When "She asked for it" is a defence to murder.

There’s a law that allows men to murder their wives and serve minimal time in prison. Like five years.

It’s called the provocation defence and it’s based on the idea of women “asking for it.” It’s an excuse used by men who kill women (or in many cases gay men) because they supposedly ‘provoked’ by something they did or said (it can be used by women too but this is far more rare). Like the case of Peter Keogh. He killed his ex-partner Vicki by stabbing her at least a dozen times.

But when he faced a jury in the wake of his death, all 12 jurors accepted his excuse that she provoked him by swearing. Mr Keogh served just three years and 11 months in jail.

A few moths ago, we ran a post on Mamamia on the provocation defence after Channel 9’s 60 minutes ran an in-depth segment on the defence (which is banned in Tasmania, Victoria and Western Australia, and is one of the subjects being explored in a current NSW parliamentary inquiry into the law.)

The response was to the post was so  that we decided to look into it further. We spoke Dr Danielle Tyson from Monash University’s Department of Criminology. She’s recently written a book called Sex, Culpability and the Defence of Provocation.

MM: Can you explain what the provocation defence is?

DT: In those jurisdictions where it is still able to be raised, provocation is a partial defence that operates to reduce murder to manslaughter. It applies to situations where the accused ‘understandably’ loses self-control owing to the allegedly provocative words and/or behaviour of the deceased.

In order for a provocation plea to succeed, and the charge of murder reduced to manslaughter, the jury must be satisfied that an ‘ordinary’ person could have reacted the way that the defendant reacted by losing their self-control in response to the alleged provocation on the part of the deceased.

MM: Can women argue the provocation defence – or is it just men?

DT: It is mainly men who kill either women or men in the context of sexual jealousy who rely on provocation. In order to understand the way the partial defence of provocation is most often used, it makes sense to look at the homicide data. Domestic homicide is gendered in particular ways.

The consequent picture that emerges from research in Australia is that a vast proportion of all homicides involving men as offenders (where the victims are either women or men) take place in the context of sexual jealousy. So it is not surprising that it is predominantly used by men in this way.

While women can and do argue provocation, they do it in far less numbers than their male counterparts and traditionally have faced a number of difficulties successfully raising the defence. This is not surprising if we look at the homicide data. What this data tells us is that, unlike their male counterparts, when women kill they almost never kill their intimate partners for the same reasons.

MM: Seems like a very dated defence, how does it have a place in modern Australia?

DT: There are a number of reasons why many are of the view that the partial defence of provocation is outdated and no longer has a place in modern, civilised society. It has been long been said to operate as a profoundly sexed excuse for men who have killed their ‘nagging’, ‘taunting’, ‘unfaithful’ or departing wives to avoid a conviction for murder and be convicted of the lesser crime of manslaughter.

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 continue to struggle to have their experiences recognised as deserving of ‘compassion’ in quite the same way.

The provocation defence has also come in for considerable criticism in relation where it has been relied on in response to a non-violent sexual advance.

It is true that in its modern form, it developed to extend the right of a husband to defend his masculine honour against acts of challenge by a female partner. For this reason, many are of the view that it provides men with a classic masculinist apology for men’s violence towards women; that is, it operates to normalise male violence as a natural characteristic of masculinity, and to blame the woman victim where her performance is understood to have contravened or transgressed the norms of appropriate femininity.

Gradually, changes have been made to the requirements for provocation by the courts in response to the criticisms about the gendered nature of the defence. For instance, there has been a shift away from the strict requirement of the need for a specific triggering incident toward greater acceptance that it did not reflect the experiences of many battered women.

Courts have also been more willing to accept that the loss of self-control in relation to provocation could develop over time and include cumulative acts of provocation. Another shift has been away from anger as being the only legitimate kind of emotion assumed to underlie the defence towards greater acceptance of the idea that the underlying emotion experiences by battered women in particular was fear and/or panic.

MM: We’ve also heard of the idea of homosexual advance being used as part of the provocation defence. Can you expand on how that is used as a defence?

DT: It is not a specific defence in and of itself. Rather, it operates to either absolve the defendant from liability or to mitigate the defendant’s liability. So it refers to cases where a male defendant pleads provocation on the basis of an alleged unwanted sexual advance from the victim who was known or assumed to be homosexual. In order for a provocation plea to succeed, and the charge or murder reduced to manslaughter, the jury must be satisfied that an ‘ordinary’ person could have reacted the way that the defendant reacted by losing their self-control in response to the alleged non-violent sexual advance.

Those critical of this informal provocation defence have been concerned about how the defence narratives that are produced are predicated upon a negative depiction of the homosexual victim. The criticism is with the way such cases legitimise, produce and reproduce violence against homosexual men as a group in society.

MM: Looking at the jurors, how do you think it’s possible that they see murder as justified?  

DT: While murder is the most serious of violence crimes, as a society I think there are circumstances in which we might agree that a killing might be wholly or partially excusable. As a society we have always recognised that and it is important that we continue to recognise that. Particularly if these circumstances relate to a specific group within society. However, jurors have not necessarily seen murder as justified when committed by a battered woman, for example, although nowadays they are more likely too.

I think a lot depends on the way the story gets told by the accused and his/her lawyer in a murder trial. We all draw on myths and stereotypes to make sense of other people’s acts and behaviour. This is what essentially happens in court. The art of persuasion and storytelling is after all the art of being a good lawyer. Jurors (and I might add judges) are more likely to be more sympathetic to a defendant who kills in a fit of jealous rage because this idea fits with the classic romance narrative.

If we want to put an end to the injustice of provocation’s victim-blaming narratives, we need to see more prosecuting counsel and judges resisting these damaging court narratives. Now that provocation is gone, I argue that it is time to tell a different story. This is to be achieved by bringing the woman victim’s voice back into the courtroom. Otherwise, the idea of a woman ‘asking for it’ will still arise in murder trial.

MM: Is there are a concern that the provocation defence leads to violent offenders being back in society too soon?

DT:Yes, but this concern applies to any situation where a violent offender has had his culpability for murder reduced – violent offenders may be released back into society too soon when convicted of manslaughter on the ground of an unlawful and dangerous act or manslaughter by criminal negligence. But because our focus has been on cases where a violent offender has had his culpability reduced to manslaughter on the ground of provocation, we have tended to overlook these other cases.

I think the important point is that we need to have a range of different defences available that recognise different forms of killing and that are appropriately labelled to reflect different forms of criminal behaviour and levels of culpability.

The sentence should also be appropriate.

One reasons for retaining provocation 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, then these women may lose a defence and risk being unfairly convicted of murder.

Over to you. Should a person’s conviction be reduced from murder to manslaughter if they were ‘provoked’ into killing someone?