An outrageous defence challenged by many across the nation, with societal need for riddance – yet Queensland still holds on. – Investigates 1/2 of the Two Crazy Youths
“Dead women tell no tales; tales are told about them”
Provocation – a partial defence for murder, originating in the Medieval times, 400 years ago, acting as a concession for human frailty. Its primary source was to ensure that one guilty of killing ‘in the heat of passion’ would not face the, then mandatory death penalty. Indeed, it has become quite the mockery that in the modern, civilized society that Australia exists in today, that Queensland refuses to abolish the defence; no matter its incapability of reaching many agreed upon criterions of a ‘good’ law, including that of, it being relevant to society as its values and attitudes change, being equally available and applied to all, and it being certain and clear. The amendments of provocation may be a step in the right direction, but does is no way, create just outcomes. For justice to occur the defence must be ridded.
The Criminal Code, 1889, Section 304, Killing on Provocation originally read that, ‘When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.’ However, based on the 2008 Queensland Law Reform Commission Recommendations (QLRC), a Bill to wind back the partial defence of provocation reducing murder charges to manslaughter if the act occurred in a jealous fit of rage, was passed in March 2011. The amendment saw the original legislation being inapplicable ‘if the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character,’ nor could it be based upon a deceased’s choice about the relationship. The recommendations also saw the onus of proof being placed on the defendant rather than the prosecution, to prove that without reasonable doubt provocation occurred.
The changes made, were deemed to be good-enough by lawmakers. Yet the fact that many jurisdictions, including Tasmania in 2003, Victoria in 2005, Western Australian in 2008 and New Zealand in 2009, completely abolished the defence, outraged Queensland media, legal commentators and the general public, questioning why we hadn’t followed in their footsteps?
The first and perhaps the most important argument in the case against provocation is that it is an outdated defence and doesn’t reach the standard of being relevant to society as its values and attitudes change. This defence was created in the 16th-17th century in which the sociocultural norm was men fighting duals to preserve their honour, and the mandatory sentence for murder being death. Then it was considered cowardly for a man to simply ignore an insult to his masculinity, delivered through forms of word or conduct, such as allegations of homosexual advance, jealousy and rejection; therefore, if a man was to kill in such situation, he wasn’t to be considered blameworthy, and not deserving of the mandatory death sentence of murder. However, upon realizing that Queensland, and all jurisdiction following the Westminster origins of law have abolished the sentencing of death, it must be pointed out that provocation’s actual purpose has vanished. The values of the 16th and 17th centuries are also very different to the ones of our progressive nation, and Queensland needs to par with what is accepted when it comes to how to deal with pettish anger.
Certainly not murder.
Yet judges and juries in the 21st century still listen to myths and stereotypes about the murderous rage of the cuckolded men who kill their ‘taunting’, unfaithful or departing partners who is said to have ‘provoked’ her own demise. Although the 2011 amendment saw that provocation couldn’t be argued based on the deceased ‘changing the course of a relationship,’ in cases such as that in 1984 in which a man successfully argued provocation for shooting his partner after he found her cuddled up with a friend – fully clothed, would still under the amendments, be accepted in our courtrooms 32 years later. Queensland lawmakers must realize that provocation is completely ignoring the norm of society in the present, for today, provocation is irrelevant and stands in the way of what is most important – justice.
The law is expected to be equally applied and available to everyone, as well as protect the weak and vulnerable. Provocation has proven to be a failure when considering this expectation. In many instances the implementation of provocation has been branded gender or homophobe, based privilege killing. The concept of ‘loss of control’ comes up repeatedly in provocation cases, but the challenging nature of this concept is immediately evident in the anachronistic terminology of the Queensland Criminal Code, ‘kills…in the heat of passion…before there is time for the persons’ passion to cool. Thus, the insistence that control must be lost to argue provocation presents a highly gendered notion of what is and isn’t a reasonable response to a supposed provocation situation. This assures that women who kill in response to abuse who cannot, in most instances, take on their tormenter on the spur of the moment and more likely to wait to overpower their partner, not receive the same treatment from the defence as their male counterparts would. The gender-violence bias towards men is obvious when considering the case of Heather Osland, who was convicted of murdering her husband despite pleading provocation in relation to repeated counts of rape, constant assault, abuse and death threats against her and her children, for over thirteen years. Her son, however, was acquitted of all charges although he had allegedly struck the fatal blow. Her appeal too was rejected. The court believed that both provocation and self-defence to be irrelevant on the basis that the killing was premeditated for Osland had earlier dug the hole in which to bury her husband.
