The homicide or killing of the abusive spouse results from a provocation by the abusive spouse. For instance, a couple argues and the argument escalates into physical injuries and ultimately, in the heat of anger, a spouse or domestic partner kills the other. In this instance, the abused partner may be charged with murder; he or she can then use the defence of provocation.
The defence of provocation is an incomplete defence. This does not mean that the accused spouse will be found not guilty. If provocation is proved, it only serves to mitigate the crime: the charge of murder will be dismissed and the accused will be charged with manslaughter. Thus, this defence allows the less serious felony of manslaughter to be charged instead of murder.
The penalty to be imposed will also be mitigated as murder is a graver offense than manslaughter and carries a more onerous penalty, usually life imprisonment.
This happens because in murder, the intent to kill must be present, and evident premeditation has to be proved. This means that when murder is charged, it will be the theory of the prosecutor that the accused spouse used means and ways to plan, with malice aforethought, the killing of the abusive spouse. In using provocation as a defence, the accused spouse admits to having killed the abusive spouse but the killing was unintended, and it was the result of obfuscation or anger of the moment.
The accused spouse can also use self-defence. This can only be invoked when the factual circumstances show that the abusive spouse attacked the abused spouse and the abused spouse, fearful for his or her life, defended herself or her children resulting in the killing of the abusive spouse. When an accused spouse uses this defence he or she also admits the killing but justifies the killing by saying that the killing was unintended and only resulted from defending himself or herself or their children.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.