Homicide law reform and gender: Configuring violence
| DOI | 10.1177/0004865812456852 |
| Author | Jenny Morgan |
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
45(3) 351–366
!The Author(s) 2012
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0004865812456852
anj.sagepub.com
Article
Homicide law reform and
gender: Configuring violence
Jenny Morgan
University of Melbourne, Australia
Abstract
This article charts aspects of the engagement by formal law reform agencies with feminist
ideas in the context of homicide law reform. This requires, of course, a concentration on
violence against women. The article uses law reform work on the provocation defence to
map the ways in which violence against women was an apparent driver of reform. It
has Victorian law reform as its focus, and concentrates on the various manifestations of
independent law reform agencies in Victoria – the Victorian Law Reform Commission
(VLRC), and its two predecessor agencies, the Law Reform Commission of Victoria
(LRCV) and the Law Reform Commissioner. The article explores the thesis that when law
reform, at least homicide law reform, is driven by the social context in which the legal
phenomenon of interest occurs, one is more likely to get progressive legal change than
where reform is driven by legal categories. However, that social context had itself to be
configured and the paper briefly traces the identification of ‘domestic violence’ as a social
phenomenon.
Keywords
domestic violence, gender, provocation
Introduction
This article charts aspects of the engagement by formal law reform agencies with
feminist ideas in the context of homicide law reform. This requires, of course, a concen-
tration on violence against women. My article uses law reform work on the provocation
defence to map the ways in which violence against women was an apparent driver of
reform. It has Victorian law reform as its focus, and concentrates on the various mani-
festations of independent law reform agencies in Victoria – the Victorian Law Reform
Commission (VLRC), and its two predecessor agencies, the Law Reform Commission of
Victoria (LRCV) and the Law Reform Commissioner. I explore the thesis that when law
reform, at least homicide law reform, is driven by the social context in which the legal
phenomenon of interest occurs, one is more likely to get progressive legal change than
Corresponding author:
Jenny Morgan, University of Melbourne, Melbourne Law School, University of Melbourne, Melbourne, 3010,
Australia.
Email: j.morgan@unimelb.edu.au
where reform is driven by legal categories (see Graycar and Morgan, 2005). However,
that social context had itself to be configured, and the paper briefly traces the identifi-
cation of ‘domestic violence’ as a social phenomenon.
The partial defence of provocation
The partial defence of provocation has provided a perennial focus of modern law
reform. Provocation, at common law, reduces murder to manslaughter. Broadly, the
defence is available where the accused was provoked by the actions of the victim to lose
his (or her) self-control and where the ‘ordinary person’ could have also lost self-control
and acted in the way the accused did (see Stingel (1990)). The defence has, at least in the
last 30 years, been controversial for a series of reasons. Should there be a defence where
the perpetrator has formed the intention to kill (see Parker (1964); Johnson (1976))? Is it
‘ordinary’ to respond to provocative conduct with homicidal violence? What should be
recognized as causing a perpetrator’s ‘blood to boil’, so that they are ‘out of control’?
Are words alone enough (Morgan, 1997)? Did the accused have to act suddenly or could
provocation accumulate over time (Parker (1964); Moffa (1977))? Is there a need for a
triggering incident (RvR(1981))? What characteristics, if any, should be attributed to
the ordinary person (Stingel (1990); Masciantonio (1995))? When the ordinary person
test was separated into two aspects concerned with the gravity of the provocation, and
the response of the ordinary person, could the jury understand the test? If the test had
become so complex that juries could not understand it, should it even remain a defence,
at least where the mandatory sentence for murder had been removed? These are all
intensely interesting questions for the law reformer. But my interest is whether and
how the defence configured violence against women. More particularly, my focus in
this article is whether and how formal law reform bodies constructed violence against
women as a relevant consideration in their deliberations around reform of defences to
homicide. I will touch on many of the perennial questions, but my main focus will be the
social context in which spousal homicide occurs, and the extent to which that context
constrained, governed, informed or was ignored by law reformers.
Where is the battering?
Catharine MacKinnon commented on the development of the legal claim for sexual
harassment, ‘[s]exual harassment, the event, is not new to women. It is the law of injuries
that it is new to’ (MacKinnon, 1987: 103). Similarly, women have always been subject to
domestic violence, and indeed have been the victim and occasionally, though less often,
the perpetrators of domestic homicide, but it took some time for that violence to be
recognized as a social phenomenon, and even longer as a problematic social phenom-
enon apparently relevant to law reform.
First, violence against women – or domestic violence – had to be recognized as
something more than an episodic individual failing. Australia’s first women’s refuge,
Elsie, was established in Sydney in November 1973 ‘for women and children who have
nowhere to sleep’, and by January 1974 it was advertised more specifically for any
woman ‘needing to escape a violent home, needing advice and friends when faced
with the legal, welfare, health system’ (Lake, 1999: 229). Helen Rhoades et al. have
352 Australian & New Zealand Journal of Criminology 45(3)
To continue reading
Request your trial