The homophobic nature of this defence is another aspect that outrages the Queensland society, contrasting it to the hate crime-excuses of the 1900s and before. Those opposed against the defence suggest that it is an obvious mean of protecting homophobes and that there shouldn’t be reasonable justification for allowing it. The question is raised then, of if it is possible for someone to be so overcome with panic from being ‘hit on’ that they lose such control that the result is death? However, a recent study found that these killing are more so due to pure homophobia rather than the more commonly claimed ‘hit on’ panic. It is hard to judge the legitimacy of losing control and beating someone to death because of homosexual advance, and not something that society accepts as reasonable, or excusable behaviour. The R v Meerdink and Pearce case saw two men who beat a man outside of a Gympie church, due to sexual advance, successfully argue provocation. Following the sentencing, Father Paul Kelly began a petition to eliminate the provocation defence from Queensland law, which gained international recognition and support from known personalities including British comedian Stephan Fry. It was raised in the controversial sentencing of R v Meerdink and Pearce, that the defence must be abolished “because it reinforces the notions of fear, revulsion or hostility are valid reaction to homosexual conduct.” When allowing such a defence to exist, it sends the message that reactions alike are acceptable, contradicting the views held by our modern society. Kirby J, also brought to light a major argument against this defence; indicating that the defence seemed to only apply to homosexual advances opposed to heterosexual, arguing that ‘if a woman had a non-violent sexual advance made against her, tried to use provocation as a defence for murder, the definition of provocation would be unreasonably extended.’ As said in David Donaldson’s ‘Provocation and Masculinity’ essay, “if every woman who was sexually harassed by a man killed him and then claimed provocation, half the men in Australia would be dead.” Provocation is the epitome of inequality and unavailability, brining injustice to courtrooms.
Many stakeholders have argued that the defence of provocation is too difficult for juries and people of the public – whom the law is created for, to comprehend. The test of the ‘ordinary person’, central to the provocation defence, is deeply problematic, as for each juror the ‘ordinary person’ is most likely someone they identify with and therefore sympathize with. The issue analyzed in ‘The Ordinary Person In Provocation Law,’ paper agreed that the test “…is not suitable even for a superficially homogenous society, and the more heterogeneous our society becomes, the more inappropriate the test is. Behaviour is influenced by age, sex, ethnic origin, climate and other living conditions, biorhythms, education, occupation and, above all, individual differences.” It is impossible to construct a model of a reasonable or ordinary Australian. McHugh J echoed in agreement stating that “the notion of an ordinary person is pure fiction.” It is often thought that the ordinary person is an ‘Anglo-Saxon male of Judeo-Christian background and of heterosexual orientation,’ again feeding into the gender and homophobe prejudice so common to the defence. This integral test of provocation promotes doubt, inefficiency and uncertainty, which all adds up to a compelling case for provocation being unjust.
For far too long the victim’s character has been destroyed, in the misogynistic tale of falsehood. For justice to occur provocation must be abolished, no amendment will be satisfactory. In accordance to the QLRC recommendations, Queensland should consider removing the mandatory life sentence for murder, instead allowing judges discretion, considering aggravating and mitigating factors, much like the majority of states in Australia. Another point made by the QLRC, was that provocation couldn’t be removed as it served as protection for battered women who killed their partners, urging the consideration of adding to the Criminal Code a defence that would protect women in the scenario. Queensland understood this recommendation, and added the ‘domestic killing defence’, to Section 304B Killing for preservation in an abusive domestic relationship, in 2010, insuring the safety net for women, that pro-provocation stakeholders argued upon previously.
The provocation defence fails to meet much of the criterion of what a ‘good law’ is, including that of it reaching societal acceptance, and changing as time moves forward, being equal and available to all citizens – especially when considering their gender and sexuality, and finally, being clear and certain, proving definite inefficiency and inappropriateness. Provocation must be abolished; it stands in the way of what is of utmost importance, when considering the law in Queensland and our nation- justice.