tag:theconversation.com,2011:/fr/topics/defence-of-provocation-3407/articlesDefence of provocation – The Conversation2015-06-02T10:10:10Ztag:theconversation.com,2011:article/420252015-06-02T10:10:10Z2015-06-02T10:10:10ZFive years after the end of provocation, jealous male killers still receive leniency<figure><img src="https://images.theconversation.com/files/83545/original/image-20150601-6967-1o8y6op.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Is justice being done?</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/ronmacphotos/8013465002/">Ronnie Macdonald</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>In the UK, men can no longer claim they were provoked by jealousy into killing their partner.</p>
<p>Our research published recently in the <a href="http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=9695914&fulltextType=RA&fileId=S0008197315000318">Cambridge Law Journal</a> revealed the extent to which that change, enacted in 2010, has altered the way the English courts have responded to murder motivated by sexual infidelity. The answer is not as much as we might have hoped.</p>
<p>As a defence to murder, provocation had long caused controversy in the English courts. On one hand, the defence largely failed to accommodate the desperate experiences of women who have killed a long-term abusive male partner. On the other, the defence too readily accommodated the contexts within which jealous and controlling men killed women who were leaving them or had committed infidelity.</p>
<p>The replacement of the provocation defence with a new partial defence of loss of control signalled an effort to ensure the law was able to better address the gendered contexts that surround a large number of homicides.</p>
<h2>Loss of control</h2>
<p>The new partial defence of loss of control retains some features of the old provocation defence, while also bringing in new provisions. One provision limits the defence reducing murder to manslaughter in cases where someone loses control when they find evidence of what the law now calls “sexual infidelity”. At the time the reforms were introduced, the <a href="http://webarchive.nationalarchives.gov.uk/20100505212400/http:/www.justice.gov.uk/consultations/docs/murder-review-response.pdf">Ministry of Justice stated</a>:</p>
<blockquote>
<p>The government does not accept that sexual infidelity should ever provide the basis for a partial defence to murder.</p>
</blockquote>
<p>In practice, this means that in cases when words or conduct constituting sexual infidelity trigger the defendant’s loss of self-control in killing the victim, a jury is to disregard this evidence in deciding whether the conduct amounted to murder or manslaughter.</p>
<h2>The Clinton case</h2>
<p>One of the first cases to test the boundaries of the sexual infidelity provision was that of <a href="http://www.thelawpages.com/court-cases/Jon-Jaques-Clinton-6882-1.law">Jon Jacques Clinton</a>. Clinton killed his wife in November 2010 after she allegedly admitted to having sex with multiple men and sniggered at the prospect of Clinton committing suicide as a result of their relationship breakdown. </p>
<p>Clinton had previously discovered messages on his wife’s Facebook profile containing sexual innuendos and discovered that her personal status was listed on Facebook as “separated”. It was these images, her listed status as well as her alleged admissions of sexual infidelity that Clinton argued led to his loss of self-control and use of lethal violence.</p>
<p>Clinton was convicted of murder as the trial judge determined that, given the new requirement to exclude evidence of sexual infidelity as a basis for a plea of loss of control, there was no other evidence to justify leaving the partial defence for the jury to consider. </p>
<p>On appeal, however, the <a href="http://www.bbc.co.uk/news/uk-england-berkshire-16595756">Court of Appeal held</a> that the provision does not wholly exclude evidence of sexual infidelity as irrelevant, where a defendant raises a plea of loss of control. The court stated that where sexual infidelity evidence is one part of a wider and more complex “provocation narrative”, the defendant can still raise a plea of loss of control. It will be where evidence of sexual infidelity is the sole basis for a plea of loss of self-control that the partial defence must fail. </p>
<p>The decision in Clinton has since raised concerns as to the ongoing likelihood of “jealous man” defences continuing to have credence in English law. </p>
<h2>Sentencing</h2>
<p>Beyond Clinton, the reforms also failed to significantly change the way English courts sentence jealous men who kill. Given the abolition of provocation, it was anticipated that such cases <em>should</em> fall into the category of murder. However, no guidance was provided on the extent to which evidence related to sexual infidelity should be influential in sentencing. </p>
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<span class="caption">Justice has gender.</span>
<span class="attribution"><span class="source">From www.shutterstock.com</span></span>
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<p>Our analysis of relevant murder cases since 2003 reveals that the English higher courts have regarded the change in law purely as a technical one, relevant only to the pre-conviction trial phase. Judges have not viewed the change in law as demanding a shift in moral thinking at sentencing.</p>
<p>Indeed, contrary to the spirit of the 2010 reforms, English judges have continued to view sexual infidelity evidence as having the potential to constitute grave provocation and justify a significantly lower term of imprisonment. </p>
<p>For example, in the <a href="http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=9695914&fileId=S0008197315000318">2011 case</a> of Haywood, the defendant began a relationship with “W”, after his wife died. After they had bought a house together, W took a lover and later another lover, following which she informed the defendant that she was going to move in with her second lover. The defendant armed himself with an iron bar, attempted to disguise himself and fatally attacked W’s new partner. </p>
<p>Despite the 2010 reforms, on <a href="http://www.bbc.co.uk/news/magazine-29612916">appeal</a> the court stated that the case involved “the greatest possible provocation in the non-technical sense”. The defendant’s sentence was reduced to a minimum term of nine years. </p>
<p>This case, and others sentenced since the 2010 reforms, suggest that the courts have failed to incorporate the gender perspective of the 2010 reforms into sentencing practices. </p>
<h2>Where to next?</h2>
<p>Our research reveals that combating leniency in the law’s response for murders triggered by sexual infidelity is a task not yet achieved. </p>
