Christchurch Women's Refuge blog - Is the Provocation Defence Indefensible?

It seems very likely that New Zealand will lose its defence of partial provocation. Many of us, having watched in dismay bordering on revulsion as Weatherston took the stand, will heave a sigh of moral relief. But, as with all legal wrangling, the case is not as straight forward as it seems. Questions remain that New Zealand’s legal fraternity have yet to adequately answer.

The provocation defence certainly appears to “wrongly enable defendants to besmirch the character of victims and effectively reward a lack of self control" to quote Simon Power. This was epitomised by the Weatherston trial whereby Sophie Elliot became the target of recrimination. As with rape trials, whereby a female victim’s sexual relationships go on trial as evidence against her, this case reiterated antiquated notions that a women’s forward, aggressive, promiscuous behaviour was unacceptable and can count towards the defendant’s justification and legal defence.  And it would seem this trial and such tactics has been the harbinger of national fervour against the provocation defence and the catalyst for change.

As Heather Honare, Women's Refuge chief executive points out, the provocation defence rests on archaic notions about violence and offences to male privilege. And we have certainly seen that in action in our courtroom of late. One of the driving forces of abuse is embedded in a belief system of male entitlement. In “Issues of Intimate Violence” (1998) the author Raquel Bergen interviews male batterers and notes that a theme of self-righteousness and male entitlement pervades the men’s accounts. The batterer’s made excuses of ‘loss of control’ and ‘provocation’ but their objective, through their violence, was to show their partners how far they would go in maintaining control. This is an all too familiar story for many women, and a transparently inadequate argument for a legal defence.

However, as I earlier cautioned, throwing out the provocation defence leaves some knots untied. As stated in ‘Murder Defence’, Christchurch Press, July 24th, by removing the partial provocation defence “NZ will end its practice of partially excusing individuals who intentionally kill after being provoked, by ensuring that those who do are convicted of murder”. That sounds great, except that by its removal it will also mean that some will have absolutely no recourse at all.

Although Honare specifically address issues of male privilege, this discounts the women who murder their partners and evoke provocation as a response to continued abuse, not a desire to wield power and control. Therefore, women legitimately suffering from ‘battered woman syndrome’, which certainly does not stem from grandiose ideas of female entitlement, would be left out in the cold if they can no longer assert provocation.

The Law commission has rejected alternatives including modifying self-defence and the inclusion of diminished responsibility. Power believes that the sentencing itself should deal with these issues, which leaves it in the hands of the judge not jury. But as stated by Dr Chris Gallavin in the Christchurch Press, 24th July “its removal without replacement is problematic”. Therefore, although the removal of the provocation defence in itself will be a welcomed move, I can’t help but be nervous about others who, through genuine extenuating circumstances, may be left will no legal recourse for defence at all.