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GENDER AND VIOLENCE

PROVOCATION

10/27/2010
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GENDER AND VIOLENCE - PROVOCATION

A BRIEF STUDY OF THE APPLICATION OF PROVOCATION IN AUSTRALIAN COURTROOMS
AND LEGAL DISCOURSE

INTRODUCTION

The aim of this research is to discuss the application of the legal defences of

provocation in Australia‟s judicial system, in particular concentrating on the two

defences of homosexual advance defence and the battered women‟s defence. It is

found that both defences are out of touch with considerable popular opinions of

Australian citizen‟s. The defence of provocation in the legal system is based on

principals of substantive equality. The theoretical framework for this research essay

will be based upon the otherness of women and of homosexuality to the hegemonic

heterosexual masculine male identity in society. While the law is to maintain a sense

of equality for all citizens, it at times is a contradiction; „He who makes a beast of

himself gets rid of the pain of being a man‟. – Dr Johnson.1 It is problematic that

violence is supported by patriarchal formed attitudes within the law system. Through

the degrading of certain members of society the criminal law system stands above

like a monster that rends its self in a destructive and excessive solace of excess. By

examining two applications of the use of provocation as a defence, those of

homosexual advance defence and the battered wife‟s syndrome, it is found that the

use of provocation as a defence is a gendered issue. Based upon the examination of

academic sources, case notes and judgement readings, information points to a

necessity of understanding the complexities of life; the defence of provocation is an

essential piece of the defendants‟ case giving them the means to show this.
1
Hunter S. Thompson and Ralph Steadman 1998, „Fear and Loathing In Las Vegas: A Savage Journey To The
Heart Of The American Dream‟, Flamingo London, preface.
 3

COMPLEXITIES OF LIFE AND THE PRAGMATIC APPLICATION OF

LAW

The defence of provocation allows the legal system to judicate between the

pragmatic rationality of the application of criminal law and the intrinsic construction

that life is complicated. That life is complicated is to not just grasp a glimpse at the

“writing between the lines, it is to look for what is missing in the lines of writing”. 2

The legal system as a social super-structure contains en-mass ghostly matters.3 These

ghostly matters are social realities that haunt the present, recognising this haunting is

part of the process to uncover the spectres in social structures and discourses that are

still present. In the social world there is a need to conceptualize the presence/absence

of voices and how these voices are prohibited or given permission to speak in the

present.4 Using this framework allows to see through the opaqueness of gendered

constructions.

For analysing the contemporary application of the defence of provocation it is

important to understand how gender, identity and sexuality have been socially

constructed and mediated. Roach Anleu5 considers that many contemporary identified

criminal behaviours relating to the domestic sphere were once private matters and,

remained private. Importantly is how women are subjected to a wide range of

informal norms that are not rigorously applied to heterosexual men. This is relevant

when looking at the issue of women who kill their abusive male partners and the

2
Avery Gordon, 1997, Ghostly Matters: Haunting and the Sociological Imagination, University of Minnesota Press,
Minneapolis.
3
A Gordon, ibid.
4
A Gordon, ibid.
5
Sharyn L Roach Anleu 1999 „Ch 9. Women and criminal deviance‟, in Deviance Conformity and Control, 3rd
edition, Addison Wesley Longman, Australia, pp. 225 – 254.
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ways in which women are often labelled with a degrading or abnormal psychological

or medical term in the interpretation of the murder defence.6 At the same time, is the

paradox of self positioning of women where there is no common law and the law has

no jurisdiction over the haunting of romantic love. Seuffert7 discourse critique of the

reactions by the legal system of confessions of love by women who have committed

acts of homicide against male partners finds gendered inequalities also.

The notion of love and its qualitative meaning is not easily relatable within the

context of a woman who has committed an act of homicide. The interpretations of

statements of love are made subjectively and at the same time held in the interpretive

framework that consists of historical romantic notions of love and canonised ideals of

love.8 This indicates that it is essential when interpretation of women‟s statements

who are defendants in homicide criminal matters (in the context of being victims of

domestic violence) are made to challenge archaic patriarchal attitudes and to not

exclude an understanding of the complex personhood of the woman victim/defendant.