<p>While the 2010 reforms have made some gains in improving the law’s response to the different contexts within which men and women kill, further review and reform is needed to ensure that the leniency previously afforded at the conviction stage is not merely transferred to sentencing.</p><img src="https://counter.theconversation.com/content/42025/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Men are still getting away with blaming jealousy for killing women.Kate Fitz-Gibbon, Lecturer in Criminology, Deakin UniversityJeremy Horder, Professor of Criminal Law, London School of Economics, London School of Economics and Political ScienceLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/405842015-05-05T04:57:48Z2015-05-05T04:57:48ZQueensland still failing to act on a medieval murder defence<p>The Queensland Labor government plans to re-introduce amendments to abolish the “gay panic defence”, under which defendants could argue that unwanted homosexual advances provoked them to kill.</p>
<p>The move has been <a href="http://thenewdaily.com.au/news/2015/04/17/australias-worst-law-repealed-finally/?utm_source=SilverpopMailing&utm_medium=email&utm_campaign=20150417%20The%20New%20Daily%20-%20Not%20dynamic%20%281%29&utm_content=&spMailingID=22493586&spUserID=MTAyODk0Mjg0NTE4S0&spJobID=541662082&spReportId=NTQxNjYyMDgyS0">widely praised</a> as a welcome statement that homophobic attitudes will not be tolerated as a defence to violent crime.</p>
<p>But while attempts to abolish gay panic defence are positive, they represent a missed opportunity to address a broader problem in Queensland law – that “provocation” in more general terms can be used to reduce a murder charge to manslaughter.</p>
<p>The legal defence of provocation has been completely abolished in Tasmania, Victoria, Western Australia and New Zealand. It’s time for Queensland to follow suit.</p>
<h2>Old origins of the “provocation” defence</h2>
<p>Gay panic is not a defence in itself. It is one argument that can be used to raise the defence of “provocation”. </p>
<p>Provocation is a partial defence that reduces a charge of murder to a conviction for manslaughter. It applies where the defendant has intentionally or recklessly killed another person, but the jury accepts that they were provoked and lost self-control, and that the provocation was serious enough that an ordinary person could have lost control and killed in that situation. </p>
<p>The “loss of self-control” is not literal. If a person suffers an extreme physical or psychological blow they can literally lose total control. If this happens, they are acting as an automaton and their actions are not voluntary and can’t attract criminal liability. The loss of control in provocation refers to a state where self-control would have been difficult, but not impossible.</p>
<p>“Provocation” arose in the Middle Ages when it was considered cowardly for a man to ignore an insult to his masculinity, whether delivered through words or conduct such as adultery with his wife. If a man killed in such a situation, he was viewed as blameworthy but not deserving of the mandatory death sentence for murder. </p>
<p>There are no set categories of “provocative conduct”, but allegations of homosexual advance, and jealousy and rejection in heterosexual intimate relationships, are the most common provocation defences.</p>
<p>Provocation has been subject to controversy in contemporary Australia, and attracted much attention from law reform bodies across the country, including in <a href="http://www.lrc.justice.wa.gov.au/P/project_97.aspx">Western Australia</a>, <a href="http://www.lawreform.vic.gov.au/sites/default/files/FinalReport.pdf">Victoria</a>, <a href="http://www.parliament.nsw.gov.au/provocationcommittee">New South Wales</a>, <a href="http://www.qlrc.qld.gov.au/accidentprovocation/docs/wp63.pdf">Queensland</a> and the <a href="http://www.nt.gov.au/justice/policycoord/documents/lawmake/Self%20Defence.pdf">Northern Territory</a>, as well as by <a href="http://www.academia.edu/3539674/Provocation_The_Good_the_Bad_and_the_Ugly">academics</a> and in the media.</p>
<p>Law reform has frequently resulted from public outrage at cases where male offenders have successfully argued provocation, but the community felt that a murder conviction was appropriate. The initial horror at the shocking crimes was compounded by legal arguments blaming the victims, at least partly, for their violent deaths. </p>
<p>The controversial cases include situations of homosexual advance, as well as killings of current and former female partners. In the latter instance, there have been too many cases to list, including Melbourne businessman James Stuart Ramage, who killed his estranged wife Julie in 2003 (<a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2004/508.html?stem=0&synonyms=0&query=ramage">R v Ramage</a>); Peter Keogh’s fatal stabbing of his ex-partner, Vicki Cleary, in 1987 (R v Keogh in Victoria); R v Singh in NSW; and <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QCA/2007/426.html?stem=0&synonyms=0&query=SEBO">R v Sebo</a> in Queensland. </p>
<h2>Piecemeal reform</h2>
<p>The reactive nature of the law reform efforts has left the law piecemeal and patchy, with significant variations across the country.</p>
<p>Provocation has already been abolished in Tasmania, Victoria, Western Australia and New Zealand.</p>
<p>In the Northern Territory and the Australian Capital Territory, the defence has been modified so that a non-violent sexual advance cannot, without other factors, constitute provocation. </p>
<p>In New South Wales, non-violent sexual advance cannot provide a basis for provocation, and any other provocation must be “extreme”.</p>
<p>In Queensland, ending or changing a relationship cannot constitute provocation, and if the current proposals succeed then homosexual advance will not be able to either.</p>
<p>Provocation has not been modified at all in South Australia, although the Supreme Court indicated in <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/sa/SASC/2010/111.html?stem=0&synonyms=0&query=Hajistassi">R v Hajistassi</a> that homosexual advance or relationship disputes were unlikely to succeed. Homosexual advance was unsuccessfully raised in <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/sa/SASCFC/2014/56.html?stem=0&synonyms=0&query=Lindsay">R v Lindsay</a> last year, but the High Court recently heard an appeal against conviction for murder and judgement is pending. </p>
<h2>Homosexual advance defence</h2>
<p>The High Court case of <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1997/50.html?stem=0&synonyms=0&query=r%20V%20gREEN">Green v R</a> has been heavily criticised for allowing the “gay panic” or homosexual advance defence. </p>
<p>However, the commentary consistently – and wrongly – suggests that a simple proposition by one man to another can underpin the provocation defence. In Green v R, the victim sneaked into bed with the defendant and touched his genitals, causing the defendant to re-live the trauma of childhood sexual abuse by a male. A similar heterosexual situation would likely also have succeeded.</p>
