Abolishing the defence of provocation - A better future ahead?

The defence of provocation can be traced back to 16th and 17th century England when drunken brawls and fights arising from ‘breaches of honour’ were common. At that time, the notion of honour was of great importance to society. Thus, if one was insulted or attacked, anger was expected and the person was expected to react. The failure to produce a response of anger would then be considered cowardly. Therefore, anger was considered reasonable and rational response in the circumstance.

The modern law of provocation shifted from being based on the idea of anger as a justified response in some situations, to being based on the idea of ‘anger as loss of self-control.’ Provocation is generally justified on the basis that the Accused could not properly control his or her behaviour in the circumstances, and an ordinary person might react similarly. A person kills due to a sudden loss of self-control after being provoked is regarded by some as being less morally culpable than someone who kills ‘deliberately and in cold blood.’

However, this defence seems to pose many problems. One of which is that the defence is seen as gender biased. Because the defence was originally framed to deal with male aggressive responses to provocative conduct, the sexless ordinary person, it has been argued, is in fact male. Accordingly, women are seen to be significantly less successful in their claims of provocation. Whatever the old law's intent, in practice it disadvantaged women, particularly women who suffered domestic violence - who generally do not directly confront violent, stronger partners at a time of imminent threat. It is much easier for male defendants to plead a "crime of passion" — and seven out of 10 murders in Victoria are committed in intimate or family circumstances.

The landmark case of Heather Osland clearly reveals the problem of gender biasness of that defence. Heather Osland and her children were subject to 13 years of physical, emotional and sexual abuse by her husband. During the 13 years of violent abuse, Heather tried to leave but each time she was forced by threats from her husband to return to the family home. She knew that there was an escalating level of threat. As she believed she and her son’s lives were at risk, she took steps, what she believed was necessary to protect them. Heather Osland mixed sedatives in Mr. Osland’s food prior to the killing and Heather and her son also dug a hole a day before the killing to bury his body. Because the killing was considered premeditated and not at the spur of the moment, Heather was unable to claim provocation.

The suddenness element of the defence which is more reflective of male patterns of aggressive behaviour is unfavourable to women as seen in the Osland case. Women, unlike men cannot strike out in the spur of the moment because of an imbalance of power, both physically and emotionally. Thus, they have to plan the kill as they believe that it is necessary to defend themselves. Accordingly, the defence is not designed for women.

Also, a loss of self-control is seen by many as an inappropriate basis for a partial defence. Individuals should be able to control their impulses, even when they are angry. A violent loss of control should not be excused. Practically, the law made it too easy for men to blame their partner for provoking them, enabling them to "get away with murder”.



Victorians on trial for murder will no longer be able to use provocation as a defence following changes to Victoria’s homicide laws which include the abolishment of the defence of provocation. However, defensive homicide, imposing a maximum of 20 year’s jail will be introduced. Men who kill their partners in a jealous rage will no longer be able to use the partial defence of provocation to escape a murder conviction. The question of provocation will simply be taken into account, if relevant, alongside a range of other factors in the sentencing process.

The offence of defensive homicide aims to take account of situations where people believe, albeit unreasonably, that they must kill protect themselves against an inevitable threat. Under the proposed changes, the law will take into account situations where a person kills in response to long-term family violence, even if they were not facing immediate harm. This means that if a person believes his or her conduct is necessary to defend oneself or another person (such as her child) from death or really serious injury, and this belief was reasonable, that person can argue self-defence. Importantly, where a killing occurs in the context of family violence, the legislation will affirm that she can argue self-defence even if the threat from which she is defending herself is not immediate, and even where her response involved greater force than the harm with which she was threatened.
However, some have argued that abolishing the defence of provocation would create more problems. Cases that involve a question of provocation in its purest form might cause injustice for the Accused. For instance, in the case The Queen v R, the short time before the killing, Mrs R found out that her husband of many years had been raping their daughters as they grew up. Her feelings of rage grew, and on the fatal night, he came home and said, ‘You know dear, I’ve always loved you’, and gave her a kiss and went to bed. That final act sent her over the edge. She went to a shed, got the axe, came back and killed him. The jury, overwhelmed by the circumstances of the case acquitted the Accused. However, if that particular case was to be judged under a law that excludes the defence of provocation, the Accused might be convicted of murder which is considered by some to be an unjust outcome.
The betterment of Victoria’s homicide laws could only be tested in time to come.

Written by: Joanne Khoo