Provocation and victims of domestic violence

[I just wrote a rather long comment at The Hand Mirror about battered women and provocation, in response to people suggesting we need to maintain the partial defence of provocation to protect battered women. I am reproducing it here as it shows that the provocation does not help battered women, in fact it only protects their abusers]

The Law Commission has done a lot of work on this, and it appears that the provocation defence is not of value in “battered women syndrome” killings, so we lose no protection for women victims of domestic violence by repealing it.

Some Criminal Defences with Particular Reference to Battered Defendants

The Law Commission did a piece of work which focussed solely on defences for battered defendants completed in 2001 (Some Criminal Defences with Particular Reference to Battered Defendants – NZLC R 73. It shows that provocation is not an effective defence for battered women, and even that it has been successfully used by a perpetrator of domestic violence.

In R v Tepu a man successfully used provocation as a partial defence when he beaten his wife to death – her provoking act? going to the Police when he severely beat her

Partly in response to recommendations in that report the mandatory life sentence for murder was abolished in 2002, and judges have sentencing discretion for battered defendants.

The Partial Defence Of Provocation – NZLC R 98

From 2004 to 2007 the Law Commission did work specifically on provocation (The Partial Defence of Provocation) resulting in a recommendation for its repeal. As part of that they rechecked there would be no disadvantage for battered women and, in fact, did some handy stats.

Of the 81 homicide trials they looked at (2001 to 2005, Auckland and Wellington) in 15 provocation was used as a defence. In only one of those was provocation used as a defence by a woman. In that case, while the killer had experienced domestic violence, she killed her husband because he said he was leaving her. I won’t copy the description here (see p103 of report if you really want to), but it’s exactly the kind of killing-someone-because-they-say-they’re-leaving that we shouldn’t allow to be called manslaughter.

So there were go, the Law Commission has worked really hard on the issue, and provocation is not helping battered women who kill to protect themselves.

10 thoughts on “Provocation and victims of domestic violence

  1. Anita

    I hear what you say but the debate is incomplete without considering the repercussions of a conviction for murder. The Criminal Justice system is incredibly brutal and demands long sentences, almost invariably life if someone is convicted of murder. This has been a result of our very conservative and dare I say reactionary approach to criminal justice over many centuries.

    Provocation does not avoid a heavy sentence, it may convert a life sentence to one of 10 years in jail. Requiring all persons who cause the death of another to serve a life sentence irrespective of the circumstances may, putting aside the effects on the defendant and his family, be “just” and reflect “equality” but you are insisting on the barbaric treatment of defendants to be doled out equally. You seem to be objecting to compassion being offered to someone (usually male) who finds themselves in a situation where they react terribly.

    What about instead of requiring life imprisonment in murder cases the sentence is to be (usually) a term of imprisonment up to life imprisonment depending on the circumstances?

    Then there will be no need for defences such as provocation and all the curcumstances can be taken into account. Many trials will be avoided.

    The way that I see it an automatic (life) sentence means that defendants will try anything and juries may, in showing some compassion, be giving a message that certain inappropriate views create a legal defence.

  2. As my post says there is no longer a mandatory life sentence for murder (try the first two paragraphs of the Foreword of the second Law Commission report.

    Agreed Anita and my original post confirms this. I said that the sentence was “almost invariably life” if convicted.

    The Sentencing Act states “[a]n offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust”.

    This is a pretty heavy test. I am suggesting the sentence for murder should be a maximum of life imprisonment with the sentencing Judge having more discretion about what the sentence should be.

  3. micky,

    The Criminal Justice system is incredibly brutal and demands long sentences

    This is quite squarely an article of faith for some folk, just as the inverse (the justice system in NZ is wimpy and fails to adequately punish any wrongdoers ever) is an article of faith for other folk. To be a meaningful statement it needs to be further contextualised and qualified than it is here.

    It’s been a lot of years since I studied criminology, but I seem to recall NZ’s sentencing norms being not at all outrageous by comparison with like societies. Still, that was before the punishment auction really got going.


  4. Interesting post Anita. You have basically shown that battered women killing their abusive partners is effectively a myth not a reality.

    After the Bain trial I am still lamenting the poor quality of our juries, and this only encourages defence lawyers to go down the provocation track, since they know they will likely make their story resonate with at least a couple of morons on the jury.

    God forbid anyone on the W……n jury is falling for the story of that psychopath.

  5. Pat,

    Um no, I’ve shown that battered women killing their abusive partners to escape the violence then using the s169 provocation defence is a myth. The first report I linked, which was entirely on the actions of battered partners, has some examples of them killing to escape and talks about the defences they can/do use.

  6. I think it wrong that the woman shouldn’t have that defence and I would suggest that a four year period with fifteen cases is too small a sample to make a valid reccomendation on. Obviously my memory goes back further than 2001 when I remember feeling justice was done when a woman was permitted to use that defence against a husband’s violence. If the law didn’t permit that pre-2001 then I guess somehow the court got it right despite the law.

  7. jcuknz,

    If you read the first of the Law Commission reports you will find that there are a number of defences available to battered partners, and that since that report things have been improved for them by the increase in judge’s sentencing discretion in cases of murder.

    You will also find that s169 provocation was not working for battered women as a defence, and was not used successfully by them.

    Battered spouses have defences (whether they have enough is a different issue for a different posts) as they do not use s169 provocation they lose nothing by its repeal.

  8. The more ive seen and thought about the provocation defence the more I believe it should be repealed. the only defence to murder should be self defence or defence of others. Issues such as provocation, battered womens (or mans ) syndrome should be taken into account at sentencing.

  9. I find it interesting that the main impetus for repealing provication, at least at this point in time, is that it effectively puts the victim on trial.

    I don’t see how self-defense doesn’t do the same thing.

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