Not before time, a NSW Legislative Council committee is considering the possible abolition of the provocation partial defence to murder. If the defence is successful it reduces murder to manslaughter, which invariably means a vastly shorter sentence. Victoria, Tasmania and Western Australia have already abolished the provocation defence and Queensland has limited its use.
As Adele Horin explains in an excellent short article on the provocation defence:
It should not have taken the brutal killing of Manpreet Kaur at the hands of her husband to prompt an inquiry into the use of provocation as a partial defence in NSW murder trials.
Other states abandoned the defence years ago, or restricted its use, because it has served to excuse male violence against women and promote a culture of victim-blaming.
But it did take a woman to die to spur action in NSW. Just as a woman [Julie Ramage] had to die in Victoria before the law was changed there in 2005.
In May, Manpreet Kaur’s husband, Chamanjot Singh, was found guilty of the lesser crime of manslaughter on the grounds of provocation, having strangled her and cut her throat at least eight times with a box cutter.
It seems to me that it’s also well past time for the provocation defence to be abolished in the Northern Territory, although that suggestion raises some difficult issues that I’ll discuss below.
The provocation defence is most often deployed by violent males who kill their wives in a fit of jealous rage. Sometimes it’s also used by blokes who kill to affirm their (presumably very fragile) masculinity after a homosexual advance. Graeme Coss argues powerfully against the availability of a provocation defence in such situations:
Why privilege ‘loss of control’? Why does lethal retaliatory anger in response to an insult warrant the Law’s sympathy? Briefly, the partial defence of provocation historically arose to express tolerance for human frailty, at a time when men bore arms and retaliated to affronts to their honour (Horder 1992; Singer 1986). But whilst the historical foundations are fascinating, their relevance for justifying the defence today is questionable. Drawing on the work of psychologists, one set of commentators has asserted the fallacy of the notion of loss of control:
Angry impulses do not so overwhelm us to the point that we become enslaved by them. We are endowed with a high level of choice conceming how we act, even in relation to the most provocative forms of conduct. Those who lash out when confronted with a distasteful experience do not respond in this manner because of an absence of a meaningful choice. They do so because they elect to do so…. [T]he desire to ensure that a loved one does not die in pain (resulting in an act of mercy killing) might be just as powerful as the anger stemming from a confession of adultery. The latter should enjoy no special privilege in the law…. [Loss of control requiring that the accused was] ‘so subject to passion as to make [them] not master of [their] mind’ [is] more akin to a state of automatism than one with the requisite mens rea for murder (Neal & Bagaric 2003:247-248).
When men raise the provocation defence, it is invariably in circumstances where they allege they have been insulted, mocked, humiliated, or spurned. In intimate partner killings, the real ‘loss of control’ is that the men have lost control of their women. To have that control challenged is an affront to their honour. It is regularly in circumstances where the allegation cannot be verified, because the only witness to the alleged provocative incident is, conveniently, dead (Morgan 1997). It could be argued that it is similarly convenient that the provocation defence insists that the jury must consider the evidence most favourable to the accused; that it permits the potential for his invention to be regarded as ‘fact’.
And ordinariness: could an ordinary person respond with lethal violence to an insult? As I have previously argued (Coss 2005:134), this is not supported by the facts. Ordinary people do not so respond. In Australia each year on average 77 intimate partner homicides occur; and on average, men are perpetrators in about 60 of them (Mouzos & Rushforth 2003:2). In most cases there are insults, threats of or actual separations, suspicions of or confessions of unfaithfulness – all affronts to male honour. It would appear that approximately 50 men kill their intimate partners each year in these classic circumstances. But how many intimate partner breakdowns occur each year? We know from the Australian Bureau of Statistics that there are between 50,000 and 55,000 divorces recorded each year. Anecdotal evidence suggests that the number of de facto breakdowns is likely to be considerably higher than that. It would be impossible to determine the numbers of breakdowns of intimate couples (boyfriend and girlfriend, or same sex). But it is conceivable that the combined figure of all these groupings is likely to swell the total out to 200,000 or more. And in Australia each year, in 100% of those breakdowns, insults and hurtful remarks would be exchanged. But this figure does not include the massive numbers of intimate relationships that do not break down but in which hurtful remarks are exchanged - numbers in the millions. And yet only 50 men kill their intimate partners each year when affronted by insults, separations or confessions. Men who kill when affronted by their intimate partners are truly extraordinary. It is problematic that the provocation defence’s existence confirms that the criminal law believes such men warrant sympathy, and thus a significant reduction in sentence.
