Provocation and Narratives of Victim Blaming

18 / 10 / 2012

The Victorian Women’s Trust has an active interest in homicide defences, campaigning for Heather Osland and lobbying for law reform more broadly. In this piece, Monash University’s Dr Danielle Tyson looks at the history of the defence of provocation and its use around Australia. She also points to her recently published book Sex, Culpability and the Defence of Provocation (Routledge). We thank Danielle for her important and timely contribution to this debate.

 

The partial defence of provocation is one of the most controversial doctrines within criminal law. It has long been said to operate as a classic masculine apology for male violence against women and other men.

Criticisms of provocation have long focused on the place of the victim in the evolving court narrative. Because the victim is dead and silent, unable to tell her or his own story, this gap can only be filled by other people’s words and stories. As Professor Jenny Morgan put it: ‘dead women tell no tales, tales are told about them’.

Since its inception in the 16th and 17th century, judges and juries alike have listened to defence narratives that draw on insidious myths and steroetypes about the murderous rage of the cuckolded man who kills his ‘nagging’, ‘taunting’, ‘unfaithful’ or departing wife or girlfrield who is said to have ‘provoked’ her own demise. By placing the focus on the victim’s behaviour, men’s claims of provocation capitalise on popular cultural narratives that blame women for inciting male violence, and immunise men from responsibility for their behaviour.

The failure of the partial provocation defence to take account of the different circumstances in which women defendants have killed an abusive partner has lead to claims that it is gender-biased. While cases involving women defendants who kill in response to a past history of domestic violence from a husband or male partner are statistically rarer, such women have traditionally struggled to have their stories and experiences recognised as deserving of ‘compassion’ in quite the same way.

In response, law reform commissions throughout Australia have been given the task of reviewing the defences to homicide to better take account of the social context in which domestic homicides occur. The terms of referencs of the reviews undertaken in Victoria, Western Australia and Queensland were grounded in substantive equality principles, to curtail the range of situations in which men who have killed an intimate partner out of anger, jealousy, a need for control or a breakdown in the relationship; or who have killed another man in response to a non-violent sexual advance, are able to avail themselves of a full or partial defence to mitigate culpability.

In 2003, Tasmania was the first Australian state to abolish the partial defence of provocation. It was abolished in Victoria in 2005, Western Australia in 2008, and in New Zealand in 2009. In these jurisdictions, provocation is to be considered along with other multiple aggravating or mitigating factors that a court must take into account when deciding an appropropriate and proportionate sentence. The demise of provocation was contemplated in Queensland in 2007. The debate was constrained by the Queenland Government’s intention to not make any changes to the existing penalty of mandatory life imprisonment for murder. Consequently, the partial defence was significantly revised in order to reduce the problematic ways it had traditionally operated. The changes enacted to the law of homicide in Queensland included placing the burden of proof on the defendant, rather than the prosecution, to prove on the balance of probabilities that provocation occurred. The changes also restricted the range of circumstances in which the partial defence may be raised, so that it will no longer apply where “the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character”. Nor will it apply in cases where sexual infidelity is alleged or in the context of a relationship breakdown. The provocation defence is still available in New South Wales the Australian Capital Territory, The Northern Territory and South Australia. In 2004, NSW and the ACT enacted legislative provisions to restrict its use in cases where the accused claims to have killed another person in response to a non-violent sexual advance.

 

In June 2012, the New South Wales Legislative Council established a Select Committee to conduct an inquiry in the operation of the partial defence of provocation. The review is in response to public criticism by the victim’s family and crime victim advocates following a Supreme Court jury’s decision to find a Sydney man, Chamanjot Singh, guilty of the manslaughter of his wife, Manpreet Kaur. The jury accepted the defendant had been provoked to kill his wife after he formed a belief that she was being unfaithful and said she wanted to leave him. He claimed that this caused him to lose self-control and slit her throat with a box cutter.

In August and September 2012, the NSW Select Committee held three days of public hearings and heard arguments from a range of legal academics, those working in the domestic violence sector, lawyers and family members of those who have been killed. Some argued strongly for the abolition of provocation, arguing that it could more appropriately be taken into account along with other mitigating and aggravating factors that a court considers when sentencing the defendant.

Others were of the view that it be retained. One of the main reasons for retaining provocation is that it provides an abused woman who kills out of fear and self-preservation with a safety-net if they are unable to rely on the complete defence of self-defence. If you take away provocation and don’t have alternative defences or offences such as diminished responsibility or the partial defence of excessive self-defence (or in the case of Victoria, defensive homicide), then these women may lose a defence and risk being unfairly convicted of murder. Alternatively, as has been the case in Victoria, these women may end up being encouraged to plead guilty to defensive homicide. One option open to the Committee is to reduce the scope of the defence along the lines of what Queensland has done, which could potentially reduce the risk of similar unintended outcomes.

