Related issue outline:1998: Provocation and the "battered woman syndrome"
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Sections in this issue outline (in order):
1. What they said. 2 The issue at a glance. 3 Background. 4 Internet information links. 5 and 6 Arguments for / against. 7 Further implications on this issue. 8 Newspaper items used in the compilation of the outline.
2005/04: Should the partial defence of provocation be available to those accused of murder?
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2005/04: Should the partial defence of provocation be available to those accused of murder?
What they said ...
'The claim that my sister provoked him allows him to exonerate himself and blame her for his loss of control. Provocation carries with it the assumption that a man has a right to punish his wife if she defies him'
Jane Ashton, commenting on the provocation defence offered by her brother-in-law, James Ramage
'Every person has got a homicide in them if the right trigger is used ... I think juries, in certain situations, just recognise that and do not want to say guilty to murder'
John Smallgood, QC
The issue at a glance
On October 28 2004 James Ramage was found guilty of the manslaughter of his estranged wife Julie.
Mr Ramage had confessed to punching and fatally strangling Julie Ramage. He had then buried her body in a shallow grave at Kinglake, Victoria, before turning himself into the police in the company of his attorney.
Mr Ramage was found guilty of manslaughter rather than murder because he claimed that his wife had provoked his actions by previously lying to him about her intentions regarding their marriage and then taunting him with claims that she found him repulsive and had found another partner.
The verdict in the Ramage case has provoked a furious reaction from Mrs Ramage's family, from a range of groups campaigning for female equality before the law and from opponents of the defence of provocation.
In September 2001 the Victorian Attorney General, Robert Hulls, charged the Victorian Law Reform Commission with examining the law of homicide and considering whether various defences to homicide, including provocation, should be reformed.
The Victorian Law Reform Commission is due to release its final report on defences to homicide on November 18 2004. It will be interesting to see what it recommends and what the reaction to its recommendations will be from legal bodies, the government and the general public.
The operation of the defence of provocation was reviewed in New South Wales in 1982 and rather than being abolished it was extended to make the defence more available to women.
Background
Provocation and the law
Provocation is a partial defence which reduces murder to manslaughter. It applies in all jurisdictions in Australia.
Provocation is not available for offences other than murder. This defence is based on the belief that a person who kills in the face of provocation is less culpable or blameworthy.
Though the law does not condone killing in these circumstances, the courts, 'as a concession to human frailty', will accept provocation as a qualified excuse that reduces the seriousness of the crime and so the length of the sentence.
A recent Victorian Law Reform Commission study revealed that the median sentence imposed in that state on people convicted of manslaughter on the basis of provocation is six years. By contrast, the median sentence for those convicted of murder is 17 years.
There are generally three factors involved in establishing a defence of provocation.
* Was there provocative conduct?
* Was that conduct so seriously provocative that it might provoke an ordinary person to lose his or her self-control and form an intention to kill or cause grievous bodily harm?
* Did the accused actually lose his/her self-control?
In terms of the burden of proof, the accused bears the evidential burden of ensuring there is evidence for a jury to consider. The prosecution then holds the legal burden. They must disprove the three elements beyond reasonable doubt.
What is provocative conduct?
'Mere words' can only amount to provocation if they are of a 'violently provocative' or 'exceptional character'. Among the words that have been accepted as provocation are:
* a confession of adultery;
* racial taunts;
* verbal insults;
* taunts about sexual inadequacy.
The cumulative effect of provocative words or actions is likely to be taken into account with the defence being more probable where the accused has been subjected to a previous pattern of provocative behaviour.
Children cannot be regarded as having provoked their own deaths.
Traditionally anger has been regarded as the only emotion likely to cause a loss of control. However, the modern law may recognise loss of self-control resulting from resentment, fear, apprehension, emotional anguish or panic. The recognition that emotions other than anger can cause a loss of self-control opens the defence up to women.
The law tries to balance the particular circumstances of the accused with what would appear reasonable to the hypothetical 'ordinary person'.
There are two factors that are considered
* the gravity of the provocation;
* the likely reaction of an 'ordinary person' to such provocation.
When assessing the gravity of the provocation the situation of the accused is taken into account. This includes the accused's age, sex, race, ethnicity, physical attributes, personal relationships and past history.
The jury is then asked to decide whether an ordinary person would lose self-control and form an intention to kill or do grievous bodily harm because of that degree of provocation.
Internet information
The University of Melbourne's Law Students Society has Internet links to a range of law firms that supply information on legal questions.
Freehills and MinterEllison have supplied a detailed consideration of the defence of provocation.
