The NSW Government is seeking to restrict the defence of provocation under a new Bill released for discussion on 17 October 2013.
The defence of provocation is used in cases of murder where the conduct of the deceased caused the defendant to lose their self-control and kill. Currently provocation acts as a partial defence, reducing a possible conviction of murder to manslaughter.
The defence is controversial for a number of reasons, in particular for legitimising both homophobia and jealousy killings. In the case of the former, the defence has been successfully used by a male defendant for killing a man who had made an unwanted, non-violent sexual advance. The defence, known here as the “gay panic” defence, has been criticised in these cases for legitimising feelings of, and violent responses to, homophobia within our community. The defence is also used by men who kill their partners in an intimate relationship, claiming they were provoked by the partner leaving them or were allegedly having an affair. Again, this sends a message that the feelings of a jealous and controlling partner are understood and partially legitimised by our criminal justice system. However, the defence is also used by women who are in chronically abusive relationships, suffering from what has been called “battered woman syndrome”. Women who finally lash out against their partner have been able to use this defence to avoid the stigma and sentence of murder.
The proposed Bill would eliminate provocation as a defence to any non-violent sexual advance. The defence could, if the Bill were passed, only be used where the provocative conduct would amount to a serious indictable offence. There are questions, therefore, as to whether the Bill will still be able to protect women who respond violently to prolonged family violence.
The consultation draft of the bill can be found here http://www.lpclrd.lawlink.nsw.gov.au/lpclrd/lpclrd_index.html. Submissions can be made in response to the Bill until 14 November 2013.