<p>The 2010 <a href="https://jade.barnet.com.au/Jade.html#!a=outline&id=207300">murder of Wayne Ruks</a> has been similarly condemned, and has led to the proposed reform in Queensland.</p>
<p>However, this case has also been consistently incorrectly reported. Homosexual advance was indeed raised in the case, and verdicts of manslaughter were indeed returned. However, there was no causal connection between the two. The convictions for manslaughter were reached on the basis that both accused lacked the intent to kill or cause serious harm, rather than that their intention to kill was mitigated by gay panic. </p>
<p>These two cases are frequently cited as the reason why the gay panic defence must be abolished. However, the misrepresentation of the cases overstates the impact that gay panic arguments have had on the law and deflects attention from the real problem – that victims in various situations can be blamed for provoking their own deaths.</p>
<h2>Full responsibility</h2>
<p>It is a definite advance in the law to see the abolition of the gay panic defence. However, there is no principled basis for restricting a person from having a partial defence of provocation in some circumstances and not in others.</p>
<p>A person who intentionally or recklessly kills, unless they are acting in self-defence, should be convicted of murder – regardless of who provoked them.</p>
<p>Anyone who kills in a state of rage should bear full responsibility for their actions rather than being able to blame the actions or, more commonly, the words, of the person they killed.</p>
<p>The problem here is not the gay panic defence. It’s the broader defence of “provocation”.</p><img src="https://counter.theconversation.com/content/40584/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kellie Toole does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Queensland government wants to abolish the “gay panic defence”, but it’s yet to act on the bigger legal problem: “provocation”, which is also used to defend murders in heterosexual relationships.Kellie Toole, Lecturer in Law, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/283052014-06-26T07:41:10Z2014-06-26T07:41:10ZVictorian homicide law reforms ensure just responses to violence<figure><img src="https://images.theconversation.com/files/52318/original/crchtbws-1403757190.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Reforming Victorian homicide law has been a long process, but a bill introduced today is a significant step forward.</span> <span class="attribution"><span class="source">AAP/Dave Hunt</span></span></figcaption></figure><p>Victorian attorney-general Robert Clark today introduced a <a href="http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/PubPDocs.nsf/ee665e366dcb6cb0ca256da400837f6b/67ad9d52d5130f10ca257d02000b8171!OpenDocument">bill</a> into parliament that repeals the offence of defensive homicide. The bill signifies a significant step forward in ensuring just responses to lethal violence in the state’s criminal court system. </p>
<p>While reforming homicide law has been a long process, the bill introduced today is a significant step forward for Victoria.</p>
<p>Defensive homicide was introduced in Victoria in late 2005 as part of a wider package of homicide law reforms, including the abolition of the heavily discredited partial <a href="https://theconversation.com/legal-loophole-protecting-violent-men-why-the-defence-of-provocation-needs-to-change-7957">defence of provocation</a>. Its introduction was largely based on the need to offer a “halfway” homicide category for persons who kill in response to prolonged family violence. </p>
<p>However, since 2005, the dominant use of the offence by men, who have brutally killed in the context of a one-off violent confrontation – often involving alcohol and/or the use of a weapon – has represented a significant departure from the original intentions of the offence. </p>
<p>That the offence has been predominately used in cases of male-on-male violence is in itself unsurprising, given that the majority of homicides in Victoria are <a href="https://assets.justice.vic.gov.au/justice/resources/f9d7181e-5bef-47b6-814b-183eeb8d8be5/defensivehomicideconsultationpaper2013.pdf">committed by men</a>. However, this disjunct between the theoretical need for defensive homicide and the cases in which it is successfully raised has prompted two government reviews, scholarly debate and significant community disquiet. </p>
<p>While ultimately the unintended operation of the offence remains at the heart of the need for its abolition, the repeal of defensive homicide will have multiple benefits. Firstly, it will ensure a more accurate labelling of intentional lethal violence while still retaining a discretionary approach to sentencing for murder that rightly allows for recognition of differences in the culpabilities of individual offenders. </p>
<p>Abolition of defensive homicide will also address concerns surrounding complexities and confusion in Victorian homicide law. This is an essential outcome given that it is often the jury that is tasked with discerning these laws. </p>
<p>While the abolition of defensive homicide has been the focal part of the reforms, there are several other changes in the bill worthy of attention. The bill introduces new jury directions to ensure that family violence is better explained and understood within the courts; changes self-defence laws to reduce current complexities; and reforms the use of evidence in criminal trials, which seeks to directly address the victim-blaming narratives that have permeated for far too long. </p>
<p>In this respect, the reforms strike an important balance between ensuring that persons who commit an intentional act of lethal violence are convicted of murder while also introducing reforms to protect victims of family violence and to better support the jury in homicide trials. </p>
<p>The reforms are undoubtedly timely. Over the last year, the Victorian community has strongly felt the dire impact of family violence and have rightly demanded an improvement in justice system responses to victims. This bill responds to that call. </p>
<p>In particular, the aim of the new family violence jury directions, alongside revisions and simplification of self-defence law, is to open up this complete defence to those that have previously struggled to access it. Their struggles may have been due to limitations in community and legal understandings of what constitutes family violence and “reasonable” responses to it. </p>
<p>As Clark explained in parliament:</p>
<blockquote>
<p>These jury directions will provide greater context for assessing claims of self-defence and assist to ensure that jurors in relevant cases have a better understanding of the dynamics of family violence. They will also assist to educate the community and legal profession about family violence. These reforms are an important measure for providing support to victims of family violence.</p>