This information can be found at http://www.lss.unimelb.edu.au/docs/tutorials/2004/Crim/Criminal%20Law%20-%20Tute%203.doc
On July 9 2001 ABC television's Law Matters program presented a discussion of the defence of provocation. The program includes interviews with John Smallwood QC who gives some of the reasons for the provocation defence and with Phil Cleary a former independent MP, author and opponent of the defence of provocation as it currently operates.
A transcript of the program can be found at http://www.abc.net.au/lawmatters/s326261.htm
On September 17 2002 Radio National's The Law Report ran a program considering the defence of provocation. It was titled, 'Provocation - is it past it's use by date?'
The program featured interviews with Remy Van de Wiel, QC, a Victorian criminal barrister and Associate Professor Jenny Morgan who teaches law at Melbourne University. Both have very different views on how, if at all, the defence should apply.
A full transcript of the program can be found at http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s677001.htm
Phil Cleary is a former independent member of federal parliament, VFL footballer, coach and a commentator and author. He became a campaigner against the current operation of the defence of provocation in 1987 after the death of his sister.
Mr Cleary has an Internet site where he treats a variety of issues.
The links 'People' and 'Politics' contain many articles giving his views on provocation, his sister's death and her killer's trial and other examples of what he believes is the misogyny evident in Australian law and culture. The site contains a variety of items and comments on James Ramage and Julie Ramage's death.
It can be found at http://www.philcleary.com.au/index.html
In 1997 the New South Wales Law Reform Commission produced a report titled, 'Partial Defences to Murder: Provocation and Infanticide' The report recommended that the defence of provocation be retained and that its operation be reformed in a variety of ways.
The report makes very useful reading. It is an explanation, justification and critique of provocation as a defence.
It can be found at http://www.lawlink.nsw.gov.au/lrc.nsf/pages/R83CHP1
On July 7 2002 ABC Radio National's National Interest program featured Terry Lane interviewing the chair of the Victorian Law Reform Commission, Professor Marcia Neave, on provocation and other defences against homicide. The program was titled 'Defending homicide'. A full transcript can be found at http://www.abc.net.au/rn/talks/natint/stories/s598762.htm
In September 2003 the Victorian Law Reform Commission released its 'Defences to homicide: options paper' The Commission considers the extension of self-defence to include women who kill abusive partners; the restriction of the circumstances under which men could claim to have been provoked by the desertion of female partners and the possibility of removing provocation as a defence altogether.
The full text of the options paper can be found at
http://www.lawreform.vic.gov.au/CA256A25002C7735/All/41271AB6FA287641CA256E9E00136FCC?OpenDocument&1=30-Current+projects~&2=40-Homicide~&3=50-Options+Paper~
On October 29 2004 Kathy Bowlen of the ABC's Victorian Stateline conducted an interview with Jane Ashton, the sister of Julie Ramage and with Mrs Ramage's friend Gilda Pekin. Both women are highly critical of James Ramage's provocation defence.
A transcript of the interview can be found at http://www.abc.net.au/stateline/vic/content/2003/s1230931.htm
Arguments opposing the defence of provocation
1. The social and legal grounds for the defence of provocation no longer exist
It has been claimed that the defence of provocation is now an anachronism as the circumstances which formerly justified it no longer apply.
Provocation was instituted as a defence at a time when men were frequently armed and so could respond to provocation in a lethal manner without premeditation. The prevailing value system was also different as there was a greater emphasis placed on a man's reputation. Slights to man's honour were more likely to be seen as serious provocation. Finally, when provocation was first accepted as a defence, convicted murderers faced a mandatory death sentence. This meant it was appropriate to charge the accused with a lesser crime, carrying a lesser penalty, when the killing, though deliberate, did not appear premeditated.
Opponents of the defence of provocation argue that the circumstances that once made it acceptable no longer apply. In its editorial of October 29 2004 The Age argued, 'The defence is an archaic one and should be abandoned. It arose at a time when men routinely bore arms and when the punishment for murder was the death penalty. A distinction was therefore made between a cold-blooded murder and one that occurred in the passion of the moment. But we no longer live in a time when "hot-blooded" male violence is considered acceptable, while the abolition of capital punishment means that the need for the defence has largely vanished.'
2. Provocation as a defence discriminates against women accused of murder
It has been claimed that the defence of provocation is gender biased. A recent Victorian Law Reform Commission study has shown that of 24 men who used provocation as their defence a third had their charge reduced to manslaughter. Over the same period three women tried to claim provocation as a defence. All the women were unsuccessful.