In relation to the paradoxical notion of loving the abuser, Easteal 9 explains at length

that when women choose the most obvious way to end a violent relationship, that is,

by leaving it, they in fact place themselves an increased level of risk. More women

6
Roach Anleu, ibid.
7 Nan Seuffert 1999, „Domestic Violence, Discourses of Romantic Love, and Complex Personhood in The Law‟,
Melbourne University Law Review, vol. 23, no. 1, April, pp. 211 – 240.
8
Nan Seauffert, ibid.
9
Patricia Weiser Easteal, 1993 „Killing the beloved: homicide between adult sexual intimates, Australian Institute of
Criminology, Canberra, Available http://www.aic.gov.au/documents/9/2/F/%7B92FC5640-1A81-4DF3-BE06-
398E9568859F%7Dbeloved.pdf
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are killed and harmed by ex-partners than any other demographic group in

Australia.10

This leads to a statement that those women who are victims of domestic violence

are to be in a social and legal no-win situation. As Easteal11 claims if abused women

do leave the violent relationship and get out of the domestic space their chances of

being killed by the ex-partner dramatically escalates. In a supposedly „gender

neutral‟ legal system, if a domestic violence victim kills their husband/partner

tormentor they will almost certainly find that the legal system is ill-equipped to

understand the forces which have led to their predicament. According to Easteal,12

women are continuing to be treated in legal and social contexts differently to male

offenders. Therefore questions raised about the reforms made to the defence of

provocation are significant, because they are found to be detrimental to women

having adequate protection from male perpetrated violence and that recent reforms

are unable to respond to female defendants to homicide in domestic violence

contexts.13

The recent reforms of the defence of provocation have been more so in response

to the socially unaccepted excuse of an archaistic legal response to a defendants

violent and fatal reaction of having to “uphold one‟s honour”. This socially

unaccepted excuse of provocation is considered in relation to challenging the use of

the homosexual advance defence or the homosexual panic defence. Furthermore,

10
P W Easteal, ibid.
11
P W Easteal, ibid.
12
P W Easteal, ibid.
13
Sarah Cooper & Mary Crooks, 2010, „New Homicide Laws have proved indefensible‟, The Age, May 23rd 2010,
Available: http://www.theage.com.au/opinion/society-and-culture/new-homocide-laws-have-proved-indefensible-
20100522-w2wr.html
 6

provocation should be considered with distinction from the use of defence of

provocation by women in abusive relationships. The similarity between social

inequalities shared by women and homosexual individuals can be shown in research

that concludes that these groups are subjected to a broad range of informal norms that

are not applied to heterosexual males.14 As Dalton‟s15 study illustrates the emergence

of and construction of homosexuality as being a criminal and deviant behaviour in

Australia‟s socio-legal sphere has a well documented history. The historical creation

of homocriminality is problematic as contemporary legal discourse still constructs

homosexual people and homosexual practices as being deviant.

It is a further problematic that violence is supported by the patriarchal formed

attitudes within the legal system; this is clearly shown by the degrading of certain

members of society by not allowing gender and sexual equality to succeed. Evidence

of the stagnation of gender and sexual equality in Australia is shown in the research

conducted by Tomsen.16 Based on evidence from 74 anti-homosexual homicides that

occurred in New South Wales during the period 1980-2000, Tomsen17 made a

detailed analysis of the social characteristics of the victims and perpetrators. Tomsen

identified a connection between the Australian norm of male identity and the

community support that heterosexual male identities receive. This analysis led to the

14
Roach Anleu, op. cit. & Derek Dalton 2007, „Genealogy of the Australian Homocriminal Subject: A study of two
explanatory models of deviance‟, Griffith Law Review, vol. 16, no. 1, pp. 83 – 106.
15
D Dalton, ibid.
16
Stephen A Tomsen, 2002, „Hatred, murder and Male Honour: Anti-homosexual homicides in New South Wales 1980
– 2000‟, Australian Institute of Criminology Research and Public Policy Series no. 43, Australian Institute of
Criminology, Canberra, Available: http://www.aic.gov.au/documents/4/4/4/%7B44428E17-E0C9-4833-8070-
F59D23ACA0A7%7DRPP43.pdf
17
S A Tomsen, ibid.
 7

confirmation of the concerns and recommendations that were raised in the New South

Wales Attorney General‟s Homosexual Advance Defence inquiry.

Considerable research has been conducted about the use of the homosexual

advance defence in Australia. Sewell18 investigated the inherent heterosexist privilege

and the construction of homosexuality as an “other” in courtroom discourse. Where

the characterisation of the homosexual victim has lead to the uplifting of the

heterosexual defendants innocence in the courtroom. This is supported further where

reported by Sewell19 is the proliferation of the use of the homosexual advance

defence by defence lawyers post Green v R (1997)20. In a study of the case notes of

Green v R (1997) it is concluded that there was little distinction in the majority

judgments made between the arguments of non-violent homosexual advances on one

hand and sexual attacks and sexual abuse on the other.21 The homosexual advance

defence has been used as a substantive morality based defence grounded in the legal

defences of either self-defence or provocation. Alarming also regarding majority

judgment in Green v R (1997) 191 CLR 334 is the finding that a non violent

homosexual advance is not treated similarly to a non violent heterosexual advance,

and that this has certainly lead to a lenience towards moral homophobic prejudice in

homosexual advance defence cases.