Since the removal of provocation in Victoria, critics have been concerned that provocation-type arguments, including the stereotypical narrative of a woman ‘asking for it’, will persist in the courtroom drama, particularly at the sentencing stage of the legal process.

While murder convictions of men who have killed their intimate female partners are becoming more common in Victoria since the abolition of provocation as a defence in 2005, it would appear that the stereotypical narrative of a woman ‘asking for it’ is difficult to dislodge. There have been six Victorian intimate-partner homicide cases since then in which provocation was to some extent accepted by the judges as a basis for the killings. Two have been particularly controversial – the case of Anthony Sherna in November 2009 and Luke John Middendorp in May 2010, both of whom pleaded not guilty to murder and were found guilty of the lesser crime of manslaughter by an unlawful and dangerous act and defensive homicide respectively.

The issue of men claiming defensive homicide – an offence introduced in Victoria in 2005 as a safety-net for women who killed in response to sustained domestic violence and abuse – has been one of the most controversial and yet expected outcomes of banning the use of provocation as a defence.

Since 2005, 20 men have successfully claimed defensive homicide after killing other men in what are provocation-type situations. Of the five cases involving women who killed in response to family violence, three of these women have been convicted of the offence, one after a trial and two after a guilty plea. Because of the way the new provisions are still able to capitalise on pre-existing stereotypes, it is not necessarily the case that the 2005 Victorian amendments have produced a more just law of homicide for these women.

My new book analyses how the sterotypical narrative of a woman ‘asking for it’ operates in court [recently published by Dr Danielle Tyson in the Department of Crimninology from Monash University]. Sex, Culpability and the Defence of Provocation (Routledge 2013) looks at how historic and culturally specific notions about the inherent subversiveness of women’s words and behaviour to incite male violence have become ingrained in law.  The book examines the law as essentially a storytelling enterprise arguing that while we no longer see or read about the nagging woman per se, nor refer to women as ‘shrews’ or ‘scolds’ anymore, the defence narrative continues to draw on these stereotypes to shift part of the blame from the accused to the deceased.

The book discusses how defence narratives also draw on key plots, such as the ‘romance-gone-wrong’, the ‘love-hate relationship’ and the ‘love-triangle’, to solicit empathy from judges and juries.

Now that provocation is gone, it is time to tell a different story. This is to be achieved by bringing the woman’s voice back into the courtroom drama. If we are to put an end to the injustice of provocation’s victim-blaming narratives we need to see more prosecuting counsel and judges actively resisting these damaging court narratives.

Like any author of a text, Judges are narrators. It would appear that since the abolition of provocation in Victoria in 2005, very few judges have taken up the challenge of resisting provocation’s victim-blaming narratives.

An exception can be found in the remarks of Justice Betty King, who in September this year sentenced Marin Neacsu, a 58 year old man, who pleaded guilty to murder for the fatal stabbing of his wife’s new male partner, Mr Coca, to 17 years and six months in jail.

According to the report provided by a forensic psychiatrist at the plea hearing, Neascu was not only ‘likely to have been suffering from a diagnosable depressive disorder’, he described his act of killing the deceased as a ‘crime of passion’. He said: ‘That he had been cuckolded was finally, definitively confirmed to him and he was further inflamed by what he perceived to be the aggressivity exhibited by the deceased.’ Having reminded the defendant that ‘women are not chattels, they are not something that is owned by any man’, Justice King said to him:

“Your wife was entitled to leave you. You may not have liked that, but she had the right to do so. She did not have to tell you where she was going, or if she was pursuing a relationship with another man. You had no right to know this, you had no right to control what she did and, equally, you had no right to kill the man with whom she had formed a relationship because of your anger at being, as it was described, ‘cuckolded’. … Our society has moved forward and does not excuse any person on the basis of the crime being a ‘crime of passion’.”

Justice Betty King’s counter-narrative is one that reframes the age old story of murder as a ‘crime of passion’ by resituating it within the context of separation and tells the story of a woman who was exercising her autonomy and right to leave a relationship. Imagine if this was the dominant narrative typically mobilised in cases of domestic homicide?

In early 2012 Dr Danielle Tyson (Monash University) and Dr Debbie Kirkwood (Domestic Violence Resource Centre Victoria) were awarded $20,000 in research funds by the Victorian Women’s Trust to undertake research on domestic homicide. The project began early this year, and will run until early 2013. The project, Blood on Whose Hands II, builds on the groundbreaking work of the 1994 publication by the Women’s Coalition Against Family Violence of the same name – Blood on Whose Hands: The Killing of Women and Children in Victoria (also funded by the VWT). The aim of the project is to examine the 2005 reforms to homicide laws in Victoria to determine whether they have improved the legal system’s response to homicides that occur in the context of domestic violence.

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