Provocation Defence in a Modern Legal System - Essay Example

Name: Tutor: Course: Date: The provocation defence has no place in a modern legal system and should be abolished Introduction Criminal law plays a significant role in responding to issues related to intimate violence. However, there is continued critique, led by feminist experts, to reform criminal law and make it more equitable for women. Increasingly, questions are raised as to the validity of such a defence used by accused men who cause harm to their intimates. Contemporary critics draw attention to the injustice incurred by the battered women involved in such killings1. Provocation can be defined as the partial defence to murder where if considered by the jury leads to conviction for manslaughter rather than the exact act of murder. Defence of provocation operates in the sense that the accused had the intention to kill and willfully acted to cause death. Therefore, he is excused for losing self-control as a consequence of the victim’s conduct2. In this scenario, provocation is a defence developed historically as a result of the need to establish circumstances under which the accused should be less morally blamed for the actions he committed. It should be noted that legal charges could only be considered in cases where the accused was not provoked. The provocation of defence law is relevant to women in relationships, who are battered by their spouses. Considering the background operation of provocation as a controversial defence to the act of murder, it has become quite obvious this section of the law has fueled global debate on gender issues. The underlying questions remain whether or not the law has any place in modern legal systems? If not, should it be abolished? This study provides an argumentative analysis of how provocation defence operates, and provides justifications for its abolishment in the modern legal system particularly in Australian law. General understanding of the defence of provocation in Australia In Tasmania, the defence of provocation has been abolished; however, in various jurisdictions it is still considered as a partial defence that is used to reduce incidences of murder to manslaughter. For example, New South Wales (NSW) under Crimes Act 1900 (NSW) is still making a parliamentary inquiry into the provocation of defence law and the abolition of the law has been raised with regards to gender issues3. Based on the normal response situations, the weakness of provocation defence concerns how to explain the true conducts of the defendants. However, the law requires that the response provided by the defendants must be really stemmed from the loss of self-control. It could be argued that in a normal response situation, the best way to evaluate the defendant’s conduct is to determine how sufficient the provocation can lead a normal person to loose self-control and involve in a murderous intent. Therefore, the moral evaluation of the response provided by the defendant creates an acceptable and predictable backdrop which requires the judges to determine whether a normal person is justified in losing self-control4. Evidently, the legislative abrogation of the defendant’s conduct largely diminishes the moral aspects of the provocation defence. It is notable that the legislation of NSW has totally removed the moral significance of the reaction provided by the defendant to provocation5. Research indicates that in 2003, Tasmania abolished the operation of partial defence of provocation and due to the outrage against the Ramage case and the continued release of the 2004 report on defences to homicide of the Victorian Law Reform Commission, Victoria also disregarded the law6. The judges in Victoria have played a critical role of gate-keeping in the attempt to prevent the defence of provocation being extended to the jury in situations where the accused killed his alienated partner. In such cases, judges considered the major policy problems associated with allowing the partial defence to the act of murder in the context of intimate homicides. Therefore, it was held that no reasonable jury could be satisfied beyond reasonable doubt that the reaction of the accuser to the victim’s conduct was below the minimum limits required of powers of self-control that could be related to the ordinary person7. The Victorian Law Reform Commission (VLRC) argued that the continued use of provocation as a partial defence to incidents of killings committed due to anger cannot be morally accepted in modern jurisdictions. With regards to contemporary community standards, it can be noted that a high level of discipline is required among people to control their anger regardless of whether they have been provoked or not8. Therefore, it is relevant to reject arguments made in support of provocation as an appropriate compromise to human frailty. Taking into account the severity of the loss of life, and the occurrence of the defendant’s intention to end his or her partner’s life, it could be argued that the murder conviction should be warranted for an individual who opts to kill due to provocation. The VLRC discovered gender bias in the manner in which partial defence of provocation has been interpreted and used, in particular to close relationships involving homicide9. Generally, a male’s claim of provocation arises as a result of acts of unfaithfulness or the suggestion of a lack of sexual prowess. On the contrary, these allegations indicated that men were simply stimulated by jealousy, and thus had the intent to take full control over women. It is important to point out that such homicides could occur at the time the partner thought it was necessary to exercise her right to quit the relationship. The VLRC emphasized the need to address gender bias as a significant factor in its recommendation to abolish provocation as a partial defence10. It is quite clear that majority of the women who claimed for provocations on the basis of close sexual relationships were largely subjected to incidents of violence by their male partners11. The Australian Model Criminal Code Officers Committee (AMCCOC) supported the abolition of the defence of provocation. The committee based its argument on the idea that evidence of provocation should be considered in sentencing. It can be pointed out that the main concern of the committee was that the principle of provocation largely provides excuses for male anger and promotes violence against women. Although the factors that lead to murder may as well be considered in the mitigation of sentence, the major problem with providing an explanation for the violent conduct particularly at the sentencing stage would still require judges to carefully investigate the condition under which the killing was committed. Since it is quite clear that murder remains the perturbed charge within the context of Australian crimes in which the burden of proof seems to be strict, it could be argued that accepting defence of provocation instead of abolishing it would cause a moral maze in the future. It cannot be doubted that men who may have the intention to claim that they are provoked, could as well claim self-defence for full rather than partial defence. This provides the view that if self-defence and the substantial impairment cannot be claimed, then also defence of provocation cannot be substantiated.12 