18
Jef Sewell 2001, „“I just bashed somebody up. Don‟t worry about it mum, he‟s only a poof”: The “Homosexual
Advance Defence” and Discursive Constructions of the “Gay” Victim‟, Southern Cross University Law Review, vol. 5,
October, pp. 47 – 81.

19
J Sewell, ibid.
20
Green v R (1997) 191 CLR 334
21
Bronwyn Statham, 1999, „The homosexual advance defence: 'Yeah, I killed him, but he did worse to me.' -
Green v R (1997) 191 CLR 334‟, University of Queensland Law Journal, vol. 20, no. 2, pp. 301 – 311, Available:
http://www.austlii.edu.au/au/journals/UQLJ/1999/11.html
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This leads to an inquiry of contemporary society and culture and whether

Australian law remains heterocentric and homophobic and how homosexuality is

mythically linked through homocriminality with incest and paedophilic behaviour? A

theoretical concept of sexual identity claims that sexual identity is not logically

divided into social realms of homosexual/heterosexual, whereas instead individuals

are a part of a culmination of self negation in recognising their own identity. 22

Having this in mind will assist importantly to the question of whether heterocentric

values are being reflected in legal principle and how can change occur to reflect

different values in the Australian legal system. In Anthony Gray‟s23 article these

socio-legal issues are critically considered when a straight person kills a homosexual

person after the homosexual person has made a sexual “advance” toward the straight

person. Gray24 directly questions whether there is a case of the defence of

provocation applying the “reasonable person” standard to assess whether the violent

response to the homosexual advance was reasonable, and answers simply no. As

stated by Kirby J‟s in his dissent judgement of Green v R (1997), „this Court should

not send the message that, in Australia today, such conduct is objectively capable of

being found by a jury to be sufficient to provoke the intent to kill or inflict grievous

bodily harm. Such a message unacceptably condones serious violence by people who

take the law into their own hands‟.25

22
Jeffery Weeks, 1991, „Sexual Identification is a Strange Thing‟, in Editor Charles Lemert, Social Theory: The
Multicultural and Classical Readings, 4th Edition, Westview Press, Boulder, pp. 558-562.
23
Anthony Gray, (2010) „Provocation and the homosexual advance defence in Australia and the United States: law out
of step with community values‟, The Crit, vol. 3, no. 1, pp. 53-72, Available: http://www.thecritui.com/articles/Gray.pdf
24
A Gray, ibid.
25
Green v R (1997) 191 CLR 334 415-416.
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In support Heard‟s26 expose on the criminal legal system has a critical view on the

notion of provocation and its consequences for endorsing violent crimes, in particular

murder. Heard views the criminal trial as subjective rather than objective in its

fundamental direction. Whereby that the victim is often set aside so that the

defendant‟s life is in the limelight position; the defendants troubles, pains and

emotions are what directs the course of judgement as much as (or maybe more so)

than the criminal act of the defendant. Heard‟s condemning of the subjectivity of the

criminal trial stems from a belief that the basis of the legal system was to bring an

objectivity to the ability of mankind being a civilised way of bargaining away

personal retribution and revenge to an ordering of human affairs, civilization. Further

to, is the importance that in reforming the current application of the defence of

provocation in criminal trials that the defence does not become replaced by another

hegemonic hetero-normative legal defence discourse and more importantly that on a

broader scale that the “endemic” heterosexualised legal violence in contemporary

Australia is eliminated.27

Because of the significant influence (as a place of distinction and of ordering

ideologies) the Australian legal discourse in relation to gender differences in

judgement appears to be holding on to archaic ideals. The use of the defence of

provocation in Australia has lead to examine that the legal realm has directed and

26
John Heard 2007, „The privilege of anger (There are some instances in Australian criminal law where acts of
wilful homicide are excused if not endorsed)‟, paper in, On Crime and Law. [online]. Meanjin (Melbourne), v.
66, no. 3, pp. 138 – 145, Availability:
http://search.informit.com.au.ezproxy.flinders.edu.au/fullText;dn=200711816;res=APAFT
27
Ben Golder, 2004, The homosexual advance defence and the law/body nexus: Towards a poetics of Law reform,
Murdoch University Electronic Journal of Law, vol. 11, no. 1, available
http://www.murdoch.edu.au/elaw/issues/v11n1/golder111nf.html, pp. 11-12
 10

taken direction from the social-cultural realm. As well as examining how individuals

are dealt with qualitatively that are outside of the white heterosexual middle class

Anglo-Saxon male model. At this present time the common law that has been built

up in relation to the defence of provocation is not in general being seen as relevant or

more so it is seen as though it cannot justify itself. A balance between understanding

the complex personhood of individuals and the changes to cultural norms is needed to

obtain equality for defendants that use the defence of provocation. Such as the

examination of the over representation of indigenous women in the criminal justice

system being an important aspect of understanding the multi-dimensional issues

concerning gender equality for Australian individuals. Whereas intersectional

approaches are considered to understand individual social-cultural contexts of

indigenous and non-white battered woman charged with homicide28. It follows that a

measure of objectivity is needed to discern that which is visible from that which is

invisible, how there is a need within the law to conceptualize the presence and

absence of voices and how these voices are prohibited or given permission in the

present to be heard.