It has been claimed that the apparently more premeditated nature of the crimes committed by most women who kill abusive partners tends to disallow the defence of either provocation or self-defence. Both defences typically require an immediate threat or fear of danger and a spontaneous killing. However, men who apparently kill in a fit of rage can be regarded as having acted without premeditation and in response to provocation.
Mary Crocks, the executive director of the Victorian Women's Trust has noted the gender bias in this pattern. She has written, 'On the one hand, men (such as James Ramage) can use provocation to excuse or somehow "justify" their male anger and violence towards women. Yet women (like Heather Osland) who have faced long-term, barbaric and violent abuse, find it difficult to convince a court that they were genuinely defending themselves and their children.'
3. Provocation often cannot be satisfactorily proved
It has been claimed that the defence of provocation is often dubious as it cannot be corroborated. According to this line of argument as the victim of the murder, the person claimed to have provoked the attack, is dead there is often no one to dispute the claims the accused makes about what was said or done prior to the killing.
This point has been made by anti-provocation law campaigner, Phil Cleary, in an opinion piece published in The Herald Sun on October 29, 2004. Mr Cleary wrote, 'The fact that dead women can't speak is a godsend for these killers.'
An e-mail correspondent to Mr Cleary's website noted, 'There are many flaws in the defence of provocation, the major one being that the murderer can testify in court, while the victim obviously can't.'
In the Julie Ramage case her family have been extremely sceptical of James Ramage's claims that his wife taunted him about his sexual inadequacies immediately before he killed her. Mrs Ramage's mother, Mrs Patricia Garrett, has said of her murdered daughter, 'She would not have provoked him because she was scared of him ... Never in a million years would she have put herself in that situation.'
Those who oppose the provocation defence claim that it allows the accused to lie with impunity about what the victim said or did to have supposedly provoked his or her death.
4. Provocation puts women who leave or challenge abusive partners at greater risk
It has been claimed that the defence of provocation gives men who abuse or intimidate their partners less reason to control their behaviour. According to this line of argument, when such men know they may be convicted of manslaughter rather than murder there is less incentive for them to refrain from violence when their partners leave or challenge them.
This point has been made by Julie Ramage's sister, Jane Ashton. Mrs Ashton has argued, 'The claim that my sister provoked him allows him to exonerate himself and blame her for his loss of control. Provocation carries with it the assumption that a man has a right to punish his wife if she defies him.'
A similar point has been made by Mary Crooks, the executive director of Victorian Women's Trust. Ms Crooks has said, 'If a woman says that she is in some way unhappy that now gives a basis on which to kill - that's the bottom line.'
It has also been argued that the way in which the defence of provocation currently operates actually discourages women from leaving or challenging abusive partners. Mary Crooks has further stated, 'It sends an awful message to women. Don't try to fight his abuse and his desire to control you, hide your fear, don't try to leave, because in society's eyes, as reflected and symbolised in the decisions of the courts, your safety seems to be of no real moment, and your life can be snuffed out because your man is angry and jealous.'
5. The cultural background of the accused should not be a determining factor in law
It has been claimed that using the cultural background of an accused to argue that this person might be particularly vulnerable to provocation can be inaccurate, lead to racial stereotyping and appear to condone conduct that would in fact be condemned by the culture being referred to.
This point has been made by Marcia Neave, the chair of the Victorian Law Reform Commission. Professor Neave has stated , '[The problem with] a cultural defence is that it may lead to all kinds of stereotyping and ... evidence being given about what is acceptable in particular cultures, which is not really acceptable even in that culture...
I think there is a real problem that you create stereotypes about Turkish men or Muslim men, or whatever it might be ... which are really most unfortunate, and which tend to support behaviour that most people in that society would not support at all.'
It has also been claimed that the values of the mainstream culture have to play a major part in the judgement as those coming from another culture may well have done so intending to take on new values. This point has also been made by Professor Neave who has stated, 'The strongest submission against [legal] relativism came from migrant women. They had hoped that they'd got away from that sort of male oppression justified in the name of religion.'
6. Differences in the circumstances leading up to a crime can be allowed for in sentencing
It has been claimed that we no longer need to make different categories of crime to allow for differences in the circumstances leading up to killings. There should no longer be the different crimes of murder and provoked manslaughter carrying different penalties.
Now that murder no longer carries a mandatory death sentence and indeed the death sentence has been abolished in Australia, it should be possible to allow judges to use discretion in sentencing to mark the difference between murders. They should be able to consider the total context of each crime and give more lenient sentences where appropriate.
