A New Rationale for the Doctrine of Provocation: Applications to Cases of Killing an Unfaithful Spouse

By Rosenberg, Roni | Columbia Journal of Gender and Law, Spring 2019 | Go to article overview

A New Rationale for the Doctrine of Provocation: Applications to Cases of Killing an Unfaithful Spouse


Rosenberg, Roni, Columbia Journal of Gender and Law


INTRODUCTION

The doctrine of provocation as a mitigating factor in criminal culpability has been the subject of considerable study in various countries. (1) Under this doctrine, criminal liability for intentional killing is reduced from murder to manslaughter where the act was a reaction to provocation. (2) This raises a series of essential jurisprudential and ethical questions: Is it truly appropriate to reduce the criminal liability of one who killed intentionally simply because the killing was a result of provocation? And if it is appropriate to reduce criminal liability, what ethical rationale supports this? What is the significance of this position vis-avis the value of sanctity of life? Finally, what is the ethical distinction between killing due to provocation and killing due to despair or unrequited love?

In the United States, criminal jurisprudence generally requires both that the killer committed the act while in a state of emotional turmoil due to unexpected provocation and that any reasonable person would have been provoked in such a situation in order to support a provocation defense. (3) That is, this defense is based upon a two-prong test, including both subjective and objective components. (4) The subjective requirement is that the provocation did, in fact, impair the defendant's ability to think rationally and resulted in a loss of self-control, such that the killing was performed with no thought as to consequences. (5) The objective inquiry considers whether a reasonable person would have experienced such a loss of self-control under those circumstances. This latter question, whether most people would have acted as the defendant did under the same circumstances, is not operative because it is clear that the answer will always be in the negative; rather, the question is whether the provocation was outrageous enough that a reasonable person's judgement would be so affected. That is, even if a reasonable person would not kill in such a situation but might react with some degree of violence, it is possible to at least understand the behavior of the defendant who did kill. (6)

Taking this one step further, in many states in the United States, a man (7) who killed his wife upon discovering that she had been unfaithful to him can rely upon the provocation defense so long as he can demonstrate that sudden discovery of the infidelity affected his subjective judgement. (8) That is, under United States criminal jurisprudence, a situation in which a woman has been unfaithful to her husband satisfies the objective element of something that would provoke a reasonable person to kill his or her spouse. This conclusion has been subject to sharp criticism from many scholars who claim, inter alia, that the lessening of criminal liability in the case of killing an unfaithful spouse stems from misunderstanding the rationale behind the provocation defense. (9) Other scholars argue that reducing criminal liability in such a situation is inconsistent with the understanding that a woman is not her husband's property. (10)

This essay proposes a different rationale for the doctrine of provocation, which negates the reliance on the provocation defense in the case of an unfaithful spouse. The proposed rationale is neither excuse, which focuses on reduced guilt due to the defendant's loss of self-control, nor justification, in that the victim was partly responsible for his or her own death. Rather, the rationale rests upon an understanding of why murder is prohibited and an examination of the protected values at the core of the offense of murder.

While the intuitive assumption is that criminalizing murder seeks to protect only the value of life itself, (11) I maintain that there are, in fact, three distinct values being protected: physical human life, the right of human beings not to be treated in a humiliating and belittling manner, and autonomy of society at large to live with a feeling of security, free of fear. …

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