Australia’s Victorian Law Reform Commission recently released a report analyzing various defenses against homicide and suggesting a number of alternative proposals. One of the defenses the group looked at is the provocation defense, which it criticized for being largely available only to men.
The provocation defense or something like it exists in most Western legal systems and usually acts to reduce the severity of a murder charge if the accused was presented with a situation that provoked the murder. The most common such provocation is when a man or woman kills after finding his or her partner committing an act of sexual infidelity.
So, for example, when Clara Harris was charged with killing her husband after catching him with another woman, jurors had the option to convict her of manslaughter or criminally negligent homicide. Jurors did convict her of murder, but also found that the murder was motivated by a “sudden passion” — i.e. anger at finding her husband in a hotel with another woman — and as a result she received more lenient sentence than a straight ahead murder conviction would have garnered.
The Victorian Law Reform Commission’s main complaints against such a defense is that a) women who are allegedly victims of domestic violence tend to kill their husbands in rather cold-blooded manners, such as waiting until their asleep and shooting or bludgeoning them to death and b) that the provocation defense is sometimes pushed to very bizarre lengths.
On the first point, Law Reform Commissioner Marcia Neave told The Age,
One of the problems is that provocation allows for the hot-blooded killing, whereas women who kill in response to a long period of battering find that defense hard, because they often wait until the guy is asleep.
Of course it is difficult to conceive of a situation where a man or woman sleeping by themselves can be very provocative.
On the other hand, defendants in Victoria apparently try to push the defense as far as possible. The Age reporter mentions a case where a man tried to appeal his conviction for bludgeoning and stabbing his girlfriend to death by claiming she provoked him by insulting him and other members of his families.
One of the recommendations of the Law Reform Commission is to simply eliminate the provocation defense altogether, especially since the defense was added at a time when a murder conviction could lead to the death penalty (which is no longer the case). Certainly it should not be so pliable as to let people minimize murders committed for simple insults or disagreements.
Sources:
Reform call for laws on women who kill. Ian Munro, The Age, September 22, 2003.
Defences to Homicide: Options Paper. Victorian Law Reform Commission, September 2003.