(Non)Consenting Adults: Illinois Opinion Finds Adultery Is Serious Provocation, Sexual Assault Is Not

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I’m currently teaching 2nd degree murder in my Criminal Law class and was looking for a good Illinois case on the subject. In Illinois, a defendant who could otherwise be convicted of 1st degree murder can be convicted of 2nd degree murder if, inter alia, “at the time of the killing he or she is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he or she negligently or accidentally causes the death of the individual killed.” Illinois courts have found that only four categories of acts qualify as serious provocation under Illinois law: “substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse.”

Illinois courts have been reluctant to find that any other acts qualify as serious provocation. I think that this approach is a bit formalistic, but I can understand why these courts have wanted to limit the number of circumstances in which defendants can claim serious provocation. But I cannot understand the logic of one of the cases I came across: People v. Yarbrough, 645 N.E.2d 423 (Ill.App. 1 Dist. 1994). In Yarbrough, a boyfriend learned that the victim allegedly raped his girlfriend, so he shot and killed him. Yarbrough claimed that at most he should be found guilty of second degree murder because he was adequately provoked. According to Yarbrough, his case was analogous to a case in which a defendant kills his wife after catching her committing adultery.

The court disagreed, concluding that

To date, no Illinois court has extended the adultery category beyond a legal marriage to marital-type relationships.

In any event, the physical act involved in this case is criminal sexual assault…, not adultery….We believe that the public policy of this State dictates that the appropriate response to sexual assault is to seek redress through the criminal justice system.

So, what’s the implication here? That the public policy of Illinois dictates that the appropriate response to discovering your spouse committing an act of adultery is to murder him or her?

-Colin Miller

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