Controlling Passion: Adultery and the Provocation Defense

Abstract

Adulterous wives, especially those caught in the act, are classically provoking. Conventional wisdom explains that the ordinary, reasonable, otherwise law-abiding person cannot be expected to control himself when faced with an actively faithless spouse - or at least, control becomes so hard to maintain that a defendant who kills under those circumstances may be partially excused. But the conventional wisdom is wrong: most people can control themselves under such circumstances. Instead, provocation is properly grounded in justification, and should be permitted only to those defendants who were legally entitled to use some amount of force when they killed.

Keywords: provocation, mitigation, manslaughter, justification, excuse, purposes of punishment

JEL Classification: K14