Homicide Law Reform and Gender: Configuring Violence

By Morgan, Jenny | Australian and New Zealand Journal of Criminology, December 2012 | Go to article overview

Homicide Law Reform and Gender: Configuring Violence


Morgan, Jenny, Australian and New Zealand Journal of Criminology


Abstract

This article charts aspects of the engagement by formal law reform agencies with feminist ideas in the context of homicide law reform. This requires, of course, a concentration on violence against women. The article uses law reform work on the provocation defence to map the ways in which violence against women was an apparent driver of reform. It has Victorian law reform as its focus, and concentrates on the various manifestations of independent law reform agencies in Victoria--the Victorian Law Reform Commission (VLRC), and its two predecessor agencies, the Law Reform Commission of Victoria (LRCV) and the Law Reform Commissioner. The article explores the thesis that when law reform, at least homicide law reform, is driven by the social context in which the legal phenomenon of interest occurs, one is more likely to get progressive legal change than where reform is driven by legal categories. However, that social context had itself to be configured and the paper briefly traces the identification of 'domestic violence' as a social phenomenon.

Keywords

domestic violence, gender, provocation

Introduction

This article charts aspects of the engagement by formal law reform agencies with feminist ideas in the context of homicide law reform. This requires, of course, a concentration on violence against women. My article uses law reform work on the provocation defence to map the ways in which violence against women was an apparent driver of reform. It has Victorian law reform as its focus, and concentrates on the various manifestations of independent law reform agencies in Victoria--the Victorian Law Reform Commission (VLRC), and its two predecessor agencies, the Law Reform Commission of Victoria (LRCV) and the Law Reform Commissioner. I explore the thesis that when law reform, at least homicide law reform, is driven by the social context in which the legal phenomenon of interest occurs, one is more likely to get progressive legal change than where reform is driven by legal categories (see Graycar and Morgan, 2005). However, that social context had itself to be configured, and the paper briefly traces the identification of 'domestic violence' as a social phenomenon.

The partial defence of provocation

The partial defence of provocation has provided a perennial focus of modern law reform. Provocation, at common law, reduces murder to manslaughter. Broadly, the defence is available where the accused was provoked by the actions of the victim to lose his (or her) self-control and where the 'ordinary person' could have also lost self-control and acted in the way the accused did (see Stingel (1990)). The defence has, at least in the last 30 years, been controversial for a series of reasons. Should there be a defence where the perpetrator has formed the intention to kill (see Parker (1964); Johnson (1976))? Is it 'ordinary' to respond to provocative conduct with homicidal violence? What should be recognized as causing a perpetrator's 'blood to boil', so that they are 'out of control'? Are words alone enough (Morgan, 1997)? Did the accused have to act suddenly or could provocation accumulate over time (Parker (1964); Moffa (1977))? Is there a need for a triggering incident (R v R (1981))? What characteristics, if any, should be attributed to the ordinary person (Stingel (1990); Masciantonio (1995))? When the ordinary person test was separated into two aspects concerned with the gravity of the provocation, and the response of the ordinary person, could the jury understand the test? If the test had become so complex that juries could not understand it, should it even remain a defence, at least where the mandatory sentence for murder had been removed? These are all intensely interesting questions for the law reformer. But my interest is whether and how the defence configured violence against women. More particularly, my focus in this article is whether and how formal law reform bodies constructed violence against women as a relevant consideration in their deliberations around reform of defences to homicide.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Homicide Law Reform and Gender: Configuring Violence
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.