</blockquote>
<p>Consequently, while some family violence advocates and scholars have expressed concern as to what effect the abolition of defensive homicide will have on persons who kill in the context of family violence, the intention of the reforms is certainly not to provide a “tough on crime” response to this vulnerable category of offender. Rather, it is to improve the way in which their experiences of violence are understood within the framework of the law. </p>
<p>Another key feature of the bill is its desire to address improper evidence about homicide victims in contested trials. To do this, the bill introduces evidence reforms that allow for the exclusion of evidence that would “unnecessarily demean the deceased”. </p>
<p>Legal narratives that act to blame the deceased victim in homicide cases have continued to plague the Victorian criminal courts despite the abolition of the partial defence of provocation. This illustrates that reforming legal categories in itself may be insufficient in overcoming this problematic trend in Victorian criminal courts.</p>
<p>Protections against victim-blaming evidence serve an important purpose. It positions Victoria as the first Australian jurisdiction to illustrate such a commitment to ensure the just treatment of homicide victims throughout the court process. In commending the bill to parliament, Clark explained:</p>
<blockquote>
<p>This reform is designed to reduce unjustifiable attacks on the character and reputation of the deceased during homicide proceedings. Victim-blaming has been a significant problem in the past, and can cause significant distress and trauma for the victim’s family and friends.</p>
</blockquote>
<p>This will undoubtedly be a welcomed change for the families of homicide victims who for too long in contested trials have had to endure the blackening of their deceased loved ones character, without the obvious opportunity to counter any such evidence.</p>
<p>These are important reforms. The bill should be commended and implemented without hesitation. </p><img src="https://counter.theconversation.com/content/28305/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kate Fitz-Gibbon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Victorian attorney-general Robert Clark today introduced a bill into parliament that repeals the offence of defensive homicide. The bill signifies a significant step forward in ensuring just responses…Kate Fitz-Gibbon, Lecturer in Criminology, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/119582013-04-24T01:29:05Z2013-04-24T01:29:05ZNSW parliamentary inquiry recommends partial reform to provocation law<figure><img src="https://images.theconversation.com/files/22811/original/y4rj2567-1366762886.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A NSW parliamentary inquiry has recommended the introduction of a ‘partial defence of gross provocation’ in legal trials involving lethal violent acts.</span> <span class="attribution"><span class="source">AAP/Angela Brkic</span></span></figcaption></figure><p>Yesterday, the NSW parliamentary <a href="http://www.parliament.nsw.gov.au/provocationcommittee">Select Committee on the Partial Defence of Provocation</a> released its final report. The <a href="http://www.parliament.nsw.gov.au/Prod/parlment/committee.nsf/0/61173c421853420aca257b5500838b2e/$FILE/Partial%20defence%20of%20provocation_Final%20report.pdf">report</a> contains a set of recommendations for reforming a defence that has long attracted criticism. </p>
<p>The committee’s final report shies away from closing the door on provocation completely. It recommends a model of reform that retains but restricts this controversial partial defence. </p>
<p>The report is the result of an inquiry that was formed last June in response to community outrage surrounding the trial and sentencing of <a href="http://www.smh.com.au/nsw/six-years-for-killing-sparks-call-for-law-review-20120607-1zz2r.html">Chamanjot Singh</a>, who was convicted for killing his wife, Manpreet Kaur. </p>
<p>Singh successfully argued at trial that he was provoked to kill his wife because of suspicions of infidelity, disparaging comments made about his mother by his wife and her sister’s husband, a belief the relationship was ending and that consequently he would be deported. He was convicted of manslaughter and sentenced to a minimum of six years imprisonment. </p>
<p>Over the course of the inquiry, the committee took submissions from 52 stakeholders, heard evidence given by 34 witnesses and received a further 32 supplementary submissions in response to an Options Paper. The resulting detailed and often conflicting views have been compiled into the comprehensive final report. </p>
<p>However, reforming the law of provocation in NSW was never going to be an easy task. It requires a delicate balance to be struck between protecting the interests of abused women who in exceptional cases rely on provocation where they are unable to raise a complete defence of self-defence whilst also protecting the law against jealous and controlling men who for decades have abused provocation as an avenue away from murder where they have killed in response to sexual infidelity or relationship separation. </p>
<p>The proposed “partial defence of gross provocation” recommended by the committee requires a defendant to have acted in response to “gross provocation” which caused them to have a “justifiable sense of being seriously wronged”. Within this, the focus of the restricted defence is on the nature of the provocative conduct as opposed to the defendant’s loss of self-control - an aspect of the defence that has been heavily critiqued in past reviews. </p>
<p>Perhaps most importantly, the new restricted defence expressly excludes the partial defence being raised in circumstances where the defendant incited a response to provide an excuse to respond with violence or where the defendant was responding to a non-violent sexual advance by the victim. The latter a welcomed inclusion for those who remember the injustice of the <a href="http://netk.net.au/Australia/Green.asp">1997 High Court decision on Malcolm Green</a>, who had his conviction for the murder of a male friend overturned when the High Court decided that provocation should have been left to the jury. The case prompted significant debate surrounding what is known as the “gay panic” defence.</p>
<p>However, where the committee’s recommendations expressly exclude these scenarios from ever giving rise to a successful partial defence of “gross provocation”, their response to the profoundly troubling use of the defence in cases of male perpetrated intimate homicide falls short. </p>
