The Implementation of Feminist Law Reforms
| Date | 01 April 2017 |
| Published date | 01 April 2017 |
| DOI | 10.1177/0964663916666628 |
| Author | Rosemary Hunter,Danielle Tyson |
| Subject Matter | Articles |
Article
Social & Legal Studies
2017, Vol. 26(2) 129–165
The Implementation of
ª The Author(s) 2016
Reprints and permission:
Feminist Law Reforms:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0964663916666628
The Case of Post-
journals.sagepub.com/home/sls
provocation Sentencing
Rosemary Hunter
Queen Mary University of London, UK
Danielle Tyson
Deakin University, Australia
Abstract
In 2005, the Australian State of Victoria abolished the controversial partial defence of
provocation. Part of the impetus for the reforms was to challenge provocation’s victim-
blaming narratives and the defence’s tendency to excuse men’s violence against intimate
partners. However, concerns were also expressed that these narratives and excuses
would simply reappear at the sentencing stage when men who had killed intimate
partners were convicted of murder or manslaughter. This article analyses post-
provocation sentencing judgments, reviewing cases over the 10-year period since
the reforms in order to determine whether these concerns have been borne out. The
analysis suggests that at the level of sentencing outcomes they have not been borne out,
although at the level of discourse the picture is more mixed. While sentencing narratives
continue to reproduce the language of provocation, at the same time, post-provocation
sentencing appears to provide opportunities for feminist judging – picking up on the spirit
of the reforms – which have been taken up by some judges more than others.
Keywords
Feminist law reform, judicial attitudes, manslaughter, murder, partial defence of provo-
cation, sentencing
Corresponding author:
Rosemary Hunter, School of Law, Queen Mary University of London, Mile End Road, London E1 4NS, UK.
Email: rosemary.hunter@qmul.ac.uk
130
Social & Legal Studies 26(2)
Introduction
The partial defence to murder of provocation was abolished in the Australian state of
Victoria in 2005. Unlike the full defence of self-defence, which, if successfully argued,
results in an accused person being acquitted of murder, a successful defence of provoca-
tion resulted in a verdict of not guilty of murder, but guilty of manslaughter. The
elements that were required to be proven in order for the defence of provocation to
succeed were as follows: the deceased must have said something and/or acted in a way
that was provocative; the accused must have lost self-control as a result of the
provocation and killed the deceased while experiencing that loss of self-control; and
the provocation must have been such that it was capable of causing an ordinary person
to lose self-control and form an intention to inflict grievous bodily harm or death
(VLRC, 2004: 23).1 While the partial provocation defence remains available in Victoria
for offences committed prior to 22 November 2005, it can no longer operate to reduce
murder to manslaughter for homicides committed on or after that date. Provocation will,
however, still be relevant to the task of the sentencing judge when sentencing an offender
for murder or manslaughter.
Feminist critiques of the partial defence of provocation have been well rehearsed (e.g.
Bandalli, 1995; Fitz-Gibbon, 2014; Horder, 1992; Howe, 1994, 1997, 2000, 2013, 2014;
Morgan, 1997; Nourse, 1997; Radford, 1987; Tarrant, 1996; Tyson, 1999, 2013). The
abolition of provocation in Victoria was part of a comprehensive package of reforms
introduced by the Crimes (Homicide) Act 2005 (Vic). The reforms sought to address
long-standing concerns about the gendered operation of the defences to homicide –
namely that the availability and operation of the partial defence of provocation has
tended to privilege men who kill their intimate partners and to blame women for inciting
their own deaths. Men in this context often argued that the provocative conduct was that
their partner had been unfaithful or had taunted them about their sexual performance.
However, such claims tended to mask actual motivations of jealousy, possessiveness or a
need for control, and the killing tended to occur when the deceased was attempting to
leave or had left the relationship (Morgan, 1997: 247–250, 2002: 21–30). In contrast,
women rarely kill in the same circumstances as men; rather, when women relied on the
defence, they were often responding to a prior history of abuse perpetrated against them
by their partners (VLRC, 2004: xxv).
