By Kate Fitz-Gibbon
This ebook seriously examines the operation of the partial defence of provocation in more than a few comparative foreign jurisdictions. Centrally considering conceptual questions of gender, justice and the position of denial within the legal justice process, Fitz-Gibbon explores the divergent ways taken to reforming the legislation of provocation.
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Additional resources for Homicide Law Reform, Gender and the Provocation Defence: A Comparative Perspective
It is not a mitigating circumstance for a husband who either kills or assaults their spouse 42 Homicide Law Reform, Gender and the Provocation Defence that their actions were a response to being advised by their spouse of a decision to end their relationship . . Married women have the right to choose their own destiny. Signiﬁcant punishments will be imposed upon those who inﬂict violence on them for exercising that right. (Maglovski, per Beech-Jones J at 81–91) The failed use of the provocation defence in these two cases, alongside the clear condemnation provided by each of the judges in sentencing, arguably indicates a shift that has occurred in relation to the acceptance of provocation in cases where the provoked actions of the victim need to be read and understood using a cultural lens.
He then woke during the night and discovered Morton and Wilkins having sex. In response Cranston claimed to have lost his self-control during which he killed his wife with a single stab wound to the heart and killed Wilkins with multiple wounds. In his ‘999’ call to the police immediately afterwards he stated, ‘Yes, it is me. I found my wife and one of my best friends shagging and I lost my rag and I just stabbed them’ (as cited in Hodge, 2009). Over the course of the seven-day trial, Cranston gave evidence to the jury that upon discovering his wife and friend having sex he was ‘just dumbstruck.
In doing so, it challenges the current applicability of the defence given its propensity to uphold outdated notions of male honour, women as property and the legitimisation of violence against the homosexual or cultured ‘other’. Adultery and ‘crimes of passion’ Central to the historical foundations of the provocation defence is the notion of women as property and the need to respond to an act of adultery in a way that restores honour to a male scorned. As noted previously, in the 17th century and after (following the 1707 decision in Mawgridge), adultery was established as one of four contexts to which the provocation defence applied to reduce what would otherwise be murder to manslaughter.
Homicide Law Reform, Gender and the Provocation Defence: A Comparative Perspective by Kate Fitz-Gibbon