<p>In this respect, the committee has recommended that the defence should not be available in a series of further circumstances - including cases where the provocation was based on anything done by the deceased to end the relationship or change the nature of the relationship including disclosing infidelity, taunts about sexual inadequacy or discovering a partner “in the act”. However, for these circumstances a provision has been included to disallow these scenarios except in some “extreme and exceptional circumstances”. It is these four words that largely undermine the success of an otherwise well thought out and detailed package of recommendations.</p>
<p>As <a href="http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/3eab7febcfc75e03ca257aa60004fedf/$FILE/121004%20Mr%20Lloyd%20Babb%20SC%20Director%20of%20Public%20Prosecutions%20responses%20to%20Options%20paper.pdf">argued by Lloyd Babb</a>, the NSW Director of Public Prosecutions, not only does this provision add an extra “complexity” to an already complicated defence but the “gross provocation” model also “seems to retain the possibility that infidelity may in extreme and exceptional circumstances be provocation”.</p>
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<img alt="" src="https://images.theconversation.com/files/22812/original/j35rkqws-1366763422.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/22812/original/j35rkqws-1366763422.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=904&fit=crop&dpr=1 600w, https://images.theconversation.com/files/22812/original/j35rkqws-1366763422.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=904&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/22812/original/j35rkqws-1366763422.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=904&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/22812/original/j35rkqws-1366763422.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1136&fit=crop&dpr=1 754w, https://images.theconversation.com/files/22812/original/j35rkqws-1366763422.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1136&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/22812/original/j35rkqws-1366763422.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1136&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Media personality Phil Cleary has been a strong advocate for the abolition of provocation as a defence for intimate partner crime.</span>
<span class="attribution"><span class="source">AAP/Glenn Hunt</span></span>
</figcaption>
</figure>
<p>University of Sydney’s Graeme Coss, an advocate for abolition of provocation, <a href="http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/5317d29558d532b0ca257a5d000f0453/$FILE/0012%20Mr%20Graeme%20Coss.pdf">similarly warned the committee</a> of the dangers of providing a loophole arguing that: “Every time there is an out, that out will be embraced”. </p>
<p>This provision will undoubtedly be open to manipulation by legal counsel and unintended interpretation by the individual judge and jury. While it is hoped that it will be implemented with the principles and lessons of the committee’s review in mind, it would be naive to think that there will not be unexpected successful defences post-reform. </p>
<p>In this respect, unfortunately the committee has not heeded the warnings of other jurisdictions, where partial reform to the law of provocation has led to the defence continuing to be abused in unintended ways. This is most evident in the UK, where the 2012 trial and appeal of <a href="http://www.bbc.co.uk/news/uk-england-berkshire-19480076">Jon-Jacques Clinton</a> reignited the <a href="http://www.guardian.co.uk/commentisfree/2012/jan/23/infidelity-plus-defence-murder">“jealous man”</a> provocation defence in the English courts despite attempts at reform to expressly exclude it. </p>
<p>But for now only time will tell. First, it remains to be seen what the approach of the NSW government - who have until October 2013 to respond to the committee’s recommendations - will be. </p>
<p>If the new “partial defence of gross provocation” is implemented, only time will reveal in what unexpected ways it will be abused, upon which we will again be reminded that a partial defence of provocation has no place in 21st century criminal law. </p><img src="https://counter.theconversation.com/content/11958/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kate Fitz-Gibbon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Yesterday, the NSW parliamentary Select Committee on the Partial Defence of Provocation released its final report. The report contains a set of recommendations for reforming a defence that has long attracted…Kate Fitz-Gibbon, Lecturer in Criminology, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/91802012-09-05T20:35:18Z2012-09-05T20:35:18ZMurder or manslaughter? NSW ponders the provocation problem<figure><img src="https://images.theconversation.com/files/15038/original/47w5sc8x-1346742096.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Jane Ashton successfully campaigned for the provocation defence to be abolished in Victoria after James Ramage used the defence for killing her sister Julie.</span> <span class="attribution"><span class="source">AAP Image/ Brent Bignell</span></span></figcaption></figure><p>In Parliament last week, NSW took steps towards better understanding, and potentially solving, the problems posed by the partial defence of provocation. </p>
<p>A defence predominately used by men, provocation is seen by many to represent an outdated and illogical excuse for murder. However, for others, it represents a halfway defence for battered women who are unable to raise the often restrictive complete defence of self-defence.</p>
<p>Over two days of public hearings, a <a href="http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/70abc811fd998d77ca257a69000bb0a5/$FILE/Transcript%20-%20Tuesday%2028%20August%202012%20-%20UNCORRECTED%20PROOF%20final%20version.pdf">Select Committee on the Partial Defence of Provocation</a> sought opinions on the continued viability of provocation as a partial defence as well as possibilities for its reform. In examining these issues, the committee confronts a controversial area of the law that several other jurisdictions have sought to address in recent years. </p>
<p>In Victoria, Tasmania and Western Australia, provocation has been abolished. In Queensland, ACT and the Northern Territory a range of reforms have been introduced that restrict provocation to varying degrees.</p>
<h2>Provocation for men</h2>
<p>The NSW select committee was formed in June, following community outcry over the use of the provocation defence by Chamanjot Singh. Singh was able to successfully raise provocation after he slit his wife’s throat with a box cutter. </p>
<p>Singh argued that he had been provoked to kill his wife, Manpreet Kaur, because of suspicions of infidelity, disparaging comments made about his mother by the victim and her sister’s husband, and a belief that the relationship was ending and that he would be deported. Manpreet’s sister, Jaspreet Kaur, continues to question the integrity of a defence that arguably saw her dead sister put on trial. On Wednesday, she commented to the committee:</p>
<blockquote>
