South Australia clings to provocation law “from the dark ages”

Image by Codi Ash

PROVOCATION
noun // an action or statement that is intended to make someone angry

Provocation is a murder defence: it's not a complete defence, but can be used to reduce the severity of a charge from murder to manslaughter—a charge used more generally to cover unintentional killings.

It relies on the argument that the defendant was provoked into homicide by the victim.

In practice, the defence can see victims blamed for their own deaths and having their character, sexuality and sexual activity questioned in court with no chance to speak for themselves.

HOMOPHOBIA

noun // a fear or dislike of gay people

The law of provocation is where the 'gay panic' defence to murder lives: the notion that a fear of real or perceived homosexual advances can provoke a person into killing.

The term 'gay panic' is not explicitly named as such within criminal legislation, but it's become part of the law through precedent cases.

South Australia is the last Australian state to hold onto gay panic. (16 years have passed since Tasmania became the first state to remove it.) 

WHITE + MALE + HETEROSEXUAL

Historically, provocation was used to lessen the criminal responsibility of men who believed their 'male honour and dignity' had been compromised.

This meant excusing events like jealous husbands killing their wives in response to actual or suspected sexual infidelities, or murder in the name of real or perceived homosexual advances.

The New Zealand Law Commission (NZLC) has noted that provocation arose from an era “when it was culturally acceptable to exercise physical violence in defence of one’s honour...also an era in which the law tended to perpetuate white, male, heterosexual, middle class, Christian values.”

New Zealand abolished provocation a decade ago (in 2009).

AN (EXTRA)ORDINARY PERSON

The modern day provocation defence relies on an 'ordinary person' test: for it to be used successfully, it needs to be determined that the words and actions of the victim would have caused any other 'ordinary person' in a similar position to temporarily lose self-control and commit a similar crime.

As the NZLC has pointed out, this rationale is flawed in that it "assumes that the ordinary person, faced with a severely grave provocation, will in consequence resort to homicidal violence, when in fact it is arguable that only the most extraordinary person does this."

Father Paul Kelly was the parish priest at St Mary's Church in Maryborough when Wayne Ruks' life was taken by Jason Pearce and Richard Meerdink; he has since moved to a parish in Brisbane. In the ensuing trial, gay panic was used in an attempt to have murder charges against Pearce and Meerdink downgraded to manslaughter. After following the trial via the media and becoming disturbed by what he saw as a "revolting" law that tapped into "deep-seated homophobia", Kelly started campaigning for the abolishment of provocation, creating a Change.org petition that amassed almost 300,000 signatures and drew international attention after Stephen Fry shared it on Twitter. In response, Queensland didn't abolish provocation completely: on March 21, 2017, the defence was instead amended to state that homosexual advances would no longer constitue provocation. 

Though much media attention was trained on Queensland during Kelly's campaigning and the trial of Pearce and Meerdink, Kelly's petition was addressed to not only Queensland government leaders, but South Australia's, too. Via email, he told me that as both then-Premier Jay Weatherill and current Premier Stephen Marshall (then Leader of the Opposition) had publicly stated their support for abolishing the defence during his campaigning in 2016, he did not deliver his petition to South Australian Parliament, but instead "took his [Weatherill's] word for it that they would abolish it as soon as possible." He added: "It would be great to get this issue solved."

PROMISE

verb // to tell someone that you will certainly do something

South Australia's Attorney General Vickie Chapman made repeal of gay panic and the provocation defence an election promise in February 2014. Ten months later, in Parliament, she said her party would "not be waiting around any longer" and would take action early in 2015.

In March 2019, while writing an early draft of this article, I wrote to the SA Attorney General’s office to ask why provocation still hadn't been abolished. A few weeks later, in April 2019, Chapman called a press conference and yet again, promised the defence of provocation would be scrapped.

While all other Australian states have theoretically struck out the gay panic defence, several (NSW, NT, QLD, WA, TAS) have retained provocation in altered forms.

DOMESTIC VIOLENCE

SA Government leaders have repeatedly tried to create questions about repealing provocation by citing negative impacts on domestic violence victims. Previous SA Premier Jay Weatherill raised this concern in 2017 in an interview with BuzzFeed, claiming provocation "is relied upon by women in domestic violence situations." In a June 4, 2018 media release, Chapman said victims of domestic violence should continue to have a partial defence of provocation open to them (though the statement appears to no longer be available on the SA Attorney General's website).

Yet external reports commissioned over several years by the SA Government itself directly contradict this narrative.

A 2018 government-commissioned report compiled by the South Australian Law Reform Commission (SALRC)—an independent, non-partisan, law reform body based at the Adelaide Law School—concluded that women generally find it harder to access provocation as a defence than men.

The SALRC report recommended the existing partial defence of excessive self-defence in South Australia, as well as a revised version of the complete defence of self-defence was better suited to "fairly and effectively cater to the particular context of homicides committed in the situation of family violence rather than seeking to manipulate and maintain the flawed defence of provocation for this purpose."

The report also referenced research from the NZLC done in the years after provocation was repealed in New Zealand in 2009: after a 2016 review of homicide, the NZLC "found no empirical evidence from [their] case review to conclude that repeal of provocation in New Zealand has in practice adversely affected the position of victims of family violence who kill their abusers."

