How ‘PROVOKED’ can I be when someone sleeps with my wife ? By Jude Serbeh-Boateng

I am not married and so I am not in the position to describe how it feels for someone to sleep with another person’s wife or husband but I imagine—from all the stories I’ve heard that it must be very excruciating. Especially for some men because the pain would have been fuelled by your fragile masculine ego, pushing you to think of how the other man could be better than you, in more ways than one. Including the fact that he might be biologically endowed with an enviable feature you usually cannot enlarge—like the arms and the chest— in the gym. It is worse if the guy is a man of straw or much worse your domestic staff whose impecunity is very obvious to you because of the pittance you pay him.  It is not as though you abhor poor men in particular but that your wife had not slept with this person for the money. If she had you could have easily dismissed her as a greedy woman and moved on but when it is not about the money your ego will not stop making it about yourself and all your inadequacies—real or imagined. That is why when you find your wife cheating with another man, your first instinct is usually to kill him, this object of your humiliation and a walking testament to your shortcomings. 

It may sound far-fetched but the criminal jurisprudence of most common law countries like Ghana recognize the need to sympathize with people who commit such crimes of passion. So that only in cases of homicide, the law allows a partial defence known as provocation. According to Section 52 of the Criminal Offences Act, the defence of provocation has the effect of reducing a murder charge (which is a straight up life sentence) to manslaughter (a first degree felony which carries a sentence between one day and life imprisonment depending on the circumstance). So that if a judge were to feel pity for you—suppose the jury found you guilty—she/he will still be well within the law to sentence you to a few months in jail. So although provocation is a partial defence, it can be the difference between a death sentence and a couple of months in jail. 

What amounts to provocation, though, is a question of law. This means that, it is the law that decides the circumstances under which you are allowed to be so provoked as to take the life of another person. Section 53 of the Criminal Offences Act spells out four situations that amount to extreme provocation of the kind that operates to reduce murder to manslaughter. One of these circumstances is prescribed in Section 53(c): “an adultery committed in the view of the accused person with or by the wife or husband…” 

A few years ago, there were videos circulating on social media in which an infamous Ghanaian celebrity was seen naked and in bed with another man who was not her husband. On the other end of the device that did the recording of this video was her husband who had walked in on them. He had a bottle in his other hand the content of which was believed to be acid, which he threatened to use on them as they frantically begged for their dear lives. It became the topic on the airwaves for several weeks following the incident. The discussions, among other things, bordered on what would have happened if he carried out the threat, that is whether or not the law would have justified his actions. 

Apart from the fact that provocation is only a partial defence, the law sets a rather high bar in the specific instance of seeing your wife in bed with another man. The law says that you must have seen them in “flagrante delicto”.  Which means that you must have seen them in the very act, “fiili fiili”, as it is referred to in Ghanaian lingo. It is not enough if someone saw and told you. It is also not enough if you saw a recorded footage. In fact, it is not enough if they just finished as you walked in, as was the case in this particular instance of this man who walked in on his celebrity wife. When he flung the door open his wife and her lover were startled and so sprang up in alarm, standing upright on the bed and drawing the sheets to cover their nakedness. This was what he saw as he entered, which clearly did not qualify as in flagrante delicto as he had not seen them in the very act of sexual intercourse. 

Had he carried out the threat he would have been unable to rely on the defence of provocation. Simply put, he had no legal justification to be so provoked as to take any action whatsoever against the person of his wife and this other man. Thus, in the eyes of the law it is not a question of whether or not he slept with your wife but whether or not you saw him doing it. Indeed case law has shown that people hardly succeed in mounting this defence because of the stringent requirement of seeing the actual act of sexual intercourse. In fact, in one case involving a blind man who had killed his wife for sleeping with another man and helping him escape when he found them—where the judge directed that “in the view of” should be construed in his case to mean “to the hearing of”it was still found that he didn’t exactly hear them in the act and had merely caught them in bed together—I suppose quietly—and so the defence was inapplicable. 

The tricky thing, also, about the defence of provocation is that even in the event of seeing them in the act, the clock immediately starts ticking. This is because of the idea that it was what you saw that made you lose your power of self-control and made you act in a way you wouldn’t have ordinarily. Thus, every second after seeing them speaks to the gathering of composure and time to reflect on your actions. This means that you have to decide, very quickly, exactly what you saw, pick the nearest weapon and strike and, the defence being available only in the case of homicide, you have to be sure he dies in that one attempt.

Getting that split of a second decision right could be the difference between a death sentence and spending some time in prison for manslaughter or for some other  offence— like causing harm with a deadly weapon—in the event that he survives the attack. 

If you were to see—or think you saw—your wife in the “very act” with another man, my advice would be that no matter how hurt you may feel in that moment, you are not in a state of mind to make a call the law will recognize as provocation, risking a death sentence. It is certainly not worth the trouble, especially when the alternative is a jail term that could potentially go all the way up to life. Just walk away, take a deep breath, get yourself a chilled bottle of water and live to drink another one a free man. 

PS: The laws of Ghana do not recognize sexual relations between two women in so far as this discussion is concerned (hopefully that changes soon). This accounts for why all references to the third party (the provocateur) has been consistently masculine.