It is relevant to argue that provocation is a clear representation of the manner in which the law offers white heterosexual men the privilege to dominate others. This encourages such penetrators to evade murder charges particularly in situations that underpin their dominance, for example, men causing death to their female spouses for cheating on them or simply belittling men’s sexual prowess. Therefore, defence of provocation should be abolished to discourage such acts of social injustice against women and white men ending the lives of men of color for allegedly considering being dangerous. Although defence of provocation has been totally abolished in certain Australian states such as Victoria, Tasmania, NSW and Western Australia, other public defenders such as Mark Ierace concluded that the defence is still valid in contemporary society. Ierace argued that abolishing the defence law would mean creating gross injustices in particular where the battered women or men cause death to the abuser due to a long period of domestic violence. However, Ierace suggested that it could be appropriate to abolish provocation based on sexual infidelity, jealousy as well as non-violent sexual advances13. This implies that defence of provocation should not be entirely rejected if the impact would be viewed as gross injustice. A concern has also been raised concerning the abolition of provocation as a defence based on the argument that it would hinder access to avenues of defence for those women who are caught to have killed their male partners after their long period of domestic violence14. In this regard, it could be argued that defence of provocation would be salient in cases where defence or total self-defence has not been extended to women who decide to kill their abusive spouses. Generally, there is need to work towards reforming the scope of provocation defence so as to provide a more workable objective of the law rather than rejecting it entirely. Feminist Activists and Defence of Provocation The abolition of defence of provocation has been supported by a specific group of feminist activists and academics. For example, the National Feminists Organizations, National Consultations on the Violence against Women proposed by the Department of Justice as well as Representatives of the Front-line Ant-violence Services are the popularly known feminist movements in Australia. In addition, academics have concluded that defence for provocation cannot be redeemed, and thus should be abolished15. According to Jeremy Horder, the principle of provocation cannot be compromised in the broader context of gender politics. Horder posed a challenge to the public to determine whether the principle of provocation based on the cover of alleged protection for human infirmity really reinforces the circumstances under which men are considered and claim themselves as being natural aggressors in relation to women aggressors16. It could be argued that the answer to the above challenging question is definitely ‘yes’ because the application of provocation defence is basically dominated by male partners who use violence to secure their women’s unconditional and attentive acceptance that is mistakenly regarded as natural or appropriate. Based on the male-centered perspective, therefore, it should be noted that the rejection of intentional killing as murder to manslaughter would work to protect human infirmity17. It is relevant to mention that defence for provocation ought to be abolished because it encourages personal retaliation. From the feminist perception of the defence for provocation, it cannot be doubted that it violates the rule of law. Evidently, bias exists within the male-dominated judiciary that seeks to protect or favor the male accused. Based on the women’s protection point view, it can be noted that continuing to accept the defence of provocation shows that the public is vulnerable to subjective whims of unreasonable and unpredictable men. These men base their violations on unnecessary legal rights to claim for partial excuses that subject the public to sexual abuses for their own personal as well as self-interested interpretations of situations. Defence for provocation should be regarded as a partial legalization of personal violence that creates a threat to the globally protected constitutions which promote security and liberty interests. Furthermore, the defence law creates a climate of insecurity and terror that proves to be unfavorable to the achievement of complete equality for women18. Conclusion Based on the above discussion on the sexual defence for provocation, it is relevant to conclude that anger is the dominant emotion particularly in provocation cases that involve male defendants. It can also be noted that women are more perceived as targets rather than the instigators of violence. It cannot be doubted that battered women have a tendency of reacting to any physical provocation in form of fear and anger. However, the ability to determine how the provocation causes a normal person to lose self-control and show murderous intent should be fundamental to the evaluation of the defendant’s conduct. Based on the feminist activists’ reaction on the defence for provocation, it is relevant to point out that the defence for provocation is a great violation of the rule of law. It is quite clear that bias exists in the use of provocation defence where the male-dominated judiciary protects or prioritizes the male accused over the battered female. Such a male-oriented judiciary condones intentional killing or murder in favor of manslaughter in order to protect male infirmity. The act of murder is the main charge in the context of Australian crimes Act where the burden of proof is extremely restricted. Works Cited Bernadette, McSherry & Brown, Naylor. Critical Perspectives in Australian Criminal Laws. (2004), p.517. Crimes (Homicide) Act 2005 (Vic) Crimes (Sentencing Procedures Act) 1999 (NSW) Crimes Act 1900 (NSW) Heather, Douglas. The failure of the Provocation Defence and the collapse of the Equality Concept, Reconsidering the Equality Projects in Law: Feminist Challenges, Ed. Hart Publishing, (2008), 41-58. Jeremy, Horder, Provocation and Responsibility (1992). Lenny, Roth. The doctrine of Defence Provocation and Self-Defence in Intimate relationships as well as Homophic Homicides. Parliament of New South Wales. 2009. Ierace, Mark. Should the provocation defence be abolished? Discussion on whether provocation has a place within the contemporary courts in Australia and ways of effectively dealing with the common murky cases that involve murder and manslaughter? Retrieved January 22 2013 from, Manning, Fiona. The Self-Defence and Defence for Provocation: The implications for battered women who involve in the act of killing and for the homosexual victims', Consultation Paper No. 33/96, 1996. Morgan, Jenny. Determining who kills who and why: Considering beyond the legal categories, VLRC. Melbourne. 2002. NSW Judicial Commission. The Research Monograph 28 on the Partial Defences to Murder in NSW, 1990-2004. Tyson, Danielle. The Victoria's new homicide law: Why more women are asking for Provocative reforms? Current Issues within the Criminal Justice, 23(2), (2011), 203-233. Victorian Law Reform Commission (VLRC). Defences to Homicide: Final Report. VLRC. Melbourne. 2004. Read More