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August 3, 2009 | by  | in Opinion |
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Provocation. What does it mean to women?

Last week we heard that Justice Minister Simon Powell is advocating that New Zealand gets rid of ‘provocation’ as a partial criminal defence. This article discusses how provocation defence can be particularly harmful to women. Some cases will be discussed with assumed roles for males and females, but that is not to say that the defence is not problematic for all genders: there’s a great article on www.salient.org.nz that discusses the defence in more detail and with particular reference to gay men. I do use the example of a woman subjected to prolonged abuse by a male partner, as while domestic abuse is an issue in relationships of all genders, it is most common in hetero-sexual relationships, where male abuses female and it is in such relationships that provocation has repeatedly been used as a defence.

What is provocation?

Very basically, provocation is a partial defence that, when successful, can reduce a charge of murder to manslaughter. If the offender can prove that circumstances were enough to deprive him or her, or any ordinary person, of self-control and that this induced him or her to commit murder, his or her charge can be reduced from murder to manslaughter (Some Criminal Defences with Particular Reference to Battered Defendants, Law Commission, 2001).

Why does ‘provocation’ defence favour males and not females?

Several bloggers have argued in favour of ‘provocation defence’, saying that a victim of prolonged sexual, verbal, psychological or physical abuse, who one day retaliates and kills her abuser can use the law to reduce her charge. The problem is: a man who continually abuses his partner and one day kills her because she suddenly ‘provokes’ him, for example, he catches her in bed with another man, may be able to use provocation to reduce his charge from murder to manslaughter. However, if this same woman who has put up with abuse for a prolonged period were one day to kill her partner, provocation defence is very unlikely to be of use to her defence. For victims of domestic or sexual abuse, going to the authorities at each instance of abuse is very often not an option. Therefore a woman may be subject to abuse over an extended period of time. Her resentment may build toward her partner, and she is much more likely to retaliate in a more calculated plot, than the sudden outburst of violence that the male partner may tend toward. Are years of domestic abuse provocation?

Courts have accepted that the defendant might react to provocation with a “slow burn”, that a minor incident may be a “final straw” which causes loss of self-control and that earlier provocation may be revived some days later. However, provocation defence remains to be apparent only for immediate retaliation (Some Criminal Defences, 2001). Therefore, a woman can only claim to be provoked if she reacts immediately to an instance of abuse, not if the abuse has intensified over an extended period of time.

Battered defendants tend to kill their abuser because of fear or despair rather than anger. While such feelings may also cause a loss of self-control, they are less likely to result in the sudden outburst directly following provocation that the defence requires. Many battered defendants who kill their abusers behave in an outwardly calm and deliberate manner (Some Criminal Defences, 2001).

By accepting provocation as a partial defence, we are not only allowing the chance of a lesser sentence, but also in some ways condoning this loss of control. Thus, we are condoning male outbursts of violence toward females, by saying that although this violence is ‘wrong’ and he will still be charged, society can ‘understand’ and in some sense sympathise with such a violent reaction. Society cannot, however, compensate for this by allowing the victim, often a woman, to use a similar defence if she is ‘provoked’ by sexual, verbal, psychological or physical abuse and finds no other option than to murder her partner.

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About the Author ()

Fiona was named "Recessionista" in the ASPA Fashion Awards 2009 for her Takaka op-shop frock and spray painted shoes. She co-edits the arts section and also likes to write about women and other stuff.

Comments (2)

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  1. kyle says:

    this has to be the most sexist, woman liberal column ive ever had the misfortune to read. Of cource provocation is a deffense and so it should be. I think ill kill my wife to make a point pluss she always overcooked my eggs .

    be out in 8

  2. smackdown says:

    “satire” by kyle

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