The way the full defence of self-defence was interpreted and applied was also seen to
disadvantage women. Men are most often successful in raising self-defence when they
kill in a confrontational situation, usually a stranger, acquaintance or friend. As women
rarely kill in these circumstances, they often face a number of barriers to establishing
their actions as self-defence (VLRC, 2004: xxvi). In addition to the abolition of provo-
cation, the reforms included the codification of self-defence as a defence to murder and
expansion of the scope of the defence so that it is more capable of accommodating the
experiences of abused women. The offence of defensive homicide was also introduced,
which, up until its abolition in 2014 by the Crimes Amendment (Abolition of Defensive
Homicide) Act 2014 (Vic), provided a partial defence for defendants who killed in
circumstances in which they believed their actions were necessary in order to defend
themselves from death or really serious injury, but they did not have reasonable grounds
Hunter and Tyson
131
for that belief. Finally, the Act introduced a new section into the Crimes Act 1958 (Vic)
(originally section 9AH, since 2014, section 322J) which provides for the admission of
evidence highlighting the relationship and social context of family violence in cases of
homicide where family violence is alleged.
The abolition of provocation was one of the key recommendations made by the
Victorian Law Reform Commission (VLRC) in its Defences to Homicide: Final Report
(VLRC, 2004). In considering whether the partial defence of provocation should be
abolished and/or a new partial defence should be introduced, the VLRC’s general
approach to the factors that reduce or eliminate criminal culpability, was that these
should be informed by the empirical literature on the social contexts in which homicides
typically occur (2004: 4). The VLRC was also guided by substantive equality principles
(2002: 66, 2003: xvii–xviii, 95–96; see also Morgan, 2002). In their report, the VLRC
were concerned that ‘the moral basis of provocation’ was ‘inconsistent with contempo-
rary community values and views on what is excusable behaviour’ (2004: 56). Of
particular concern was how provocation operated as a legitimate excuse for a person
to kill another person, usually a woman, who was exercising her ‘personal rights, for
instance to leave a relationship or to start a new relationship with another person’ (2004:
56). Accordingly, the VLRC was of the view that ‘[p]eople should be expected to control
their behaviour—even when provoked’ and that retention of the defence of provocation
‘also sends a message that the homicide victim is somehow to blame for their own death’
while the male defendant’s ‘violent loss of self-control [was] partly excusable’ (2004:
56). In agreement with key feminist commentators that the partial defence of provocation
was ‘beyond redemption’ (Howe, 2002: 43), the VLRC recommended that it should be
abolished (VLRC, 2004: xlv) and concluded that ‘[d]ifferences in degrees of culpability
for intentional killing should be dealt with at the sentencing stage’ (2004: 4).
The partial defence of provocation has also been abolished or modified in a number of
other jurisdictions. It was first abolished in the Australian state of Tasmania in 2003
(Criminal Code Amendment (Abolition of the Defence of Provocation) Act 2003 (Tas))
and was subsequently abolished in Western Australia in 2008 (Criminal Law Amend-
ment (Homicide) Act 2008 (WA)). In 2007, the New Zealand Law Reform Commission
(NZLRC) recommended abolition of provocation and changes to the law on self-
defence. The NZLRC also recommended that priority should be given to the develop-
ment of sentencing guidelines to ensure ‘full and fair account’ is given to provocation
mitigation at sentencing (2007: paras 2.04 and 2.08). Provocation was abolished by the
Crimes (Provocation (Repeal)) Amendment Act 2009 (NZ), but none of the other rec-
ommendations were acted upon. As Wake has observed, the result is that self-defence
law in New Zealand remains manifestly inadequate internationally in the way it responds
when victims of family violence kill their abusers (2015: 165). The Coroners and Justice
Act 2009 (UK) abolished the partial defence of provocation and introduced a new partial
defence of ‘loss of control’ applicable to England, Wales and Northern Ireland. Con-
tained within sections 54 and 55 of the Act and retaining a key element of the old partial
defence, the ‘qualifying trigger’, the partial defence of loss of control includes the
stipulation that ‘the fact that a thing said or done constituted sexual infidelity is to be
disregarded’ (section 55(6)(c)). Section 54(3) of the Act provides that the qualifying
trigger for loss of control can be a ‘fear of serious violence’ from the victim to the
132
Social & Legal Studies 26(2)
defendant or another identified person. Alternatively, section 54(4) provides that the
qualifying trigger can be ‘a thing or things done or said (or both) which – (a) constituted
circumstances of an extremely grave character, and (b) caused D to have a justifiable
sense of being seriously wronged’. (For overviews of recent debates...
To continue reading
Request your trial