Defences to Homicide Project - Essay Example

The Victorian Law Reform Commission was established under the Victorian Law Reform Commission Act 2000 as the central agency for developing law reform in Victoria. The Commission was engaged in developing the Defences to Homicide project which looked at the history of homicide laws and defences and explained the defences of self-defence, provocation, mental impairment, automatism, diminished responsibility, infanticide, duress, necessity and marital coercion. The Final report was given to the Attorney-General on 6 October 2004. One of the recommendations in the report regarded the abolition of the partial defense of provocation. From my point of view, the reason for considering abolishing the defence of provocation is the fact that the laws in regard to defence of provocation are usually used for excusing or condoning male aggression towards women. Under the present law factors that reduce a person's blameworthiness for an intentional killing may be taken into account in one of three ways. In some situations where people intentionally kill another person they may be charged with and convicted of an offence which attracts a lower sentence than murder (for example, manslaughter). In this case they will not be 'labelled' as a 'murderer'. In other situations they may not be guilty of any offence (as where they killed in self-defence) or they may be convicted of the lesser offence of manslaughter because they have a partial defence (as where they successfully argue they killed as the result of provocation). However, different legal systems take account of levels of blameworthiness in different ways. When law reform bodies have reviewed defences and partial defences to homicide, they have frequently reached different conclusions on how factors which affect the culpability of the accused should be taken into account by the criminal law. While there is no 'right' approach to these complex moral and legal issues, there is a need for greater consistency in how issues of culpability are dealt with in the Victorian criminal law. Earlier in England anyone charged with murder was considered to have acted out of malice. Murder was a serious offence, and the penalty for any murder was death. To reflect that not all murders are the same and that not all cases warrant the death penalty, the distinction of manslaughter emerged. This allowed the courts to take into account certain human frailties. One such frailty involved the idea that the accused had been provoked into committing the act, because the victim had said or done something that caused the offender to loose control--as was deemed to be the case in the instance of a "chance medley." For the provocation defence to be invoked, the nature of the provocation had to fall into one of four categories: (1) grossly insulting assault; (2) attack upon a relative or a friend; (3) unlawful imprisonment or restraint of an Englishman; or (4) a man coming upon his wife engaged in adultery. In order to benefit from the defence, the accused had to prove that, during his response to the provocation, he was sufficiently deprived of self-control and had acted without malice. Historically, the criminal law system has justified and condoned male violence against women. It allowed a man to use "reasonable" force to ensure the respect and obedience of his spouse; it immunized husbands from prosecution for rape of their wives; it did not sanction the rape of "bad girls;" and it ignored most forms of child abuse. Our law did not even recognize the existence of sexual harassment until the mid-eighties, and the use of professional and religious power to sexually exploit subordinates has only recently been acknowledged and condemned by our justice system. More specifically, special evidentiary and substantive rules were developed for cases of wife-assault. Indeed, a woman cannot be compelled to testify against her husband, even in a case where he is accused of assault against her. This principle of "marital unity" historically "privatized" her complaint and forced her to bear the onus of any criminal proceeding in the matter. A husband found guilty of assault would benefit from a more lenient sentence if the victim of the crime was his wife. Wives had been forbidden to file civil suits against their husbands for damages for many years. Even today, women who decide to file a police complaint against their husbands face a criminal law system that often re-victimizes them and cannot ensure their basic security and freedom. Provocation also raises important questions about the symbolic function of the law and the proper role of defences and partial defences. The Commission believes that the symbolic role of the criminal law justifies abolition of the partial defence of provocation. The partial defence of provocation sends the message that in some situations people (who are not at risk of being killed or seriously injured themselves) are not expected to control their impulses to kill or seriously injure another person. While extreme anger may partly explain a person's actions, in the Commission's view it does not mean such behavior should be partly excused. As provocation is not a partial defence to any other offence, it results in a person who loses self-control and killes the person who provoked him or her being partially excused, while the same actions resulting in, for example, a minor assault, do not provide a partial excuse. From a common sense perspective, most people would find it easier to understand how someone might, in an emotional state, hit another person because they did something to upset them, rather than how an ordinary person, even faced with the gravest provocations, might intentionally kill. Provocation is an anomaly in the law. Historically, an angry response to a provocation might have been excusable, but in the 21st century, the Victorian community has a right to expect people will control their behavior, even when angry or emotionally upset - particularly when the consequences are as serious as homicide. The continued recognition of provocation as a separate partial excuse for murder, in my view, is therefore both unnecessary and inappropriate. To the degree of circumstances of the killing may decrease a person's level of moral culpability, this can be adequately taken into account, as it is for all other offences, in sentencing. While provocation sometimes provides a partial defence for women who have killed in the context of prior violence, I believe the costs of its retention outweigh any potential advantages. Where women kill out of fear for their lives, the Commission