28
Julie Stubbs and Julia Tolmie, 2008, „Battered Women Charged With Homicide: Advancing the Interests of
Indigenous Women‟, The Australian And New Zealand Journal of Criminology, vol. 41, no. 1, pp. 138 – 161.
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REFERENCE LIST

Cooper, S & Crooks, M., 2010, „New Homicide Laws have proved indefensible‟, The

Age, May 23rd 2010, Available: http://www.theage.com.au/opinion/society-

and-culture/new-homocide-laws-have-proved-indefensible-20100522-

w2wr.html

Dalton, D., 2007, „Genealogy of the Australian Homocriminal Subject: A study of two

explanatory models of deviance‟, Griffith Law Review, vol. 16, no. 1, pp. 83 –

106.

Easteal, PW. 1993 „Killing the beloved: homicide between adult sexual intimates,

Australian Institute of Criminology, Canberra, Available

http://www.aic.gov.au/documents/9/2/F/%7B92FC5640-1A81-4DF3-BE06-

398E9568859F%7Dbeloved.pdf

Golder, B., 2004, „The homosexual advance defence and the law/body nexus: Towards a

poetics of Law reform‟, Murdoch University Electronic Journal of Law, vol.

11, no. 1, available

http://www.murdoch.edu.au/elaw/issues/v11n1/golder111nf.html

Gordon, A., 1997, Ghostly Matters: Haunting and the Sociological Imagination,

University of Minnesota Press, Minneapolis.

 12

Gray, A., 2010, „Provocation and the homosexual advance defence in Australia and the

United States: law out of step with community values‟, The Crit, vol. 3, no. 1,

pp. 53-72, Available: http://www.thecritui.com/articles/Gray.pdf

Heard, J., 2007, „The privilege of anger (There are some instances in Australian criminal

law where acts of wilful homicide are excused if not endorsed)‟, paper in, On

Crime and Law. [online]. Meanjin (Melbourne), v. 66, no. 3, pp. 138 – 145.

Roach Anleu, SL., 1999, „Ch 9. Women and criminal deviance‟, in Deviance Conformity

and Control, 3rd edition, Addison Wesley Longman, Australia, pp. 225 – 254.

Sewell, J., 2001, „“I just bashed somebody up. Don‟t worry about it mum, he‟s only a

poof”: The “Homosexual Advance Defence” and Discursive Constructions of

the “Gay” Victim‟, Southern Cross University Law Review, vol. 5, October,

pp. 47 – 81.

Seuffert, N., 1999, „Domestic Violence, Discourses of Romantic Love, and Complex

Personhood in the Law‟, Melbourne University Law Review, vol. 23, no. 1,

April, pp. 211 – 240.

Statham, B., 1999, „The homosexual advance defence: 'Yeah, I killed him, but he did

worse to me.' - Green v R (1997) 191 CLR 334‟, University of Queensland

Law Journal, vol. 20, no. 2, pp. 301 – 311, Available:

http://www.austlii.edu.au/au/journals/UQLJ/1999/11.html
 13

Stubbs, J & Tolmie, J., 2008, „Battered Women Charged With Homicide: Advancing the

Interests of Indigenous Women‟, The Australian And New Zealand Journal of

Criminology, vol. 41, no. 1, pp. 138 – 161.

Thompson, HS. & Steadman, R., 1998, „Fear and Loathing In Las Vegas: A Savage

Journey To The Heart Of The American Dream‟, Flamingo, London, preface.

Tomsen, SA., 2002, „Hatred, murder and Male Honour: Anti-homosexual homicides in

New South Wales 1980 – 2000‟, Australian Institute of Criminology

Research and Public Policy Series no. 43, Australian Institute of

Criminology, Canberra, Available:

http://www.aic.gov.au/documents/4/4/4/%7B44428E17-E0C9-4833-8070-

F59D23ACA0A7%7DRPP43.pdf

Weeks, J., 1991, „Sexual Identification is a Strange Thing‟, in Editor Charles Lemert,

Social Theory: The Multicultural and Classical Readings, 4th Edition,

Westview Press, Boulder, pp. 558 – 562.

Green v R (1997) 191 CLR 334