<p>He slit my sister’s throat eight times, you can’t say that is manslaughter … how come this case is a provocation case?</p>
</blockquote>
<p>This week the committee pondered this question and in doing so, heard from a range of stakeholders, including academics, domestic violence practitioners, lawyers and two family members of homicide victims. Understandably among such a range of witnesses, the views presented to the committee were divided between reforming but restricting the defence and abolishing it altogether.</p>
<p>Cases such as Singh’s, and the well known provocation injustices in the cases of <a href="http://www.smh.com.au/news/National/Provoked-wife-killer-gets-11-years/2004/12/09/1102182402208.html">James Ramage</a> and <a href="http://www.smh.com.au/nsw/provocation-is-a-taliban-excuse-20120828-24yvh.html">Peter Keogh</a>, who both killed their partners and successfully used the provocation defence, were central to evidence given by witnesses who favoured abolition. Critiquing its use in this context, Graeme Coss from Sydney University described provocation as “an abomination of a defence”.</p>
<p>Witnesses argued that provocation would be better dealt with at sentencing for murder where the label imposed would recognise the intent of the killing. In the Victorian Ramage case, for example, many argued that a verdict of murder would have better reflected the level of violence inflicted by James Ramage on his estranged wife, Julie. Ramage bashed and strangled Julie to death in response to a discussion in which she admitted to being a new relationship and allegedly taunted his sex prowess. He was the last man to successfully raise provocation in Victoria.</p>
<p>In NSW, if abolished, witnesses posed that the extent to which the provocative conduct should be considered mitigating could then be addressed in the length of sentence imposed.</p>
<h2>Provocation for women</h2>
<p>The plight of women who kill in response to prolonged family violence was also a focus throughout the two days of public hearings. </p>
<p>Several defence practitioners, domestic violence practitioners and Professor Julie Stubbs from the University of NSW warned of any reform that could have negative consequences for this vulnerable category of offender.</p>
<p>Chrissa Loukas, the defence counsel for Singh, reminded the committee that “provocation is not a male defence or a female defence, but a human defence” and consequently urged them to take caution, as she argued abolition “will make the situation worse for [battered] women”. </p>
<p>This view supported previous evidence given by Stubbs who drew from her research in comparable jurisdictions, such as New Zealand, to highlight that where provocation has been abolished consequently battered women have been convicted of murder where unable to fit within the confines of self-defence. </p>
<p>The committee members themselves appeared to be considering a range of options, including an exclusionary model of reform, reversing the onus of proof and implementing a social evidence framework. In particular, to nearly every witness over the two days, the Honourable David Clarke questioned if provocation could be limited to provocative conduct arising from serious criminal or violent conduct. </p>
<p>It was posited that this would capture the case of the battered women who is unable to raise self-defence, while simultaneously excluding the jealous male who kills his partner. Could this be the way forward for provocation in NSW?</p>
<p>In light of the range of opinions, recommendations and cautions, two things are clear.</p>
<p>Solving the infamous provocation problem in NSW is a task not easily achieved. And regardless of whether the committee decides to abolish, retain or reform the provocation defence, change is most certainly needed.</p><img src="https://counter.theconversation.com/content/9180/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kate Fitz-Gibbon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In Parliament last week, NSW took steps towards better understanding, and potentially solving, the problems posed by the partial defence of provocation. A defence predominately used by men, provocation…Kate Fitz-Gibbon, Lecturer in Criminology, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/83882012-08-23T23:36:14Z2012-08-23T23:36:14ZHomicides, homosexual advances and male honour: will NSW act on provocation law?<figure><img src="https://images.theconversation.com/files/14205/original/59ypfdvn-1344838681.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Queensland Attorney-General Jarrod Bleijie is resisting pressure to make changes to the state's provocation laws. </span> <span class="attribution"><span class="source">AAP/Dave Hunt</span></span></figcaption></figure><p>Murder is the most serious of all violent crimes, and needs a determined criminal justice response. If there are circumstances in which a killing might be seen as wholly or partly excusable, then this is of interest to all citizens - particularly if these circumstances weigh unevenly against a specific social group. </p>
<p>Provocation is a defence that signals reduced culpability for an intentional killing by replacing a murder conviction with one of manslaughter. Historically it differentiated killings worthy of the death penalty from less heinous killings committed “in the heat of passion” without premeditation. </p>
<p>This was linked to a tradition of male social honour, a breach of which tended to provoke an angry response. Behaviour seen by criminal courts in the past as an affront to male honour included insults arising from drunken fights or a wife’s adultery. Unfortunately, the latter situation is still seen by some, such as <a href="http://www.theaustralian.com.au/news/nation/infidelity-a-defence-for-murder-say-christians/story-e6frg6nf-1226448727922">Christian lobby group FamilyVoice Australia</a>, to be an acceptable defence to murder today. The perpetuation of such views is partly the reason why provocation has been subject to so much criticism and why some jurisdictions have abolished provocation.</p>
<p>An affront to male honour which in recent decades has been used to argue a case of provocation is the so-called “homosexual advance defence” (HAD), sometimes incorrectly referred to as the “gay panic” defence (which is actually a failed US version of the defence strategy). </p>
<p>Since the 1990s, gay and lesbian activists have expressed serious concerns about homicide cases in which an accused male killer or killers pleads provocation on the basis of an alleged unwanted sexual advance from the victim who was known or assumed to be homosexual. </p>
<p>The argument is that a man who is the subject of an unwanted sexual pass by another man finds this so provoking that he loses self-control and kills. According to the law, if an “ordinary” person could have reacted the way that the offender did by losing their self-control in the face of victim’s behaviour, then the charge of murder will be reduced to manslaughter. </p>