believes the more appropriate defence is self-defence. The reason for it is the fact that the Commission finds the continued reliance on provocation by violent men who kill their intimate partners particularly objectionable. The implication is that the women are somehow responsible for their own death, and men's violent loss of self-control partly excusable. In my view the Victorian community should no longer tolerate such a position. One of the disadvantages (and the Commission also concerns about it) that the abolition of provocation could lead to harsher sentences for 'deserving' cases of provocation (such as, for example, people who kill out of anger after being subjected to sexual or physical abuse). In my view, this outcome can be avoided by judges making use of the full range of sentencing options for murder. The abolition of the defence might initially cause some uncertainty about appropriate sentences for offenders who might previously have received a manslaughter verdict on the basis of provocation. Over time, sentencing practices for murder will change to take account of the situations in which people kill in the effect of provocation. Though I guess as well as many experts that it's not a sufficient reason for retaining a defence I would like to point out the main arguments put forward for the retention of provocation. They include: "provoked killers are not murders"; "juries should decide questions of culpability"; "by allowing the accused to be convinced of manslaughter, provocation provides an important 'halfway' defence"; "abolishing provocation would lead to increased sentences and uncertainty" and "abolishing provocation would increase community dissatisfaction with sentencing". Retaining a partial defence of provocation also sends a message that the homicide victim may have somehow contributed to, or must bear some of the blame for, his or her death. This can be deeply upsetting for friends and families of homicide victims. The Federation Community Legal Centres' Violence Against Women and Children Working Group argued: "Leaving an intimate relationship, pursuing another sexual relationship or verbally criticizing your partner, should never be seen as actions which constitute provocation to kill. The implication of such claims are that women, by simply pursuing their right to personal autonomy and safety, are provoking their own deaths and that the men who kill them should be excused for doing soThe courts' acceptance of such provocation arguments compounds and reinforces men's control of women in our society and gender inequality. The reality is that most men who kill women do so after a history of violence and abuse against their partner that precipitated her attempting to leave the relationship. Those who argue against this approach pointed to the extreme difficulties of defining, with any degree of certainty, the circumstances in which provocation should be excluded. It was felt the exclusion of certain circumstances from the scope of the defence might be applying an overly simplistic view of the range of factors which might be relevant in any particular case. For instance, there are very few cases in which the provocation will be simply that the person says he or she is leaving. The context is critical. The law touching this area should remain flexible in order to deal with the infinite variety of circumstances in which the defence might arise. Express circumscription or limitation of the defence may lead to miscarriages of justice. Unforeseen circumstances meriting reliance upon the defence might be omitted from legislation imposing limits. It is preferable to leave the common law to deal with new circumstances. The overwhelming majority of submissions and those conducted who were in favor of retaining provocation argued in favor of reform. However, a small minority continued arguing that the reform was unnecessary. This is because the common law would develop in time to ensure cases in which provocation should not be accepted as a satisfactory basis for reducing an offender's culpability, such as where the provocation was based on an accused's racism, sexism or homophobia, would either be removed from or rejected by a jury as a sufficient basis for defence. I hold the opinion, any provocation could not ever be enough to justify reducing the criminal consequences to the intentional killing of another human being. I am not persuaded by arguments that provocation is a necessary concession to human frailty or that provoked killers are not murderers. Both the serious nature of the harm suffered by the victim, and the fact the person intended to kill or seriously injure the victim in my view justifies a murder conviction. Victoria also has a flexible sentencing regime for murder which allows all factors potentially affecting a person's level of blameworthiness, including personal circumstances and background, the circumstances of the offence, and the vulnerability of the victim, to be balanced in setting the appropriate penalty. I agree that as a result of the abolition of the defence of provocation sentences for those who kill in response to provocation will increase, as they will be convicted of murder rather than manslaughter. But perhaps it will make them think over before acting because murder carries a maximum penalty of life imprisonment, while manslaughter carries a maximum penalty of 20 years. If a key recommendation from the Victorian Law Reform Commission's Defences to Homicide Final Report (the abolition of provocation) is accepted people on trial for murder will no longer be able to use provocation as a partial defence. An accused killer will no longer be able to argue he or she was provoked to kill and have the level of responsibility reduced from to manslaughter. Attorney General Rob Hulls announced that he reffered defences to homicide to the Commission because he considered the laws of provocation and self defence had not altered over the years to keep pace with a changing society 1. I am quite sure that the law of provocation must no longer have a place in a modern civilized society REFERENCE LIST 1. Victorian Law Reform Commission, Final Report Commission, August 2004 http://www.lawreform.vic.gov.au/CA256902000FE154/Lookup/Homicide_Final_Report/$file/FinalReport.pdf 2. National Association of the Women and Law, NAWL's Brief on Defence of Provocation, April '00 http://www.nawl.ca/provocation.htm#Abolishing 3. http://canada.justice.gc.ca/en/cons/rccd/partie1p1.html http://www.nawl.ca/provocation.htm#Abolishing http://www.lawreform.vic.gov.au/CA256902000FE154/Lookup/Homicide_Final_Report/$file/FinalReport.pdf Read More