For example, ABC Radio interviewer Terry Lane has argued that a woman in an abusive relationship should probably not be allowed the defence of provocation. Instead, Mr Lane has claimed, 'You could imagine that she could be convicted of murder, but the judge could exercise the utmost compassion in the sentencing process.'
Arguments supporting the defence of provocation
1. Some murderers are less blameworthy than others
Marcia Neave, chair of the Victorian Law Reform Commission, stated in 2002, 'I think that we all recognise that there is a moral difference between a cold-blooded killing and a killing that's done in circumstances that we can sort of understand. So somebody gets into a violent rage because of something that happens to them. So I think most of us would say that somebody who kills in those circumstances is not as morally culpable as somebody who for instance plots a murder over a period of a year.'
Similarly, the New South Wales Law Reform Commission stated in 1997, 'There are instances where the culpability of a person who kills is reduced by reason of that person's mental state being impaired by a loss of self-control. In such cases, the offender does not warrant being labelled a "murderer". A conviction of manslaughter ensures a greater likelihood that the community will understand and accept a reduced sentence which reflects a lesser degree of culpability.'
John Smallgood QC has also argued that not all murders are the same and that where a murder is not premeditated and where the accused has been significantly provoked juries want to take these factors into account.
Mr Smallgood has stated, 'Every person has got a homicide in them if the right trigger is used, and that is the law of pushing people too far. And I think juries, in certain situations, just recognise that and do not want to say guilty to murder.'
2. The defence of provocation is being expanded to include women who kill
It has been claimed that the defence of provocation is being adapted to accommodate the type of provoked murder typically committed by women.
Where once this defence focused exclusively on loss of control through anger, it now acknowledges that a range of other emotions, including fear, can provoke people to kill. This is important because it makes the defence of provocation more available to women.
Women who kill frequently do so after years of domestic violence in circumstances commonly referred to as the 'battered woman's syndrome'. Historically these circumstances have precluded the defence of provocation as there has not been the element of spontaneous loss of control once associated with this defence. Recent modifications to the provocation defence have made it more accessible to women.
In 1997 the New South Wales Law Reform Commission noted, 'a new formulation of the defence of provocation was introduced in 1982 ... intended to define the defence in a way more appropriate to women who kill after being subjected to domestic abuse... the 1982 amendments [saw] the removal of the requirement of suddenness from the defence of provocation and an express provision that the provocative conduct need not occur immediately before the killing ...This makes the defence even more flexible in recognising women's responses to domestic violence where the killing is not triggered by any particular isolated incident but is a response to a long period of abuse.'
It has been claimed that similar modifications can be made to the provocation defence in all Australian states so that the law better addresses the circumstances of women.
3. Provocation allows for cultural diversity
It has been argued that as Australia becomes more culturally diverse a defence of provocation becomes even more necessary. Those who support this view claim that their individual cultural values may cause someone to be seriously provoked by a particular type of conduct.
On July 7, 2002, ABC Radio commentator Terry Lane referred to the following case, 'a man ... stabs his daughter to death because she's had sex with an unapproved partner, that is, a partner not approved by the father. The father murdered his daughter and then pleaded provocation on the grounds that he's a traditional Muslim and his daughter has defied him and shamed him, and his defence was successful and he was convicted of manslaughter.'
Professor Marcia Neave, chair of the Victorian Law Reform Commission remarked in relation to such cases, 'Here we have a situation where a person coming from that culture might react in a way that we can understand, taking into account that culture.'
4. Judicial discretion in sentencing cannot be relied upon
It has been noted that there is an increasing tendency within Australian jurisdictions to distrust judicial discretion and to seek ways to limit it. The result of this has been moves toward mandatory sentences for certain crimes.
A Parliament of New South Wales Briefing Paper released in 1998 noted, 'New South Wales has introduced mandatory life sentences for murder and certain drug trafficking offences where a court is satisfied that the level of culpability is extreme. The judicial sentencing discretion is also affected by the recent decision of the New South Wales Court of Criminal Appeal to issue its first formal guideline judgment. To promote the development of further guideline judgments, the NSW Government has indicated it is considering allowing the Court to establish guidelines without linking them to individual cases.'
The re-introduction of mandatory sentences reinforces the need for the defence of provocation. Provocation allows a provoked killing to be regarded as manslaughter and so attract a lesser sentence. If an accused convicted of murder faces a mandatory death sentence then the defence of provocation must be allowed to reduce the charge to manslaughter where appropriate.