“FROM THE DARK AGES”

In 2015, while explaining the background of provocation in SA Parliament, Chapman presented her own interpretation of what it meant: the gay panic defence applied only in situations involving nonviolent homosexual advances, she said, and "[didn't] apply" to unwanted sexual advances made to women, saying: "if it applied to every man who made an unwanted sexual advance towards a woman there would be a lot of dead men around, that's for sure."

She said in 2014 that the provocation defence was “left over from the dark ages of giving usually men an excuse for their behaviour which is a result of their uncontrolled temper.”

MISOGYNY

noun // feelings of hating women, or the belief that men are much better than women

Cases in which violence against women has been partially excused by provocation stretch back decades. In one 1986 case in Tasmania, a woman's "scornful laugh" was deemed enough to allow an appeal from the killer on the basis of provocation, based on the magistrate's argument that "the relationship was of such a kind that the accused might reasonably have expected fidelity from the deceased and evidence that suddenly finding his expectations dashed, he had insult added to that injury when her conduct was contemptuously thrown in his face...the insult her scornful laugh constituted in that context was in law capable of being regarded as sufficient to deprive an ordinary person of the power of self-control."

HONOUR

noun // a quality that combines respect, being proud, and honesty

Retaining provocation in modern law has meant the historical justifications for provocation have never been relegated to the past, and rather than serving as a legal protection for women, provocation has been used as justification for their killings.

In recent years there has been string of Australian cases in which men have successfully argued they were provoked into killing their female partners in order to maintain their 'honour’.

Research undertaken by Dr. Kate Fitz-Gibbon, a Senior Lecturer in Criminology at Monash University and author of the 2014 book Homicide Law Reform, Gender and the Provocation Defence, found that in the 10 year period immediately prior to the 2014 New South Wales reforms of provocation, of the 20 convictions of provocation on the basis of manslaughter, 7 involved a male perpetrator who killed a current or estranged female partner, and 3 cases involved a male perpetrator who killed a male who was in a sexual relationship with the defendant's current or former partner.  

In each of these cases, the homicide occurred in the context of relationship separation and/or actual or alleged sexual infidelity.

COMPLICITY

noun // involvement in a crime or some activity that is wrong

In the course of researching this article, Dr. Fitz-Gibbon told me historical justifications for the partial defence have remained present in its modern day operation, and that the law has acted to excuse instances of male-perpetrated violence. "In many instances across Australian states and territories it has operated to partially excuse the actions of violent men who have killed in response to a threat to their honour, when experiencing relationship separation or as a response to a non-violent homosexual advance. By allowing a partial defence to arise in such circumstances the criminal law has been complicit in providing an avenue away from murder and partially excusing the use of lethal violence."

Dr. Fitz-Gibbon said provocation shifts responsibility from the perpetrator to deceased victims. "By its very design the law of provocation encourages the legal delegitimisation of the victim. This is a key problem with the foundations of the defence that cannot be overcome through an approach to reform that retains the defence in any form. In raising provocation the offender seeks to put the words or actions of the victim on trial in order to illustrate how their use of lethal violence was provoked. Consequently, it is the victim of the homicide – often female – who is put on trial in cases where this partial defence is raised."

REFORM

verb // to make an improvement, especially by changing a person’s behaviour or the structure of something

Provocation reforms in New South Wales came only after an inquiry launched in the wake of the sentencing of Chamanjot Singh, who received only a six year sentence in June 2012 for manslaughter after slitting his wife Manpreet Kaur’s throat with a box cutter in 2009. During the trial, Singh raised provocation to successfully argue he was provoked to kill her because of “suspicions of infidelity”, “disparaging comments made about his mother” allegedly made by Kaur, and his “belief that the relationship was ending and that he would be deported.”

Reform has been markedly inconsistent across other parts of the the country. Rather than repeal provocation in its entirety, other Australian jurisdictions have opted to modify the defence: in the Northern Territory and the Australian Capital Territory, the defence was modified so that a non-violent sexual advance cannot, without other factors, constitute provocation; in Queensland, a homosexual advance can no longer constitute provocation, nor can ending or changing a relationship. Even in the wake of the Singh case, New South Wales did not repeal provocation entirely—instead, the law was amended to stipulate that non-violent sexual advances are no longer a basis for provocation, and that any other provocation must be “extreme.”

MISUSE

verb // to use something in an unsuitable way or in a way that was not intended

What ramifications these amendments will have in practice in Australia are yet to become clear, but outcomes from other jurisdictions—including England—suggest retaining the defence in any format leaves it open to misuse.

Dr. Fitz-Gibbon said provocation should not be retained in any form: "The partial defence of provocation should be abolished. The experience of other jurisdictions in Australia and elsewhere, including England and Wales, has shown that reform which reforms but retains the defence is rarely successful in clearing the law of the gendered problems which arise from the operation of this partial defence."

This has played out in a 2016 case in the Northern Territory: despite amendments there to provocation in 2006, it came under scrutiny again in 2016 after Danny Deacon killed Carlie Sinclair and was able to attempt, albeit unsuccessfully, to argue provocation due to their relationship ending had been a factor in her death.

Dr. Fitz-Gibbon wrote that the abolition of provocation will send an important message to the community that the criminal law "will not allow a vehicle which blames victims for the violence perpetrated against them". She said "it is important that the current momentum to review the law is transferred into meaningful reform that will ensure that the injustices of the provocation defence do not continue to plague the South Australian criminal justice system."

(All definitions from the Cambridge English Dictionary.)