<p>This strategy relies on negative courtroom depictions of the homosexual victim. The logic is that the perpetrator is a “regular” masculine man or youth whose goodwill is pushed to the limit by being propositioned or even sexually touched by a homosexual “nuisance”. </p>
<p>The use of this defence strategy in the NSW case of <a href="http://netk.net.au/Australia/Green.asp">Green v The Queen</a> in the 1990s reached all the way to the most senior judges in the land. A majority ruling by the Australian High Court favourably viewed the accused killer’s appeal against a murder conviction and paved the way for his eventual securing of a much lighter sentence for manslaughter. </p>
<p>The Green case was subject to much criticism because the court allowed claims of a homosexual advance to substantiate a claim of provocation. In reaching this decision the majority of these judges did not take the opportunity to rule that no ordinary person could be provoked to kill by a non-violent sexual pass. In fact, several comments were made which suggested that such extreme violence may often be expected. </p>
<p>The High Court result in Green mobilised gay and lesbian lobbyists nationwide. It spurred an official <a href="http://www.lpclrd.lawlink.nsw.gov.au/lpclrd/lpclrd_publications/lpclrd_reports.html#criminal">Attorney-General’s Working Party Inquiry</a> in NSW which in 1998 recommended that a non-violent sexual advance should be barred from forming the basis of a provocation defence. Nothing came of those recommendations. </p>
<p>More general feminist opposition to provocation because of the way in which it has traditionally privileged male violence and not worked for females has to an extent been more successful and led to provocation being abolished in <a href="http://www.theage.com.au/news/National/Government-abolishes-provocation-defence/2005/01/20/1106110863452.html">Victoria</a>, <a href="http://timeline.awava.org.au/archives/509">Tasmania</a> and <a href="http://www.abc.net.au/stateline/wa/content/2006/s1644462.htm">Western Australia</a>. </p>
<p><a href="http://www.parliament.nsw.gov.au/Prod/parlment/publications.nsf/0/F2BA1BFEED2D87EECA257A4800001BD7">Other jurisdictions</a> have retained the defence of provocation but amended it with the aim of removing its more problematic aspects. For example, amendments in the ACT and Northern Territory bar the use of provocation on the basis of a non-violent sexual advance. Queensland also retains provocation but bars the defence of provocation in response to the ending or changing of a domestic relationship. Parallel to this reduction in the scope of provocation Queensland has also introduced a specific defence of <a href="https://theconversation.com/domestic-violence-how-the-law-treats-women-who-kill-a-violent-partner-6983">killing for preservation in an abusive domestic relationship</a>. </p>
<p>The result of these changes is that NSW and Queensland are the only jurisdictions that still retain provocation and have no legislative bar against provocation claims based on a sexual advance (in South Australia provocation is a common law defence and is not found in statute). Two <a href="http://www.onlineopinion.com.au/view.asp?article=13795">recent cases</a> in Queensland in which provocation was used successfully to reduce charges from murder to manslaughter have once again ignited concern about allowing the defence on the basis of sexual advance. </p>
<p>The ensuing campaign for change led to the creation of a working party in 2011 to examine the operation of the homosexual advance defence and a government pledge to amend the Queensland Criminal Code to, in the words of the <a href="http://news.ninemsn.com.au/national/8408650/qld-to-close-gay-panic-legal-loophole">former Attorney-General Paul Lucas</a>:</p>
<blockquote>
<p>make it crystal clear that someone making a pass at someone is not grounds for a partial defence and by no means an excuse for horribly violent acts. </p>
</blockquote>
<p>But a change in government means there is now no commitment for reform in Queensland, as stated by the <a href="http://www.thechronicle.com.au/story/2012/07/17/no-changes-gay-panic-bleijie/">current Attorney-General, Jarrod Bleijie</a>.</p>
<p>Meanwhile, things might be about to change in NSW. In the fifteen years since the Attorney-General’s Working Party recommended changes to the law, successive governments have reneged on their promises of reform or ignored this issue. Now, however, a <a href="http://www.parliament.nsw.gov.au/provocationcommittee?open&refnavid=CO3_1">select committee</a> has been established to inquire into provocation in NSW, and is currently accepting submissions.</p>
<p>This review was sparked by the case of <a href="http://www.smh.com.au/nsw/six-years-for-killing-sparks-call-for-law-review-20120607-1zz2r.html">Chamanjot Singh</a>, who was sentenced to six years imprisonment after being found guilty of manslaughter rather than murder of his wife on the basis that he had been provoked by verbal abuse. </p>
<p>It remains to be seen whether NSW will join Tasmania, Victoria and Western Australia in abolishing provocation outright, or whether it will make amendments to remove more controversial elements such as its use in HAD claims. </p>
<p>What sort of signals about male interaction and violence does the legal status of the homosexual advance defence send to men and boys? If the answer to this question suggests physical and even fatal violence as the acceptable response, rather than a simple declaration of non-interest, then we should consider why our society would not tolerate a similar violent reaction from women who are subjected to routine unwanted overtures from men. </p>
<p>The ongoing failure to scrap the homosexual advance defence and the partial excuse it provides to certain forms of male violence is an embarrassment and an injustice for the citizens of Queensland and NSW. </p>
<p>The politicians of NSW now have the chance to change this and we should all hope they do not fail a second time. </p><img src="https://counter.theconversation.com/content/8388/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Murder is the most serious of all violent crimes, and needs a determined criminal justice response. If there are circumstances in which a killing might be seen as wholly or partly excusable, then this…Thomas Crofts, Associate Professor, Sydney Law School, University of SydneyStephen Tomsen, Professor of Criminology, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/79572012-07-23T04:44:56Z2012-07-23T04:44:56ZLegal loophole protecting violent men: why the defence of provocation needs to change<figure><img src="https://images.theconversation.com/files/13076/original/52dm6n95-1342507973.jpg?ixlib=rb-1.1.0&rect=169%2C4%2C468%2C408&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The defence of provocation needs to be changed in NSW.</span> <span class="attribution"><span class="source">Flickr/璟</span></span></figcaption></figure><p>Earlier this year, <a href="http://www.smh.com.au/nsw/six-years-for-killing-sparks-call-for-law-review-20120607-1zz2r.html">Chamanjot Singh</a> was sentenced in the New South Wales Supreme Court to six years jail for slitting his wife’s throat with a box cutter. He was found guilty of manslaughter by provocation, not murder, having successfully argued that he was provoked to kill because he suspected his wife had been unfaithful and intended to leave the marriage.</p>