5. The accused must be able to present his or her version of events
An accused person is legally entitled to be able to put the case for his or her defence. In regard to the circumstances surrounding the crime, where the accused is the only surviving witness to the events that occurred, the accused must be allowed to put his or her version of events.
The principal burden of proof, that is the obligation to prove a case, rests with the prosecution. This is in part because the resources available to the prosecution are generally so much greater than those available to the defence.
Under English Criminal Law, whose principles continue to apply in Australia, 'Where it is difficult for the defendant to provide evidence in his defence, or where the offence alleged is a serious one, the courts will generally take the view that the burden is too onerous, and it will rest with the prosecution.
If a defendant does have the legal burden he will only have to discharge it on the balance of probabilities.'
This is the situation with regard to provocation. The accused does not have to prove conclusively that provocation occurred. Rather the accused need only supply sufficient evidence to suggest that on the balance of probabilities it is likely that it did.
It is then the role of the prosecution to attempt to discredit the claims made by the accused beyond reasonable doubt.
The ultimate determiner in such circumstances is whether the jury accepts the version of events put by the defence or that put by the prosecution. This applies when the defence is one of provocation as much as any other.
6. Without provocation, juries may be less likely to convict
It has been claimed that abolishing the defence of provocation may result in those who kill being treated more rather than less leniently. In an interview with Phil Clearly conducted on ABC television's Law Matters in July 2001 the interviewer, Susanna Lobez asked, 'If there isn't provocation available to a jury to consider, and the option of manslaughter, aren't juries going to, in some circumstances, acquit killers?'
In an article published in The Age on September 16 2002 Victorian Law Reform Commission chair, Professor Marcia Neave, was also quoted as saying, 'One issue is if provocation were abolished, whether juries would acquit people of [murder] because manslaughter gives them a halfway house.'
According to this line of argument, if juries believed there were mitigating circumstances such as provocation which the law no longer allowed then they may be reluctant to find an accused guilty of murder and so killers may be released into the community without any punishment at all.
Further implications
It seems likely that the final recommendations of the Victorian Law Reform Commission's inquiry into defences against homicide will echo those of its options paper released in 2003. Though the defence of provocation is likely to be retained, it will probably be limited to make it less available to men who kill their partners when deserted or challenged.
The grounds under which self-defence operates as a legal defence are likely to be modified to make the claim of self-defence available to women who kill their partners after years of physical abuse. If this were to happen it will take Victoria in a different direction to New South Wales where the defence of provocation has been expanded to make it more applicable to women who kill violent partners.
Both states appear to be attempting to remove a supposed gender bias in the way in which the laws treats men who kill women as opposed to women who kill men.
It is to be hoped that in their laudable desire to remove such bias both states manage to get the balance right so that they offer the closest facsimile of justice to accused and victim irrespective of gender or cultural background.
Sources
The Age
29/10/04 page 1 news item by Karen Kissane and Peter Gregory, 'Mother's tears of rage over wife-killer verdict'
30/10/04 page 3 news item by Deborah Gough, 'Manslaughter verdict under attack'
30/10/04 page 10 editorial, 'Time to abolish the provocation defence'
30/10/04 page 10 letter from Gabrielle Alexander, 'Call it what it was: domestic homicide'
30/10/04 page 10 letter from Les Harris, 'This was no defence'
30/10/04 page 10 letter from Kate Stewart, 'Women are angry'
1/11/04 page 17 comment by Mary Crooks, 'It's time women had a better deal from the law'
1/11/04 page 16 letter from Laurence Webb, 'A partner's wishes'
1/11/04 page 16 letter from Astrid Sweres, 'Provoking fury'
The Herald Sun
29/10/04 page 4 news item by Shannon McRae, 'Fear women victims will be further alienated'
29/10/04 page 4 analysis by Chloe Adams, 'Living hell behind the cosy fa!ade'
29/10/04 page 1 news item by Chloe Adams, 'Wife killer fury'
29/10/04 page 20 comment by Phil Cleary, 'Julie's judicial betrayal'
30/10/04 page 16 news item by Ben Packham and Norrie Ross, 'Sister slams verdict/Provocation laws reviewed'
30/10/04 page 32 Three letters under the heading, 'Jammed scales and a blunt sword'
30/10/04 page 34 editorial, 'Urgent call for reform'
31/10/04 page 88 comment, 'Viewpoint: Is provocation ever a defence to killing someone?'
1/11/04 page 20 letter from Allie Bailey, 'Women in danger'
1/11/04 page 20 letter from Margaret Campion, 'Terrible verdict'
1/11/04 page 20 letter from Vicky Georgaklis, 'Lucky country, for some'