The excuse of provocation should not apply to killings of unfaithful wives
USA AND UK: CRIMINAL LAW
2019Roni ROSENBERG, «A new rationale for the doctrine of provocation: applications to cases of killing an unfaithful spouse», Columbia Journal of Gender and Law, vol. 37:2, 2019, p.220.
Provocation is a mitigating factor in criminal culpability for intentional killing in the USA. According to the current jurisprudence in the USA, it requires that the killer committed the killing while in a state of emotional turmoil because of an unexpected provocation (subjective requirement) and that any reasonable person would have experienced a loss of self-control in this situation (objective requirement; p.220-221). In many states of the USA (under conditions which vary from state to state; see pp. 239-241), the “objective” requirement is seen as fulfilled if a person kills his wife as he suddenly discovers her unfaithfulness (pp. 221-222). The author proposes to replace this requirement by a test based on the values protected by the criminalization of murder (pp. 244-252). These values are not only life itself but also society’s autonomy, i.e. the possibility for everyone to act in a lawful way without the fear of being killed (p.246 and 253), and the human right to dignity (pp.249-251). The author argues that society’s autonomy is less affected by a killing due to a serious unlawful provocation than by a deliberate killing: indeed, people can still feel secure if they are not the author of such a provocation (p. 247). He also argues that a killing due to a loss of self-control – without the possibility to be aware of the interests of the person killed – constitutes a violation of human dignity which is smaller than in the case of a deliberate killing (p. 251). He therefore proposes that for the recognition of a provocation in the case of a murder, it should be shown that both values (the autonomy of society and the right to human dignity) were less affected (p. 251). He observes that the test based on the question whether a reasonable person would also have lost his control do not take the autonomy of society into account, so that this criterion is not relevant (p. 254). Applying his criterion based on the values protected, he observes that a provocation could not be recognized for a man who would kill his wife after having discovered that she was unfaithful. Indeed, engaging in an extramarital sexual relationship is lawful; recognizing a provocation would therefore violate society’s autonomy (p. 253).
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