Defending Provocation

Associate Professor Julia Tolmie calls for the defence of provocation to be reformed, not abolished. She first provides a good summary of problems with the current law and concludes:

There is something wrong with us, as a society, trying to discourage domestic and homophobic violence on the one hand, while using a criminal defence to excuse people who embark on its most horrible forms.

Her preferred response:

The problem here is that emotional and sexual rejection, as well as sexual advances, even indecent assaults, are not extreme circumstances. They are common human experiences and, although emotionally painful, ordinary people do not respond to them with murder.

So does this mean that we should we get rid of the provocation defence? I would argue, to the contrary, that we should first simplify it so it is easier to apply and automatically exclude it from being left to the jury in these kinds of cases. Only if such reform proves impossible should we get rid of it.

This could help, but I suspect defendants will simply pick an excuse justification of provocation that is not excluded, and claim this happened to them. As the victim is dead, it will come down again to trusting the liver killer over the dead victim.

The defence of provocation reduces a murder conviction to manslaughter. There are cases where a person has killed in response to circumstances that are so horrible that most people would not want to label the person a “murderer” and would not want them to serve life imprisonment (still the presumptive sentence for murder).

It is worth noting a Judge can give a lesser sentence than life now, and my preference is that where there really was legitimate provocation, the Judge uses discretion at sentencing. I’m not so sure a label is that important.

For example, in Australia a woman survived 20 years of what can only be described as torture at the hands of her husband, to finally learn he had regularly raped their daughters since they were 6 years old. She snapped in response and was allowed to argue the defence of provocation.

Interestingly it is not revealed if she was successful, but I think most would agree a preferable response would be to get him arrested.

Would we want Sophie Elliott’s mother, if she had attacked Clayton Weatherston when she opened her daughter’s bedroom door to find him stabbing her lifeless body, to be labelled a murderer and receive life imprisonment?

In this circumstance she would almost beyond doubt be able to argue self defence as he was still armed.