone would to the rejection of disinheritance or as a spoiled snowflake without reasonable provocation? I could not align myself with an insanity defense (MPC or otherwise) because there was evidence that, on seeing the dagger, the defendant chose to use it. As angry as he was, I suspect he would have failed the low-tech policeman-at-the-elbow test.²⁰ A jury would not excuse him, I’d have suggested to counsel. The argument that he acted in the heat of passion after an objective provocation would likely not succeed. But this did not concern me because expert testimony is unnecessary and can be barred in a case using a reasonable-person standard. Mitigation would be the way to go; expert testimony could aid either by providing the jury with a narrative (not touching on reasonableness itself) or by explaining the claim of EED.²¹

EED differs from both insanity and passion-provocation in that neither severe mental illness nor responding instantaneously to the victim is required. The mental state must be objectively reasonable, not brought about by the defendant’s actions, and not attributable to intoxication. Although New York (Penal Law § 125.27 [2][a] [2019]) permits arguments without expert testimony, it also permits evidence of a reasonable explanation. My experience in Delaware is that testimony is used to affirm the EED phenomenon (11 DE Code § 641 [2022]) while not defining reasonableness. And as Lugo-Sanchez and colleagues,²² commenting on a Utah case, suggest, having such claims vetted by psychiatric experts may prevent misuse of the EED claim. Otherwise, testimony on mental illness is not favored in Utah analyses.²¹ Let’s remember, however, that all explanations are just that, not excuses at some fundamental level of biology.

Red mist and its related metaphors refuse to go away. They are squarely and stubbornly in the ambit of folk psychology, here by popular demand. I suppose, as Fats Waller and others have sung, “It will have to do until the real thing comes along.”²³