That isn’t to suggest that there are no cases where one could imagine a normal/reasonable person responding to events with homicidal violence. The case of Jeffrey Gilham is one such situation, assuming one gives credence to his story that he fatally stabbed his brother upon discovering that the latter had just stabbed their parents to death and burned their bodies (a proposition about which I must say I still have doubts despite Gilham’s murder conviction recently being quashed on appeal).
The other sort of situation that gives cause for hesitation about abolishing the provocation defence is that of battered wives. As Adele Horin observes:
But reform needs to proceed carefully as the pitfalls are many. Provocation has been used as a defence by women who have killed in response to prolonged domestic violence.
Although typically these women do not suddenly lose control but, rather, make a calculated decision to kill their spouses after decades of abuse, the provocation defence has allowed some to avoid a murder conviction.
Would abolishing the provocation defence give these battered women no recourse?
An eminent scholar in the field, Dr Kate Fitz-Gibbon, of Deakin University, who completed her PhD on the provocation defence, strongly supports its abolition.
She says the way to protect women in family violence cases lies in reform of the law of self-defence; women, in genuine cases, should not need to resort to the provocation defence.
She cites the use of the provocation defence in 15 cases in NSW between 2005 and 2010; a significant number. In most cases, the offenders and victims were men; in three, the victim was the current or estranged partner of her killer.
In the Northern Territory (and in Queensland) there is an additional potential problem with abolishing the provocation defence. Murder here carries a mandatory life sentence, with a minimum non-parole period of twenty years (and it may be even more in some situations). In those circumstances there may be a danger that a jury will acquit entirely if (however dubiously) jurors’ sympathies are engaged by defence lawyers and the jury doesn’t have the option of finding the accused guilty of a crime carrying a potentially lesser sentence.
However that problem could be mitigated if the law was amended to remove the mandatory life sentence requirement for murder in situations where provocation would previously have been available. That would also potentially assist the situation of the battered wife. A suitable minimum non-parole period could still be imposed to ensure that the inexcusable gravity of deliberately taking another person’s life is not undermined (as the provocation defence unavoidably does).
Below is some further reading on this and the related subject of the partial defence of diminished responsibility:
- Defences to Homicide (Victorian Law Reform Commission report)
- Gilham v R  NSWCCA 131
- In cold blood (Sydney Morning Herald article on Gilham case prior to Jeffrey Gilham’s very recent acquittal on appeal)
- Out-of-step excuse is no defence (Sydney Morning Herald article by Adele Horin – 14 July 2012)
2. Jealous husbands and battered wives
- Graeme Coss, ‘The Defence of Provocation: An Acrimonious Divorce from Reality ’ 18 Current Issues in Criminal Justice 51 (2005) (password-protected)
- Danielle Tyson, ‘Victoria’s New Homicide Laws: Provocative Reforms or More Stories of Women ‘asking for it’? ’ 23 Current Issues in Criminal Justice 203 (password-protected)
- Asher Flynn & Kate Fitz-Gibbon, ‘Bargaining with Defensive Homicide: Examining Victoria’s Secretive Plea Bargaining System Post-Law Reform‘ 35 Melbourne University Law Review 905 (2011)
3. Homosexual advances as provocation
- Qld scraps ‘gay panic’ defence changes (Herald Sun 16 July 2012)
- Alan Berman, Heather Douglas & Paul Kelly, ‘It is better late than never to scrap the antiquated ‘gay panic’ defence‘ Online Opinion 28 June 2012
- Santo de Pasquale, ‘Provocation and the Homosexual Advance Defence:The Deployment of Culture as a Defence Strategy‘ 26 Melbourne University Law Review 111 (2002)
4. Diminished responsibility
- Joe Cinque’s Consolation (The Age - book review by Morag Fraser)
- Andrew Hemming, ‘It’s time to abolish diminished responsibility, the coach and horses’ defence through criminal responsibility for murder ’ 10 University of Notre Dame Australia Law Review 1 (2008)