<p>In cases like Singh, the use of the partial defence of provocation serves to legitimise lethal domestic violence. This latest case has reinvigorated debate in NSW about the use of the provocation defence and prompted a <a href="http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/78B96853E8FC1F2DCA257A22001D0442">Parliamentary Inquiry</a>. </p>
<p>The successful use of the provocation defence in this context raises important questions –
should it remain as a partial defence to murder when arguably it trivialises the male perpetration of lethal violence against women?</p>
<h2>Lethal provocation</h2>
<p>Provocation acts as a partial defence to murder where a defendant successfully argues that they were provoked to use lethal violence. Whilst several Australian states have taken steps towards reforming provocation to limit its applicability, or in the case of Victoria, Tasmania and Western Australia to abolish provocation altogether – NSW has to date retained this controversial partial defence as an avenue away from a murder conviction.</p>
<p>Since 2005 in NSW, provocation has been successfully raised as a partial defence to murder in 17 cases. In four of these cases the victim was the current or estranged female partner of the male defendant. </p>
<p>Of these four cases, the recent sentencing of Chamanjot Singh and the <a href="http://www.northernstar.com.au/story/2008/10/08/de-factos-guilty-plea/">2008 sentencing of Bradley Stevens</a> most clearly illustrate the concerns traditionally associated with this defence.</p>
<p>Both men were convicted of killing their female intimate partners. Both men were provoked to kill by suspicions of infidelity, not by any form of physical provocation. In response to the alleged provocation, Singh slit his wife’s throat, whilst the extensive injuries inflicted upon Bradley Stevens’ wife suggest she died from internal bleeding resulting from blunt trauma. Both men avoided a murder conviction and were instead convicted of manslaughter by reason of provocation. </p>
<p>Surely, NSW does not need another successful case of provocation by a man convicted of an intimate partner homicide to recognise that its operation is no longer in line with community values and expectations of justice?</p>
<h2>Justifying abuse</h2>
<p>The Stevens case highlights the problems associated with provocation in cases of intimate homicide. Despite a significant history of violence perpetrated against his wife, Stevens’ defence was able to paint a portrait of her as an inadequate and unfaithful mother to counterbalance his own history of domestic violence and to ultimately justify killing her. </p>
<p>Steven’s justifications gained legal support through the Crown’s acceptance of a guilty plea to manslaughter by reason of provocation and the imposition of a maximum sentence of 8 years and 9 months imprisonment. In comparison to the average maximum sentence for murder in NSW in 2008 – which was 16.8 years – this sentence was extremely favourable for the defendant. </p>
<p>At the time, the Stevens case did not generate the same high level of publicity that has been attached to other injustices of the provocation defence – such as the <a href="http://www.theage.com.au/news/National/Honour-killing-in-the-suburbs/2004/11/05/1099547388469.html%E2%80%9D">2004 Victorian Julie Ramage case</a> and this year’s sentencing of Chamanjot Singh. But these cases, do validate the need for a Parliamentary Inquiry in NSW. In deciding on the future viability of provocation in NSW, the Inquiry will need to closely examine the problematic abuse of this defence by men who kill a female intimate partner. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/12991/original/xm9v4ws2-1342406038.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/12991/original/xm9v4ws2-1342406038.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/12991/original/xm9v4ws2-1342406038.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/12991/original/xm9v4ws2-1342406038.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/12991/original/xm9v4ws2-1342406038.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/12991/original/xm9v4ws2-1342406038.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/12991/original/xm9v4ws2-1342406038.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Julie Ramage’s sister Jane Ashton campaigned for the abolition of provocation after Ramage’s husband was sentenced to only 11 years for her murder.</span>
<span class="attribution"><span class="source">AAP Image/ Brent Bignell</span></span>
</figcaption>
</figure>
<p>Interviews conducted in 2010 with members of the NSW criminal justice system also support these concerns and further highlight why there is a pressing need for the inquiry to consider abolishing this controversial partial defence to murder. In interviews with members of the NSW Supreme Court Judiciary and Office of the Director of Public Prosecutions (DPP), participants described the operation of provocation as “problematic” and “certainly very worrying”. </p>
<p>The interviews also revealed support amongst members of the ODPP for the abolition of provocation. These participants believed that given the flexibility in sentencing for murder in NSW, as well as the need to recognise the intent in these cases, that moving provocation to sentencing would create a “much more sensible” system. </p>
<h2>Change needed now</h2>
<p>The June sentencing of Chamanjot Singh has reinvigorated the push to abolish provocation in NSW. The abolition of provocation as a partial defence to murder would ensure that homicides occurring with an intent to kill or cause really serious harm are accurately labelled as murder by the criminal justice system. </p>
<p>More importantly, it would ensure that an avenue of excuse that has been routinely abused by men who kill a female intimate partner is closed. The justice system should no longer be seen to legitimise the use of lethal domestic violence.</p><img src="https://counter.theconversation.com/content/7957/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kate Fitz-Gibbon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Earlier this year, Chamanjot Singh was sentenced in the New South Wales Supreme Court to six years jail for slitting his wife’s throat with a box cutter. He was found guilty of manslaughter by provocation…Kate Fitz-Gibbon, Lecturer in Criminology, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.