Homicide Law Reform and Gender: Configuring Violence

Article excerpt

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. …